Reed v. Newcomb , 62 Vt. 75 ( 1889 )

The opinion of the court was delivered by.

Powers, J.

No copy of the deposition of the plaintiff has-been furnished us. The objections, therefore, noted in the deposition are not before us.

It was objected that the notary before whom the deposition was made was incompetent for that he was a second cousin of the plaintiff; The case of Churchill v. Churchill, 12 Vt. 661,. is 'decisive on this point against -the defendants. • Under our law first cousins are of the fourth degree of relationship, and all relationship beyond them is beyond the fourth degree.

The assignment made by the defendants for the benefit of' creditors recited, among other things, that Frank L. Newcomb was the agent of the defendant, Sarah F., in carrying on business. This instrument was executed under the hands and seals of both defendants, and was made under the provisions-of chapter 94, R. L., for the benefit of creditors, and the plaintiff was named as a creditor of Sarah F., who was declared in the assignment to be the principal in the business. This assignment obviously was admissible in evidence, as it contained an admission that Sarah F. was conducting the business in the progress of which the plaintiff’s account accrued. But we do not think that it is a conclusive admission, admitting of no contradiction, as claimed by the plaintiff.

The plaintiff was no party to the assignment. It was a voluntary proceeding on the part of the defendants, and so as to the plaintiff was res inter alios acta. It does not stand like the recitals in deeds, bonds and other instruments executed by and to the parties to such instruments. But even if it did, fraud in-the execution of the instrument might be shown in a suit at law based upon it. If the execution of an instrument under seal even be effected by fraud, it is not a valid instrument. It is not the true contract of the parties.

The defendant, Sarah E., offered to show that her signature to the assignment was procured by fraudulent representations of her husband, and the court excluded the evidence. This was error. The authorities cited by defendants are plus on this point.

Judgment reversed and cause remanded for new trial.