Fisher v. True , 38 Me. 534 ( 1854 )

Shepley, C. J.

— The trial took place in October, 1851. The exceptions are first presented for consideration in July, 1854.

The plaintiff claimed to be the owner of certain goods by purchase from H. G-. O. Weston, during the month of April, 1848. The defendant, as sheriff, caused them to be attached as the property of Weston, on a writ against him in favor of Lincoln, and alleged, that the sale from Weston to the plaintiff was fraudulent.

The plaintiff was permitted to introduce thé testimony of Allen and Shaw, to prove that Weston, before he sold the goods to the plaintiff, offered to sell the same goods to them.

The general rule is, that the declarations of one, who may be a competent witness, cannot be received in evidence. To admit them would be to allow that person to affect the rights of others without assuming the obligations imposed by an oath, and would deprive the party of a right to have him state all facts under that sanction.

The declarations of Weston made to Allen and Shaw, were not suited to prove any fact necessary to be established ; and they did not constitute a part of the res gestee of any transaction. They were erroneously admitted.

The declarations of Weston made before, not after the sale, and tending to prove the sale on his part to the plaintiff to have been fraudulent, should for that purpose have been received in evidence. Howe v. Reed, 3 Fairf. 515. The reason for this exception to the general rule is, that one fact to be established by the defence was his fraudulent Intention in making that sale, which might be inferred from his declarations respecting it or respecting other sales made ;by him about the same time. His declarations made to Jones while holder of the note by virtue of which the attachment was made, respecting the sale of the same goods to another person to prevent an attachment of them, were 'admissible. His declarations made subsequent to the sale, and having a tendency to impeach it, were correctly excluded. .

The testimony of Allen, that he advised the plaintiff to purchase the goods, should not have been received. It only recited a conversation between others than the parties to the sale and purchase. It could have no legitimate tendency to prove what was the true character of the sale subsequently made. Exceptions sustained, verdict set aside, and new trial granted.