Welcome v. Batchelder

23 Me. 85

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1843
• Status: Published

Opinion

The opinion of the Court was drawn up by

W hitman C. J.

In this case ’exceptions to the ruling of the Judge at the trial were taken, and a motion for a new trial also filed. It is difficult to see upon what ground either of them can be sustained. As to the exceptions to the.ruling, in reference to the admissibility of the witnesses introduced by the defendant, we think the ruling w.aS correct. The deputy, who made the attachment, had been released by the defendant; so that he had no interest to testify in his favor. If the plaintiff, were to recover the full amount of his claim against him, he could have no remedy over against the witness; who must pay the proceeds of the sales of the goods sold by him, over to the creditor; for the recovery of the value of the defendant, would operate an extinguishment of any claim the plaintiff might otherwise have had against the witness; and if the plaintiff fails of a recovery against the defendant, it must be because he would have no right to recover against either the witness or the defendant. The bond, by which it was supposed Prescott and Manning had become interested, was, as they state, surrendered to be cancelled, and .was cancelled ; so that any interest they might have had, had ceased. Besides, they had only become responsible .to indemnify the deputy, who had been released by the defendant; and this action, being against the defendant as sheriff, it was, even if their bond were uncancelled, indifferent to them whether the plaintiff recovered against the defendant or not. As to Judge Redington, it is true, that he might have been excused from testifying if be had insisted upon it. Public policy would have authorized it. 13.ul it is no ground of exception that he did not insist upon his right to be excused. As to his refreshing his recollection from his minutes, the practice would clearly warrant it: that he testified to any material fact which his minutes did not enable him to recollect, does not appear.

We arc equally well satisfied, that there is no just ground of complaint, that the Judge instructed the jury, that it was not competent for Michael Welcome in contemplation of approaching death, if unable to pay his debts, to make provision for his wife, by a sale of a portion of his property for that purpose. Because the court of probate, after his decease, would have a right to do something of the kind, could form no reason, as urged by the plaintiff’s counsel, why he should be authorized to make a voluntary conveyance, for the purpose, in his lifetime. All such conveyances are illegal and void.

That the verdict is right in this case we see no reason to doubt. That the plaintiff had purchased nearly all the visible attachable property of his brother, an insolvent, debtor, avowedly to aid him in securing it from attachment, by bona fide creditors, and without consideration, to secure a considerar ble portion of it for the benefit of his wife, was abundantly proved. His agreeing to pay bona fide debts with a part of it, cannot alter the character of the transaction. If he had been content to purchase simply "enough to indemnify himself, for the liabilities he was under for his brother, and for that purpose solely, it would have been otherwise.

Exceptions and motion for a new trial overruled and judgment on the verdict.