Gardner v. Preston

2 Day 205

Opinion

By the Court.

The general question is, Whether the testimony offered was admissible, to prove the combination and fraud, for the redress of which the plaintiff instituted his action ?

It is for the Court to decide, Whether the evidence conduced at all to the proof of the fact, which was to be ascertained. But this point having been determined, the question how far it conduced to prove the fact, is exclusively within the cognizance of the jury,

(a)

Direct evidence, for the most part, is neither to be required nor expected ; and this remark is of peculiar importance, in reference to the proof of fraud. “ The nature of u the thing itself, which is generally carried on in a secret “ and clandestine manner, does not admit of [positive] evi- “ dence ; and therefore, if no proof but that of actual fraud “ were allowed in such cases, much mischief and villainy “ would ensue, and pass with impunity. Circumstantial “ evidence is all that can be expected, and indeed, all that “ is necessary, to substantiate such a charge.” (b)

Nor is it requisite, that the circumstantial evidence should have a direct relation to the immediate subject of inquiry ; much less, that the inference drawn from the circumstances proved, should be absolutely certain, or necessary. It is sufficient, if the evidence be such, as to produce a fair and reasonable presumption of the'facts in issue ; and if it has that tendency, it ought to be received, and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved.

Upon this principle, evidence of irregular and suspicious transactions andcircumstanc.es, relating to bills drawn payable to fictitious payees, has been admitted, though none of those transactions and circumstances had any apparent rela-lion to the bill then in question, (c) 3 V

A prominent fact, averred by the plaintiff, was, the combination of the defendants to defraud ; and in proof of this, the testimony, which the Court below rejected, was principally offered. In the case of King v. Parsons et al. (d) which was an information for a conspiracy, it was adjudged, “ that “ there was no occasion to prove the actual fact of con- “ spiring, but that it might be collected from collateral cir- “ cumstances.”

A combination or conspiracy may be proved, by evincing a concurrent .knowledge and approbation in the persons conspiring, of each others acts; anti it is most usually done, by proof of the separate acts of several persons, concentrating in the same purpose or particular object. The greater the secrecy that is observed, relative to the object of such concurrence, and the more apparent the similarity of the means employed to effect it, the stronger is the evidence of conspiracy. (e) In the case of the King v. William Stone, (f) it •was said by Lawrence, J. “ that in Tooke’s case, he had al- “ luded to the cases of Lord Stafford and Lord Lovatt, to “ shew, that in order to prove a conspiracy, the acts of the “ different conspirators were admissible, though acts to “ which the prisoners were no party.”

In Beal v. Thatcher, (g) a very recent case, the principle just mentioned is recognized and applied. The plaintiff brought an action on the case against the defendant, for his having given a false character of one Johnston as to his solvency, by reason of which the plaintiff" had trusted him with goods, which had not been paid for. The plaintiff’s counsel called a witness to prove, that the defendant had recommended Johnston to him, (the witness,) and represented him as a man entitled to credit, and in good circumstances. This evidence was objected to, as being res inter alios acta. It was said, the issue was not whether he had defrauded the witness, but the plaintiff. Lord Kenyon, however, declared it to be admisssible, because “ it proved a subsisting fraudu- “ lent connexion between the defendant and Johnston, and “ might therefore go to the jury'.”

The testimony offered by the plaintiff below was clearly admissible, within the scope of the principles before mentioned. The recommendation by the defendants of Taiman, a bankrupt of ruined reputation, to several merchants in Boston, as a man of large property, and safely to be trusted ; their concurrence in the same representations, at the same time, and apparently for the same purpose, conduced to evince the combination alleged. It is unnecessary to say, that the circumstances, of themselves, were plenary proof ; for if they were of any weight in the scale of justice, they should have been committed to the jury, for their consideration.

Whether the recommendation of Peabody is? Rogers to the plaintiff' was admissible evidence, must have depended on the previous proof of combination among the defendants. For the connexion between the parties having once been established, then whatever was done in pursuance of the conspiracy, by one of the conspirators, is to be considered as the act of all. This principle has been established by repeated determinations, and must be considered as at rest. (h)

We are, therefore, of opinion, that the testimony offered was admissible ; and that the judgment of the Superior Court be reversed.

Edmond, Asst, dissented.

2 H. Bla. 205, Gibson, &c. v. Hunter.

Park on Insurance 214.

2 H. Bla. 288, Gibson v. Hunter.

1 Bla. Rep. 392-

1 East’s Pleas of the Crown, p. 97.

6 Term. Rep. 527.

3 ’Esp. Rep. 194.

A) 1 East’s Pleas of the Crown 97. 2 Mc. Nally 611.