Woodward, J.
It appears quite manifest that this cause has not received an intelligent and proper trial, although, taking a general view of it, the result may seem unobjectionable. There is much reason to believe, that the true issue was lost sight of, and that a just discrimination was not exercised in regard to the testimony. These two matters were all-important to a right determination of the cause.
The issue upon which the mass of the testimony bore, was, whether the note and mortgage from Haskins to Lane were fraudulent, without consideration, and therefore, as to creditors of Haskins, void. Bearing upon much of the testimony which was offered to support the affirmative of this issue, was the question of a combination to carry on this fraud. The testimony of Childs, Barner, Durbin, anda large portion of that of J. M. Wiggins was not admissible, unless the . same Wiggins was first found to be in such combination. Now, there is no instruction to the jury upon the subject of [197]*197this combination, nor relative to the evidence as connected with it. The doctrine of the law is, that a confederacy having been established, certain evidence, otherwise inadmissable, may be received to show the supposed fraud. The confederacy is pre-supposed, and must be fixed at some time, and* it must be made out by other evidence than that’which shows the fraud. The same acts which, proven, go to show the combination, cannot be taken, at the same time, to show the fraud; for this proof of 'the fraud, is admitted only because the" confederacy is first assumed to be shown. This doctrine applies, mainly, if not entirely, to proof coming from a supposed confederate.
Again; it is of the first degree of importance, that we consider who is charged as being in the combination and practicing the fraud. In this case, it is charged that Has-kins and Lane, and J. M. Wiggins, were in the fraud, and that the plaintiff was so far connected, that he lent his name as a party to this suit. The defendant seeks to show a confederacy between the three persons first named, and, this being established, to make use in evidence, of declarations and acts of J. M. Wiggins. This is the direction given by the pleadings, and it is the only position the party can place the matter in; but, at the same time, in his argument upon it, there is a degree of obscurity and uncertainty as to who he claims to have been united in the purpose.
Upon this subject, of a controlling importance in the progress and the result of the case, the court gave no instruction — no direction to the jury, as to the distinction between the evidence which should go to establish the combination, and that which was to'be received, only in case such confederacy was first proven and found by them, or as to the parties who should be found united in it. This became the more important, inasmuch as a large portion of each of the classes of proof, must be found in the acts and declarations of the same person — that is, J. M. Wiggins. For aught that appears, all of the testimony went to the jury, in mass, to make out both of these points, perhaps from identically the [198]*198same acts and declarations. We do not intend to signify, that a definite time between parts of the evidence, directing what shall be taken to prove one, and what the other of these things, can be drawn by the court, but that the jury •should bo instructed in respect to this difference, and not be left to find 'the conspiracy from certain acts or declarations, and then from the same,-to find that to prove which they were receivable only upon the conspiracy being first proved.
Again; the charge being that the combination existed between Haskins, Lane and J. M. Wiggins, we are constrained to regard the verdict, taken in this point of view, as against the evidence, fo * the first two of these are the persons with whom the conspiracy must of necessity have existed primarily, in order to give it any efficacy, and in regard to them, the evidence is essentially defective. There is none implicating Lane, and but the slightest amount bearing on Has-kins. In truth, it must be said that there is none, except a declaration or act of J. M. Wiggins; which is admissible only upon the pre-supposition of a combination. And this individual instance, illustrates the importance of the remarks above, concerning the bearing of this testimony. There is nothing tending to implicate Haskins, save a joint declaration and act of J. M. Wiggins; and these cannot be used as a double edged sword, cutting both ways at the same time.
The admission of these acts and declarations of J. M. Wiggins, is advocated upon yet another ground. Whilst it is sought upon the ground of his participation in a fraud, it is also claimed that they are the acts and declarations of an agent. Wiggins, when examined as a witness, stated that he was the agent of C. W. Wiggins and L. M. Farnsworth, in the business of selling land and loaning money; and that as agent of Charles W., he transacted the business of .buying the note and mortgage from Lane, and paid him $1500, therefor. The court instructed, upon this point, distinctly, that his acts and declarations done and made in connection with the transaction of the above business, were admissible, but not otherwise. The admission upon this ground, being more [199]*199urged than upon that of combination, a considerable portion of tlie instructions is devoted to this subject. IDs acts, &e., done at subsequent and different' times, are not admissible. To render tbem so, they must have been connected with the act of agency. 1 Gxeenl. Ev., sec’s 114, 115. He contin-, tied the agent of his brother and Farnsworth in the land and loaning business, but that is not sufficient. • His act of buying the mortgage, is-not a continuing agency, so as to allow the admission under it of these declarations.
We apprehend that it is sufficiently apparent, that the jury must have received the testimony of the acts and declarations of J. M. Wiggins; and if they did sojupon this ground of his agency, the .verdict is here without evidence, and against the instruction of the court. This is regarded as clear, for the court instructed as above stated, and the declarations, &c., were detached, disconnected, and in no wise related to his agency. Under the rule given by the court, they should not have been regarded.
This view, of course, is not intended to exclude this testimony, when it could legitimately be regarded as contradicting the witness J. M. Wiggins. For instance, Childs’ testimony is further claimed as having this effect, in respect to his denial, “that he went to Chicago, to buy goods for this store (Haskin’s,) in the spring of 1855.” But there is an error here, based on a mistake as to Wiggins’ testimony. He did not deny this. Three questions are asked him, all which either ask him if he did not, or assume that he did, go loith HasTcins, which he denies. The association with Has-kins is the point, and a material part of the questions. He was not asked, as to, and does not deny, the going alone.
Upon the foregoing subject we would remark, in conclusion, that from the instructions given to the jury, it would not happen that the question of a combination had entered into the trial of the cause. If it was relied upon, there was great necessity, that there should have been instruction both in respect to the period at ayMcIi, or the circumstances under which, they might receive evidence of the acts or decía-[200]*200rations of a confederate, and in respect to the persons who must be found united in the common purpose.
Free access — add to your briefcase to read the full text and ask questions with AI
Woodward, J.
It appears quite manifest that this cause has not received an intelligent and proper trial, although, taking a general view of it, the result may seem unobjectionable. There is much reason to believe, that the true issue was lost sight of, and that a just discrimination was not exercised in regard to the testimony. These two matters were all-important to a right determination of the cause.
The issue upon which the mass of the testimony bore, was, whether the note and mortgage from Haskins to Lane were fraudulent, without consideration, and therefore, as to creditors of Haskins, void. Bearing upon much of the testimony which was offered to support the affirmative of this issue, was the question of a combination to carry on this fraud. The testimony of Childs, Barner, Durbin, anda large portion of that of J. M. Wiggins was not admissible, unless the . same Wiggins was first found to be in such combination. Now, there is no instruction to the jury upon the subject of [197]*197this combination, nor relative to the evidence as connected with it. The doctrine of the law is, that a confederacy having been established, certain evidence, otherwise inadmissable, may be received to show the supposed fraud. The confederacy is pre-supposed, and must be fixed at some time, and* it must be made out by other evidence than that’which shows the fraud. The same acts which, proven, go to show the combination, cannot be taken, at the same time, to show the fraud; for this proof of 'the fraud, is admitted only because the" confederacy is first assumed to be shown. This doctrine applies, mainly, if not entirely, to proof coming from a supposed confederate.
Again; it is of the first degree of importance, that we consider who is charged as being in the combination and practicing the fraud. In this case, it is charged that Has-kins and Lane, and J. M. Wiggins, were in the fraud, and that the plaintiff was so far connected, that he lent his name as a party to this suit. The defendant seeks to show a confederacy between the three persons first named, and, this being established, to make use in evidence, of declarations and acts of J. M. Wiggins. This is the direction given by the pleadings, and it is the only position the party can place the matter in; but, at the same time, in his argument upon it, there is a degree of obscurity and uncertainty as to who he claims to have been united in the purpose.
Upon this subject, of a controlling importance in the progress and the result of the case, the court gave no instruction — no direction to the jury, as to the distinction between the evidence which should go to establish the combination, and that which was to'be received, only in case such confederacy was first proven and found by them, or as to the parties who should be found united in it. This became the more important, inasmuch as a large portion of each of the classes of proof, must be found in the acts and declarations of the same person — that is, J. M. Wiggins. For aught that appears, all of the testimony went to the jury, in mass, to make out both of these points, perhaps from identically the [198]*198same acts and declarations. We do not intend to signify, that a definite time between parts of the evidence, directing what shall be taken to prove one, and what the other of these things, can be drawn by the court, but that the jury •should bo instructed in respect to this difference, and not be left to find 'the conspiracy from certain acts or declarations, and then from the same,-to find that to prove which they were receivable only upon the conspiracy being first proved.
Again; the charge being that the combination existed between Haskins, Lane and J. M. Wiggins, we are constrained to regard the verdict, taken in this point of view, as against the evidence, fo * the first two of these are the persons with whom the conspiracy must of necessity have existed primarily, in order to give it any efficacy, and in regard to them, the evidence is essentially defective. There is none implicating Lane, and but the slightest amount bearing on Has-kins. In truth, it must be said that there is none, except a declaration or act of J. M. Wiggins; which is admissible only upon the pre-supposition of a combination. And this individual instance, illustrates the importance of the remarks above, concerning the bearing of this testimony. There is nothing tending to implicate Haskins, save a joint declaration and act of J. M. Wiggins; and these cannot be used as a double edged sword, cutting both ways at the same time.
The admission of these acts and declarations of J. M. Wiggins, is advocated upon yet another ground. Whilst it is sought upon the ground of his participation in a fraud, it is also claimed that they are the acts and declarations of an agent. Wiggins, when examined as a witness, stated that he was the agent of C. W. Wiggins and L. M. Farnsworth, in the business of selling land and loaning money; and that as agent of Charles W., he transacted the business of .buying the note and mortgage from Lane, and paid him $1500, therefor. The court instructed, upon this point, distinctly, that his acts and declarations done and made in connection with the transaction of the above business, were admissible, but not otherwise. The admission upon this ground, being more [199]*199urged than upon that of combination, a considerable portion of tlie instructions is devoted to this subject. IDs acts, &e., done at subsequent and different' times, are not admissible. To render tbem so, they must have been connected with the act of agency. 1 Gxeenl. Ev., sec’s 114, 115. He contin-, tied the agent of his brother and Farnsworth in the land and loaning business, but that is not sufficient. • His act of buying the mortgage, is-not a continuing agency, so as to allow the admission under it of these declarations.
We apprehend that it is sufficiently apparent, that the jury must have received the testimony of the acts and declarations of J. M. Wiggins; and if they did sojupon this ground of his agency, the .verdict is here without evidence, and against the instruction of the court. This is regarded as clear, for the court instructed as above stated, and the declarations, &c., were detached, disconnected, and in no wise related to his agency. Under the rule given by the court, they should not have been regarded.
This view, of course, is not intended to exclude this testimony, when it could legitimately be regarded as contradicting the witness J. M. Wiggins. For instance, Childs’ testimony is further claimed as having this effect, in respect to his denial, “that he went to Chicago, to buy goods for this store (Haskin’s,) in the spring of 1855.” But there is an error here, based on a mistake as to Wiggins’ testimony. He did not deny this. Three questions are asked him, all which either ask him if he did not, or assume that he did, go loith HasTcins, which he denies. The association with Has-kins is the point, and a material part of the questions. He was not asked, as to, and does not deny, the going alone.
Upon the foregoing subject we would remark, in conclusion, that from the instructions given to the jury, it would not happen that the question of a combination had entered into the trial of the cause. If it was relied upon, there was great necessity, that there should have been instruction both in respect to the period at ayMcIi, or the circumstances under which, they might receive evidence of the acts or decía-[200]*200rations of a confederate, and in respect to the persons who must be found united in the common purpose. But this subject is not mentioned, and consequently neither was Has-kins, Lane, nor C. W. Wiggins, in this connection. The first ,two of these, are named in connection with the bona fides of the giving and transfer of the note and mortgage; but this was a branch of the case, not necessarily connected with the idea of a combination with others to defraud. The consequence was, that the testimony of Barner, Durbin and Childs, with the declarations of J. M. Wiggins, went before the jury in mass, without directions how and where they should be heard or applied, and of course to be applied without rule, and as the jury might be impressed by them.
The court refused to give any of the instructions requested by the plaintiff, of which there were several, and which were pertinent, at least, and some of them might properly have been given in substance; and thopgh the court gave a series, apparently intended to cover the case, yet they did not touch upon several points requested by the plaintiff. Beside, the subject of collusion,' above referred to, and upon which the court should have instructed, there, was no instruction upon the various matters which werejntroduced through the medium of the declarations and acts ofAR M. Wiggins, portions of which could not be received without sdme limitation as to their effect. A detailed examination of the various witnesses’ testimony, and of the points made, would require much more time and space than we are able to give. A new trial will give an opportunity for a more careful and just discrimination as to what evidence is admissable, as well as to the purposes for which it is receivable; and we think justice requires that this should take place.
The judgment of the District Court will be reversed, and a new trial granted.