Cadbury v. Nolen ( 1847 )

Coulter, J.

The first exception is without any merit. The names of witnesses, so far as I know, are not inserted in the notice anywhere, and the rule of the court in the district does not require it to be done.

The second exception, which relates to the admission of Patrick Nolen as a witness, was properly considered as a matter affecting his credibility more than hiS competency. There was evidence that he had sold the rafts to James, and however strong the evidence was, even at that preliminary examination, that the affair was a fraud, yet the witness had no direct interest in the event of the suit, because the alleged sale' was good as between Patrick and James, and as against Patrick himself divested his interest, so that he never could lawfully claim any thing produced by the suit, founded on the alleged invalidity of that sale. This is the true legal reason why he was not an incompetent witness.

The third error assigned is in admitting the deposition of William Mathews. But as that deposition is not on the paper-book, I decline to notice, the exception under the rule of this court on the subject.

There are five other errors assigned, which all relate to the manner in which-the coimt instructed the jury upon the subject of the alleged fraud, and which impugn the mode and manner in which the court commented on the facts. The counsel below submitted no points to the court by which they would have been drawn precisely to the legal position maintained by counsel here, as the true aspect of the case. The court wander over the whole facts, and view them with a strong bias, and intimate that they involve no actual fraud, but give no instruction as to what constitutes legal fraud; and the cause has been argued pretty much in the same way here. The apprehension, or perhaps more properly the comprehension, of actual fraud, depends much upon the moral sensibilities of the individual who contemjdates the facts out of which it is supposed to arise. It is not, therefore, giving all the light and aid to a jury which they ought to receive from the court, to tell them “the jury will decide whether there was a Iona fide sale of the timber by Ralston to Patrick, accompanied with clear and exclusive possession, or only a colourable delivery of possession to cloak it from the creditors without a bona fide sale of the title,” because, under such circumstances, it is often a matter of total indifference whether the alleged sale was bona fide or not. As against creditors it may not have the taint of actual fraud, and yet have the invalidity of legal fraud, although perfectly bona fide. Besides, the learned judge ought to have told the jury what constituted “clear and exclusive possession,” as the greatest amount of difficulty in many cases of this class arises from the description or kind of possession accompanying and following the alleged transfer. The court made a strong argument to the jury to evince that no actual fraud existed, and they said emphatically, “ taking Ralston’s testimony to be the true view of the case, are any' grounds disclosed for treating his sale to Patrick as fraudulent ?” This is a pregnant inquiry, and, taken in connection with all the court said before, could only be understood by the jury to m,ean that from all the testimony of Ralston, (whom the court, near the close of the charge, call the “ champion of the defence,”) there was no fraud, even according to the strongest evidence in favour of the defendant. And so instructing, I think the jury were misled, and that it was error in the court.

It appears to me to be a very gross case, with fraud sticking out at its elbows and knees, and especially and strongly so by the testimony of the said Ralston.

Ho says “that I met Pat Nolen, and told him that the sheriff was coming on me, and that I would give up to McCord my property. Patrick told me I had better not do it, for McCord would serve me as Irvin did. But he advised me to sell it to him, and the timber could be run down, and I could get the proceeds and divide it among my creditors. I thought the plan good; he had been a friend. I said it was his timber after this. He took every thing I had that the sheriff could seize, timber, grain and all. He gave me notes for the timber to the amount of about $800. These are the six notes. They were given in a private room. I had got $10 from Joel Cadbury, to enable me to take down the lumber. I gave Patrick $25 or $30 of these notes — relief notes — in the private room. We had Mathews outside to witness. We wore locked up. We came out in an entry. James was there. Patrick counted and gave me the money I had given him in the room, calling the ones tens, and the twos twenties.- The money in that way came to about $200. After that, I always said the lumber was Patrick’s. The notes for $800 were to be returned when the lumber was sold and money paid. I had got the hands to run the raft down, but told them it was Patrick’s. I stuck to the raft. Was along when it was left at Quigley’s, the water being low.” This is the outline of Ralston’s testimony; the filling up only gives blotches of deeper hue. As a finale, however, he says that Patrick sold to his brother James, who was not worth a groat, with a view, as James told him, to keep it from creditors, with much more still darkening the aspect of the case. Now it appears to me that this disclosed a case of actual fraud, with a deep moral taint. There was secrecy, concealment, falsehood, duplicity — all with a view of defeating, or at least delaying and hindering the creditors of Ralston. There is mingled up with the case acts which the law abhors, and which are resorted to for the purpose of overcoming the law and the rights of others. This appears to me to be actual fraud. But can there be a doubt of its being a case of legal fraud? There was no delivering of possession, at least no evidence of it. It is true that a raft is not the subject of manual delivery, but every thing in the power of the parties ought to have been done. Hence as to a ship at sea, a symbolical delivery is sufficient. But here nothing whatever was done. There was. neither symbolical delivery nor any declaration or manifestation of delivery, except what might be implied from Ralston’s telling the hands and others that the lumber was Nolen’s. But Ralston could have left the raft, after making a public declaration in the presence of witnesses, that he delivered it up and over to Nolen. This would have been some manifestation to the public of the delivery of possession and change of property. But instead of that, Ralston continues on the raft just as he had done before, and remains with it till the water fails, and it is stowed away at Quigley’s. He furnishes considerable part of tjie money that was to pay expenses, &c. There was not that visible, open change of possession which the law requires, and it was the duty of the court so to instruct the jury, because in such cases the court must judge as to those acts which are sufficient evidence of delivery; Clow v. Woods, 5 Serg. & Rawle, 275; Streeper v. Eckart, 2 Whart. 308; Carpenter v. Mayer, 5 Watts, 483; Young v. McClure, 2 Watts & Serg, 147; Avery v. Street, 6 Watts, 247, cum multís aliis.

One thing more ought, perhaps, to be noticed. The court submitted to the jury the point of notice to James Nolen, as if it was unproved. That is a matter of which the jury are the rightful judges. That James knew the fraud, it was necessary to establish. But Ralston swears lie did; McClintock swears be did know it; and both of them say that his purchase from Patrick was only ancillary to the agreement between Ralston and Patrick, as James told them both, and that accords with the fact that Patrick after-wards contracted, in his own name, for the sale of the raft, with Brady and Foreman, and received part of the money.

Judgment reversed, and a venire de novo awarded.

Mr. Justice Burnside did not sit on this case, a near relation of his being interested.