Beals v. Guernsey

8 Johns. 446

• Court: New York Supreme Court
• Decided: October 15, 1811
• Status: Published

Opinion

Per Curiam.

The two principal points, in this case, are, 1. Whether the sale of the whiskey to the plaintiff, was, under the circumstances of the case, fraudulent; and, 2. Whether the testimony of what was sworn by Tiffany, upon the former trial, was admissible.

The better opinion seems to be, that if the testimony of what a witness swore at á former trial, be unaccompanied. with the postea or record of the former suit, and that be made an objection, at the time, to the admission of such testimony, the objection is good. It was so ■ ruled in 2 Show. 168. Anon.; and other cases admit the existence of the rule. (1 Stra. 162. Peake’s Ev. 40.) But the question here is, whether even, independent of that testimony, the plaintiff would not have been entitled to recover.

When the plaintiff bought the whiskey, there was a judgment "against Johnson, of two years’ standing, and he was also under arrest, and upon the liberties of the gaol and a reputed bankrupt. But the execution in this case was not issued and delivered to the sheriff, until some time after the sale, and there was no evidence to bring home to the knowledge of the plaintiff the existence of the judgment in favour of Rodman. There were no circumstances to warrant the inference that the plaintiff knew of that judgment, and purchased the whiskey with an intent to defeat the execution upon it. As the judgment was nearly two years old, the plaintiff cannot well be supposed (admitting he knew. of such a judgment) to have purchased, for the purpose of defeating that creditor, for what ground had he to presume any immediate execution, considering the delay that had already taken place since the date of the judgment ? The circumstance of the non-delivery of the property is sufficiently accounted for, by the sickness of Taylor, in whose store it was deposited, and it was there not in the custody of Johnson, but of Gorham, one of the bail to the sheriff, for the liberties granted to Johnson. If this purchase be fraudulent and void, there would be no safety in dealing, in personal property, with a man against whom there was a judgment. The old cases, before the statute of frauds of 29 Car. II. have said, that if a man, after judgment, and to defraud execution, sell his goods for a valuable consideration, and the buyer knew of the ju(iglnent5 the sale is void under the 13 Eliz. c. 5. (Dalison's Rep. 79.) But the modern doctrine is not merely that the purchaser must know of the judgment. That fact will not, of itself, defeat a bona fide sale, or make it, in judgment of law, fraudulent. If that was the rule of law, it would put a most inconvenient check to the circulation of personal property. The rule is, that the purchaser, knowing of the judgment, must purchase, with the view and purpose to defeat the creditor’s execution; and if he does it with that purpose, it is iniquitous and fraudulent, notwithstanding he may give a full price. The question of fraud depends upon the motive. The purchase must be bona fide, as well as upon good consideration. T his was the. rule as declared by Lord Mansfield, upon repeated occasions. (4 Burr. 474, 475. Cowp. 434.) The non-delivery of the goods, at the time of the sale is, of itself, a circumstance of fraud, as was stated in Twyne's case; (3 Co. 80. b.) but it is only prima facie evidence of fraud, and the circumstance may admit of explanation. (10 Ves. 145. 2 Bos. & Pull. 59.) Here it is fully explained. The statute of frauds on this point, and which we have adopted, (Laws, vol.” 1. 389.) says, that the execution shall not bind goods, but from the delivery, and this provision was made for the benefit of purchasers. In one case Lord Hardwicke held that a sale of goods might be valid, even after delivery of the execution, and until execution executed. (Lowthal v. Tompkins, 2 Eq. Cas. Abr. 381.)

As here was not evidence to warrant the inference, that the purchase by the plaintiff was made with intent to defeat the execution of Rodman, and, especially, as there was no evidence that the plaintiff even knew of that judgment, the verdict was correct, and the charge of the judge well founded.

The interest which was allowed, by way of damages, was just. The plaintiff ought not to be deprived of his property, f#r years, without compensation for the loss of the use of it, and the jury had a discretion to allow in- . , . , _ , , ,1 , • terest in this case, as damages. It has been allowed in actions of trover, and the same rule applies in trespass when brought for the recovery of property. The motion on the part of the defendant must be denied.