A very large number of exceptions were taken, on the part of the plaintiff, during the progress of the trial of this cause, and to the charge of the court, by which it was finally submitted to the jury. These exceptions chiefly relate to the admissibility of evidence which was offered by the defendants, and received by the court as tending to establish the conclusion that the assignment, under which the plaintiff derived title to the property in dispute, was made *Page 238 to hinder, delay and defraud creditors, and was afterwards used for that purpose. So far as they were earnestly pressed upon the consideration of the court, by the learned counsel for the plaintiff, they are confined to the evidence showing the acts and declaration of the assignor concerning the object of making the assignment itself, and the manner in which the assigned property was managed and controlled, after it has been made. For the purpose of determining whether the evidence received under these exceptions was properly admitted or not, it will become necessary to ascertain, in a general manner, the situation and condition of the case, when that evidence was given. The assignor had been, and was at the time when he made the assignment, extensively engaged in business as a distiller, and for several days previous to that event, had contemplated and finally concluded upon making a general assignment of his property. Before doing so, he informed the plaintiff, who was his son, and the general managing agent of his business, that such was his purpose. And the evidence given by the other assignee, who appeared to be one of his confidential friends, showed that he had conversed with him upon the same subject. This conversation, as well as the statements made by the assignor, during the progress of it, were received in evidence without objection. And, as far as they can properly be extended in that direction, may be considered as exhibiting the object the assignor had in view, and expected to accomplish by means of the assignment and the management of the assigned property under it.
In this conversation, the witness testified that William T. Cuyler spoke to him about being one of the assignees, and told him that his debts were more than he could pay; that he could not make the interest, which was fifteen thousand dollars a year; this was three or four days before the assignment was made; at that time this witness, Wooster, says that he was the owner of real and personal property, and was on the assignor's paper as indorser to the amount of sixty or seventy thousand dollars, which he was anxious to secure; *Page 239 he had also indorsed the paper of other persons in comparatively small amounts; he further stated, that at that time, the assignor asked him if he could not arrange it so that the persons he was indebted to could not get anything from him; that he wanted to make him as poor as he could, and he, the assignor, could arrange it easier with his creditors; the witness did thereupon convey a portion of his property to his mother, and another portion to his brother, which left him the owner of a warehouse in Piffardinia; and then he said Cuyler asked him if he could not fix that in some way; that Cuyler said he did not want them, alluding evidently to the creditors, to get anything from the witness, and said he wished to make him as poor as he could; all this transpired before the assignment was made, and while it was in contemplation, if this witness was to be believed, and that was a matter strictly within the province of the jury; and it leads to the direct and obvious conclusion, that the assignor desired the assignee to be stripped of his property, for the purpose of embarrassing and depriving his own creditors of it, so that he, to use his own language, "could arrange it easier with his creditors." The manifest object was to place them in such a condition that they would be hindered and delayed, and thereby coerced into such terms of adjustment as the debtor should deem proper to extend to them; that this was his plan is clearly indicated by the language he made use of; and it is equally as clear that the assignment he was about to execute was designed as one of the instruments which was to be used in the execution of that plan; and this witness seems to have willingly lent himself to the assignor so far as he required him for the accomplishment of that design; for he at once divested himself of all his real estate except his warehouse, and that did not exceed the sum of eighteen hundred dollars in value; as to these two persons there was evidence therefore so far tending to show that they had confederated together to defraud the assignor's creditors, in part, at least, by means of the assignment, as would have justified any jury in finding that to be the fact. And no change was shown to *Page 240 have been made in that design before the assignment itself was executed and delivered; after that there were some indications that the mind of this witness did undergo some change in this respect, but none that the assignor entertained any reluctance upon the subject; but if the witness Wooster did afterwards decline to aid in executing the fraudulent purposes of the assignor, it was at so late a period in the transaction as to have no influence upon the admissibility of the evidence excepted to by the plaintiffs.
The evidence tending to identify the plaintiff, who was the other assignee, with the same unlawful purpose, is quite as direct and equally as satisfactory as that connecting Wooster with it. The plaintiff was the assignor's son, and Wooster testified that he had no property, to his knowledge. When the assignment was proposed, he thought they could go through without it, and opposed the making of it. But when it was made, he accepted the trusts created by it, as one of the assignees, and continued in the charge and management of the assignor's business, the same as he had previously done; and no visible change in that business appears to have been afterwards made, down to the time when the personal property was levied upon by the sheriff. This was a circumstance which certainly indicated that the plaintiff's purpose was not to convert the estate into money and distribute it among the creditors, in compliance with the duties imposed upon him by the trust. At least, a jury would be at liberty to place that construction upon it; and if they would, inasmuch as the assignor's interviews with Wooster indicated it to be his purpose to arrange his property in such a manner as would enable him to "arrange it easier with his creditors;" and the relation of the plaintiff to him and to his business rendered it probable that this purpose had been communicated to him, the inference would not be an unreasonable one, that the plaintiff carried on the business in the manner which he did, with the intention of promoting that end. But his connection with the unlawful design of the assignor does not depend alone upon that circumstance; for the witness, Smith, *Page 241 says that he had an interview with the plaintiff, and also with his father, upon the subject of this assignment, on the 30th day of August, which was the day preceding its delivery, and, therefore, at a time when the declarations of the assignor, disclosing the object he had in making the assignment, were rendered admissible evidence against the assignees, within the ruling of this court, in the case of Adams v. Davidson (6 Seld., 309). But the principle affirmed on that occasion is not very important in this connection; for the substantial and important part of the interview mentioned by this witness was had in the plaintiff's presence, and received his approbation and assent. This witness stated that he first met the assignor and told him he had heard bad news; that he had heard that the assignor had made an assignment. The latter responded that he did not know how it could get out, because it was not known; but that he had made an assignment, and George would tell him all about it, after they had got into the house. After going into the house, he said to the witness: "You are all right; we have taken care of you; you are provided for in the first class." This appears to have been all that was said by the assignor when the plaintiff was not present; and as that did not tend to prove the existence of any unlawful design, either on the part of the assignor or the assignees, it could not possibly be productive of any injury whatever, if it had not been strictly admissible as evidence. It was simply introductory to the more important statements which the witness testified were made to him when the three came together; then he said he had conversation with both the plaintiff and his father, and that "George stated that his father had made an assignment and appointed him and Wooster assignees; that the object was to turn out real estate and shape it up; and that the reason was that a man by the name of Forbes had sued him for $6,000 or $7,000, and that he had looked over and did not owe him that amount." The plaintiff said: "The boys will want you to take property, and that it will be all right; we calculate to pay one hundred cents on the dollar; we can't pay all, and *Page 242 I want you to assist the boys in settling it up." He "did not want us to say anything about the assignment until it was made known otherwise, or what passed between us in regard to assignment; that he wanted to arrange with other creditors by turning out property." This witness then added that the plaintiff came to Perry to see himself and his father a few days after this interview; upon this occasion he said that "George said they wanted to contrive to save the distillery property, and let father" take it. "George said it was valuable property; if they could save that, they did not care about the rest; George said he wanted to save it for his own benefit." The plaintiff proposed to turn out this property to the father of the witness for $19,000, saying that it was worth a great deal more money, that it cost $30,000; and the plaintiff further stated that he and Slocum would take it back again; the witness testified further, that the colonel, the assignor, "and George were anxious to get it into some shape so that George could run it." "They requested us to assist them in settling up; and they could settle up if father would take the distillery property, it would be a starting point; they wanted to include as much" property "as they could without having other creditors think they were putting too much in father's hands." "I think this conversation was with George." He said: "It would be necessary to keep it to ourselves." And on that day, which was the 17th day of September, a contract was executed by the father of the witness agreeing to sell and convey the distillery property to the plaintiff and Slocum for the sum of $19,000, in case he should acquire the title to it from the assignees.
If this witness was to be believed, and that was a matter for the consideration of the jury, the plaintiff did, before the assignment was delivered, become a participant in his father's purpose of hindering, delaying and obstructing his creditors in the collection of their debts. And afterwards endeavored to carry that design into effect. So far as this evidence showed what transpired after the assignment was delivered, it was pertinent to the inquiry involved in the trial of the *Page 243 action, for it tended to show the intent which existed before and at the time when the assignment was delivered, and also that this intent was afterwards attempted to be carried into execution.
The evidence already referred to, standing alone, was of so direct and satisfactory a character that a jury would be at liberty to conclude from it, that the assignor and the assignees were united in one common intent to hinder and delay the assignor's creditors, by means of this assignment and their management of his property under it. And after that was shown to be the prima facie condition of the case, the acts and declarations of these parties, whether separately or unitedly performed and made, were admissible against the plaintiff, for the purpose of more conclusively establishing the fraudulent character of the assignment, as well as the execution, or attempted execution of the fraudulent design that led to the making of it. This evidence, it is true, did not bring the present case, in this respect, within the dictum of Justice WELLES in the case of Jones v. Hurlburt (39 Barb., 409) What was said as to the rule of law applicable to this point on that occasion, was not essential to the decision of that case. For the evidence concerning the alleged combination was insufficient even to warrant a practical presumption in favor of its existence.
In this respect, the evidence in the present case was of an entirely different character. It was sufficient, in the absence of any countervailing testimony, and nothing of that nature was given on the part of the defendants, fairly and reasonably, to lead to the conclusion that these three persons did combine together for the execution of a fraudulent and unlawful design, and that the assignment was made and delivered, in order to render that design effectual. And after that had been presumptively established, the acts and declarations accompanying such acts, of each of the persons so shown to be combined, were admissible against all or any of the other parties to the combination, so far as they were performed and made in the execution of the common purpose. This is the *Page 244 rule, as it is stated by GREENLEAF, in his work upon evidence. He says: "A foundation must first be laid by proof, sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury, as tending to establish such fact." (1 Greenleaf, § 111.) The same rule is mentioned in the note to the passage in Phillips, which states the principle of evidence prevailing in this class of cases. It is there said that "in such cases it is necessary that there should be given, at some period of the trial, sufficient evidence to go to the jury, of concert and connection on the part of the prisoner." (1 Phillips on Evidence, 199, note 5.) In the case of Clayton v. Anthony (6 Randolph, Va., 285), GREEN, Justice, stated the rule to be, that "it is well settled that in the case of several combining for an illegal purpose, the acts and declarations of each, in respect to the common object, are evidence against the others; yet, before such evidence can be admitted, the court must decide for itself that there is sufficient evidence prima facie to prove such combination, which the jury may, nevertheless, negative." (Id., 301.) Judge McLEAN stated the rule in the same manner, in the case of The United States v. Cole (5 McLean, 513, 601-2). His language was, that "where prima facie evidence has been given of a combination, the acts or confessions of one are evidence against all. This rule of evidence is founded upon principles which apply to agencies and partnerships. In Rex v. Stone (6 Tenn., 527), evidence that would be sufficient for the jury to consider whether the prisoner was not one engaged in a conspiracy, was held to be sufficient to let in proof of the acts and statements of the other parties to the conspiracy. (Id., 528.) The same rule was maintained in Preston v. Bowers (13 Ohio N.S., 1, 13); Commonwealth v. Brown (14 Gray, 419, 432);Kimmell v. Geeting (2 Grant, Pa., 125). In the last case, it was held, that a division of profits of a fraudulent transaction was sufficient, because it was some evidence of a combination to defraud. And in McDowell v. Rissel (37 Penn., 164, 168), slight evidence *Page 245 of collusion was held to be all that could be required. And this was affirmed, also, in the cases of Peterson v. Speer (29 Penn., 479, 491); Clinton v. Estes (20 Ark., 216); Johnson v. State (29 Alabama, 62, 68); Browning v. State (30 Miss., 656). And Evans v. Watson (56 Penn., 54), is, also, to the same general effect. (See, also, 6 Eng. Com. Law., 123, 128.) And the decisions made in Benham v. Cary (11 Wend., 83), andCraig v. Craw (12 Wend., 41), maintain the same principle.
This rule is not confined to cases where a technical conspiracy forms a portion of the charge; but it includes all combinations formed for the purpose of accomplishing unlawful results, or lawful results by unlawful means. (Comm. v. Pierson, 8 Gray, 375, 381.) And under it, all such acts and declarations as may be performed or made for the purpose of carrying the unlawful design into effect, are properly admissible as evidence, after the existence of such a design has been presumptively established, whenever the execution of the design may constitute a pertinent subject of judicial inquiry. (2 Starkie on Ev., 401, 403; Am.Fur Co. v. U.S., 2 Peters, 364-5; Page v. Parker,40 N.H., 47, 62; Lee v. Lamprey, 43 Id., 13, 15.)
The evidence which was given upon the trial of this action, showing acts and statements accompanying them, after the delivery of the assignment, was clearly within this rule. For it tended to establish the performance of such acts, and the making of such statements as indicated the execution of a common fraudulent intent, to which the assignees as well as the assignor were parties.
Anthony M. Wooster, a witness sworn on the part of the defendants, testified that he met the assignor at his brother's house, early one morning, about two months after the assignment was made. On that occasion, he testified that "Mr. Cuyler asked me if I had seen George. I said I had. He said I had better go back, `George wants to turn out property on your debt.' He said no property had been levied upon, except a little around the distillery." "He spoke about turning *Page 246 out rye, barley in stack, and some calves." "When we got to the house, the Colonel said he brought me back to take the property; said so to George. He said he wanted to let me have the rye and barley; and George said, `Hadn, t you better take the calves.' He wanted me to take potatoes and hay. We looked through the barn and stacks. The rye and grain was to be thrashed and delivered at my warehouse. The potatoes were to be put in Col. Cuyler's cellar. We went to the house, and a bill of sale was made out. I objected to the price. Colonel said he did not expect I would keep it; that they could make more out of it, and would pay our debts. Colonel said George had better have Alfred drive down the good cows; one for Marsh, one for William, and one for himself. He said he would pay me for keeping cows and calves, or make it all right. I told them where to put them, and they were driven there." J.D. Crank testified that he had some goods of the assignees. He had a few barrels of whiskey after the assignment. In September or October, there were three or four barrels came over. C.H. Cogswell testified that "a quantity of whiskey was taken away; twenty-five to thirty barrels were taken to Mrs. Phelps' barn and my cellar; ten or twelve barrels taken to my cellar." Lemly also swore to whiskey and mules being taken away in a similar manner, on the twelfth of October. These transactions, and some others not quite so significant, appear to have been brought about by the co-operation of the plaintiff and the assignor; and they all indicated the existence and execution of a common intention to deprive the creditors of the property which, according to the terms of the assignment, had been expressly devoted to the payment of their debts. (Verplank v.Sterry, 12 John., 536, 559.) In that view, they had a tendency to materially strengthen the inference arising out of what was shown to have transpired about the time when the assignment was made; and that the object of making it was to defraud creditors. This evidence was more important than the mere isolated acts and declarations of either one of the parties, standing alone, could *Page 247 have been. For it went to establish the conclusion, that what was done in that respect, was performed by the united action of the plaintiff and the assignor, and, as such, it was clearly admissible upon the trial. In this respect, it differed from the acts and accompanying statements of individual conspirators, which are only pertinent upon the subject of the execution of the common design, and can only be considered after that has been found to have been established. (Wiggins v. Leonard, 9 Iowa 194;13 Ohio, 13, supra.)
This case was tried upon a more favorable theory for the plaintiff than the defendants were legally required to maintain; and that was, that the assignment could only be shown to be fraudulent by showing that the assignees participated in the assignor's intent to defraud. It was chiefly to show the fraudulent intent of the assignee that this evidence was given, and to connect him with the fraudulent design of the assignor. This was unnecessarily onerous upon the defendants, because it imposed upon them more than, in any view of the case, the law could require from them for the purpose of making out their defence. It could not, by any possibility, injure the plaintiff, and he therefore has no right to complain of the evidence unnecessarily given to maintain it. It is sufficient that it was pertinent to that view of the law, and that it had a direct tendency to maintain the theory on which the defence was placed.
The exceptions taken to the charge in submitting these circumstances to the jury are fully answered by what has been said upon the subject of the admissibility of the evidence concerning them. They were proper subjects for the consideration of the jury. And so was the delivery of the $4,800 to the assignor's wife, just before the assignment, and the preference created in the assignment for the benefit of the plaintiff. Together with all the other circumstances, they had some tendency to indicate that the assignment was neither fair nor honest.
The judgment should be affirmed. *Page 248
HUNT, Ch. J., MASON, GROVER, JAMES and MURRAY, JJ., were for reversal on the ground stated in WOODRUFF, J's, opinion.
LOTT, J., concurred with DANIELS, J., for affirmance.
Judgment reversed and new trial ordered.