Hinman, J.
The questions raised upon this motion relate to the rulings of the superior court in the admission of testimony. The issue depended upon whether the defendant, at the time the copy was left with him, as the garnishee of Gale, had goods liable to attachment concealed in his hands and belonging to Gale, or was indebted to him.
The defendant testified, that he had no such goods, and was not indebted. He admitted, that he had received goods to a greater amount than the sum claimed; but insisted, that they were rather purchased in satisfaction of debts due him, or, were received under a mortgage from Gale, to se[233]*233cure certain notes; and that they had been fairly sold, pursuant to a power contained in the mortgage, and the proceeds applied in payment of said notes.
The plaintiff’s claim was, that the debts and notes, claimed by the defendant as due from Gale, were fictitious, fraudulent and void; and also, that the defendant had property, to a large amount, over and above all his honest claims.
The case, then, turned upon the validity and bona fide character of the indebtedness of Gale to the defendant.
In order to shew, that it was invalid and fraudulent, and the mortgage void, the plaintiff was permitted to prove, that before any such indebtedness accrued, Coe and Gale entered into a conspiracy to cheat and defraud all persons whom they could induce to trust Gale, by fraudulently representing to them, that he was a man of wealth, responsibility and credit; and that he would be supported by the funds of Coe; and that, for this purpose, Coe should, from time to time, furnish money to enable Gale to meet his early payments; and the property thus obtained by Gale should be shifted into Coe’s hands, and he should dispose of and secrete it, so that it could not be attached; and the proceeds thereof should be kept from Gale’s creditors, while, he, in the meantime, should become utterly bankrupt; and in connection with this, that the debts and notes which Coe claimed to be due from Gale, all originated in this fraudulent combination, and for money lent to him for the purpose aforesaid; and under which fraudulent conspiracy, much of the property in the defendant’s hands was obtained.
We think this testimony was properly admitted. Indeed, it is not very strenuously claimed, that, for debts thus corruptly contracted, Coe would have a right, as against bona fide creditors of Gale, to retain property to pay himself. His position is no better than that of a purchaser of property for the purpose of defeating the creditors of the vendor from obtaining payment; and such a purchaser cannot retain the property against creditors, notwithstanding he pays full value of it.
It is insisted, however, that the plaintiff’s claim shows, the property never belonged to Gale, but to the persons of whom he fraudulently obtained it. That would be so, undoubtedly in a contest between Gale or Coe, and the per[234]*234sons of whom the property was obtained: but with that, the plaintiff has nothing to do, until Coe shews, that he has redelivered it to the original owners, or has accounted to them for it. He cannot, while he is claiming the property under his fraudulent purchase, prove, or use, his own fraud, to defeat the plaintiff. If he had accounted to the original owners for it, it might be inequitable to compel him to account for it again to the plaintiff; but, until he does that, it does not lie in his mouth to deny the title under which he claims.
Again, it is said, that the conspiracy was a fact not within the issue, and, therefore, not admissible. It is true, the only question was, whether the defendant had property in his hands belonging to Gale, or was indebted to him; and not, how the property was obtained. But that he had such property, was an admitted fact; and he set up Gale's indebtedness to him, as a reason for his not accounting for it to the plaintiff. The conspiracy was then shewn, for the purpose of evincing the fictitious and fraudulent character of this pretended indebtedness; and this being shewn, the defendant was left without excuse, with Gale's property in his hands, to be accounted for at its fair value. Coe testified and claimed, that Gale’s indebtedness to him was bona fide. This evidence went directly to contradict him, and to disprove his claim. We do not see how it could have been excluded.
It is claimed, that the declarations of Gale, made to the witnesses Rice and Ripley, as stated in their depositions, were improperly received, the defendant not being present when they were made.
The rule on this subject, is, that any declaration made by a co-conspirator, pursuant to the common object, and in furtherance of it, is admissible against all of them, when the combination is once established. 1 Phil. Ev. 94, 5. &c. These declarations were not objected to, on the ground that sufficient evidence of the combination had not been given. Had they been objected to, on that ground, it would have been for the court to determine, whether there was sufficient evidence to warrant the jury in finding such a combination as was claimed. As the parties treated the evidence on that point as sufficient, we do not see any other objection that [235]*235could be raised to these declarations. They appear to have been made while Gale was engaged in purchasing goods the witnesses on credit, having first paid for some that he had previously bought of them; and his representations in regard to his responsibility and his means of obtaining money, by the aid of Coe, were such as were well calculated to carry out the main object of the combination. We do not see, therefore, why they do not come strictly within the letter of the rule.
The court permitted the plaintiff to prove the conduct of Coe in paying the debts, and accepting orders of Gale, after his failure. This is objected to, as improper; but, upon what plausible ground, we have been unable to see. If the defendant’s present claim is correct, that Gale, on his failure, owed him, and still owes him, a large sum, it would seem to be unaccountable, that he should voluntarily go on increasing the indebtedness; and his doing so, is, as it seems to us, very strong evidence, from which the jury might reasonably draw the inference, that his present claim was unfounded. It is evidence, in the nature of a confession or admission, inconsistent with his present claim; and is, perhaps, as much to be relied upon as any actual admission could be, inasmuch as there is but little room for misconstruing conduct of this description.
Of a similar character was the evidence going to show, that the mortgaged property was left in Gale’s possession, after the mortgage. This, in ordinary cases, would be conclusive evidence of a secret trust, which would render the mortgage fraudulent in law; and, in any aspect, it is strong evidence, that the mortgage was a mere colourable thing.
The remaining question, is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered, as in any way tending to prove the combination claimed.
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Hinman, J.
The questions raised upon this motion relate to the rulings of the superior court in the admission of testimony. The issue depended upon whether the defendant, at the time the copy was left with him, as the garnishee of Gale, had goods liable to attachment concealed in his hands and belonging to Gale, or was indebted to him.
The defendant testified, that he had no such goods, and was not indebted. He admitted, that he had received goods to a greater amount than the sum claimed; but insisted, that they were rather purchased in satisfaction of debts due him, or, were received under a mortgage from Gale, to se[233]*233cure certain notes; and that they had been fairly sold, pursuant to a power contained in the mortgage, and the proceeds applied in payment of said notes.
The plaintiff’s claim was, that the debts and notes, claimed by the defendant as due from Gale, were fictitious, fraudulent and void; and also, that the defendant had property, to a large amount, over and above all his honest claims.
The case, then, turned upon the validity and bona fide character of the indebtedness of Gale to the defendant.
In order to shew, that it was invalid and fraudulent, and the mortgage void, the plaintiff was permitted to prove, that before any such indebtedness accrued, Coe and Gale entered into a conspiracy to cheat and defraud all persons whom they could induce to trust Gale, by fraudulently representing to them, that he was a man of wealth, responsibility and credit; and that he would be supported by the funds of Coe; and that, for this purpose, Coe should, from time to time, furnish money to enable Gale to meet his early payments; and the property thus obtained by Gale should be shifted into Coe’s hands, and he should dispose of and secrete it, so that it could not be attached; and the proceeds thereof should be kept from Gale’s creditors, while, he, in the meantime, should become utterly bankrupt; and in connection with this, that the debts and notes which Coe claimed to be due from Gale, all originated in this fraudulent combination, and for money lent to him for the purpose aforesaid; and under which fraudulent conspiracy, much of the property in the defendant’s hands was obtained.
We think this testimony was properly admitted. Indeed, it is not very strenuously claimed, that, for debts thus corruptly contracted, Coe would have a right, as against bona fide creditors of Gale, to retain property to pay himself. His position is no better than that of a purchaser of property for the purpose of defeating the creditors of the vendor from obtaining payment; and such a purchaser cannot retain the property against creditors, notwithstanding he pays full value of it.
It is insisted, however, that the plaintiff’s claim shows, the property never belonged to Gale, but to the persons of whom he fraudulently obtained it. That would be so, undoubtedly in a contest between Gale or Coe, and the per[234]*234sons of whom the property was obtained: but with that, the plaintiff has nothing to do, until Coe shews, that he has redelivered it to the original owners, or has accounted to them for it. He cannot, while he is claiming the property under his fraudulent purchase, prove, or use, his own fraud, to defeat the plaintiff. If he had accounted to the original owners for it, it might be inequitable to compel him to account for it again to the plaintiff; but, until he does that, it does not lie in his mouth to deny the title under which he claims.
Again, it is said, that the conspiracy was a fact not within the issue, and, therefore, not admissible. It is true, the only question was, whether the defendant had property in his hands belonging to Gale, or was indebted to him; and not, how the property was obtained. But that he had such property, was an admitted fact; and he set up Gale's indebtedness to him, as a reason for his not accounting for it to the plaintiff. The conspiracy was then shewn, for the purpose of evincing the fictitious and fraudulent character of this pretended indebtedness; and this being shewn, the defendant was left without excuse, with Gale's property in his hands, to be accounted for at its fair value. Coe testified and claimed, that Gale’s indebtedness to him was bona fide. This evidence went directly to contradict him, and to disprove his claim. We do not see how it could have been excluded.
It is claimed, that the declarations of Gale, made to the witnesses Rice and Ripley, as stated in their depositions, were improperly received, the defendant not being present when they were made.
The rule on this subject, is, that any declaration made by a co-conspirator, pursuant to the common object, and in furtherance of it, is admissible against all of them, when the combination is once established. 1 Phil. Ev. 94, 5. &c. These declarations were not objected to, on the ground that sufficient evidence of the combination had not been given. Had they been objected to, on that ground, it would have been for the court to determine, whether there was sufficient evidence to warrant the jury in finding such a combination as was claimed. As the parties treated the evidence on that point as sufficient, we do not see any other objection that [235]*235could be raised to these declarations. They appear to have been made while Gale was engaged in purchasing goods the witnesses on credit, having first paid for some that he had previously bought of them; and his representations in regard to his responsibility and his means of obtaining money, by the aid of Coe, were such as were well calculated to carry out the main object of the combination. We do not see, therefore, why they do not come strictly within the letter of the rule.
The court permitted the plaintiff to prove the conduct of Coe in paying the debts, and accepting orders of Gale, after his failure. This is objected to, as improper; but, upon what plausible ground, we have been unable to see. If the defendant’s present claim is correct, that Gale, on his failure, owed him, and still owes him, a large sum, it would seem to be unaccountable, that he should voluntarily go on increasing the indebtedness; and his doing so, is, as it seems to us, very strong evidence, from which the jury might reasonably draw the inference, that his present claim was unfounded. It is evidence, in the nature of a confession or admission, inconsistent with his present claim; and is, perhaps, as much to be relied upon as any actual admission could be, inasmuch as there is but little room for misconstruing conduct of this description.
Of a similar character was the evidence going to show, that the mortgaged property was left in Gale’s possession, after the mortgage. This, in ordinary cases, would be conclusive evidence of a secret trust, which would render the mortgage fraudulent in law; and, in any aspect, it is strong evidence, that the mortgage was a mere colourable thing.
The remaining question, is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered, as in any way tending to prove the combination claimed. The motion shews, that they were offered and received, after the plaintiff’s evidence on that subject, had been introduced. Had they been admitted for that purpose, or if, under the circumstances, they could have had any influence with the jury on that point, we should feel bound to advise a new trial, on this account.
They do not appear to have accompanied any act of Gale, [236]*236in pursuance of the combination, and, therefore, were not made in furtherance of it. But they seem, rather, to be in the nature of admissions of Gale, after his failure, of what he, individually, had done. He did not allude to the defendant, in any part of them. Taken together, they amount to an admission by Gale, that he was a bankrupt; that he had cheated his creditors; and that they had been foolish in trusting him. No one can doubt the truth of these admissions, certainly not the two first of them; and if his creditors could have known him, as he appears in the evidence in this case, no one could doubt the folly of giving him credit. Still if the evidence could have had any injurious effect upon the defendant, he would be entitled to a new trial. We think, however, they could have had no such effect; and the practice of granting new trials, in cases where substantial justice has been done, merely because some immaterial matter has been introduced on the trial, ought not to be encouraged. In this case, the truth of these admissions of Gale stand out, prominently, some one or more of them, in almost every piece of the evidence reported in the motion; and the whole trial seems to have proceeded upon the ground of the hopeless bankruptcy of Gale, and his dishonesty in contracting his debts; and we are told, that such was the case. The defendant himself stated, that he had a large debt against him. So the testimony of Rice, Ripley, Boardman, Brewster and others, shews large debts in favour of each of them; and that the debts were contracted, by means of his fraudulent representations.
Now, as this evidence did not tend at all to connect the defendant with Gale, and was not introduced or used for that purpose; and, as the facts which it did prove, were abundantly sustained, by other evidence in the case; and especially, inasmuch as they were conceded facts, and were acted on, as such, throughout, we do not see how the defendant could have been prejudiced by them. And in this connexion, it is not perhaps unworthy of notice, that the jury were very carefully cautioned against suffering the fraud of Gale, or of the defendant, from having any undue weight with them; and they were distinctly charged, that the plaintiff could not recover, on the ground of the fraud of any of the parties; but only for goods belonging to Gale in the [237]*237defendant’s hands, or his indebtedness to him, at the time of leaving the copy.
Under all these circumstances, although we have not been able to see the strict propriety of the evidence, yet, for the reasons above given, we do not advise a new trial.
In this opinion the other Judges concurred.
New trial denied.