The plaintiff claims to be the owner of the property in question, under a bill of sale dated Dec. 11, 1851, in consideration of an indorsement on a promissory note, which he held against the vendors, (the indorsement being for the agreed price of the goods,) and a delivery of the goods at the time of the execution of the bill of sale.
The defendant claims the right to hold the goods against the plaintiff, by virtue of an attachment made by his deputy, on Dec. 13, 1851, upon a writ in favor of John Gilpatrick, upon the ground, that the previous sale to the plaintiff was in fraud of creditors’ rights.
Several questions arise on the rulings of the presiding Judge, in admitting evidence in defence, against the objection of the plaintiff, the verdict having been for the defendant.
The deposition of Stephen L. Hooper was introduced by the defendant, and he testified therein, to conversation with Samuel P. H. White, one of the plaintiff’s vendors, prior to the time of the sale, not in the presence of the plaintiff, the said Samuel P. H. White then being in Court, and subsequently called by the defendant. It is well settled, that the declarations and acts of a debtor, respecting property, alleged by an attaching creditor thereof, or one representing him, to have been fraudulently conveyed to the party claiming it, made or done before the supposed sale, is admissible in evidence, if such declarations and acts have a tendency to show, that the sale was made with a fraudulent design. Bridge v. Eggleston, 14 Mass. 245; Howe v. Reed, 3 Fairf. 518. Such evidence becomes no less admissible, when the declarations and acts are in the absence of the party, to whom the sale is made. The one who alleges the fraudulent sale, must estab*154list two propositions; one, that the vendor conveyed the property for the purpose of defrauding or delaying his creditors; and the other, that the vendee participated in the fraud. The former proposition, being distinct from the other, may be proved by statements and conduct of the vendor, unknown to the vendee. The presence of the vendor in Court, when such evidence is offered, is no objection to the testimony, which is not to be excluded by the subsequent call of the vendor as a witness by the same party.
The bill of merchandize sold to Lincoln Waterhouse, by the firm of S. P. H. & W. White, was objected to, but received in evidence.. The ground of the objection does not appear to have been presented to the Judge. He may not have been advised of the contents of the bill, in any respect; and unless his attention was brought to something upon the bill, which was legally objectionable, by the authorities cited by the defendant, his ruling cannot be treated as erroneous.
The same answer is properly made to the admission of the books of the firm. No specific objection was presented to the Judge; and it was not his duty without such specification, to examine either the bill or the books, in search of matter which might be incompetent as evidence.
The testimony given by William White, one of the firm of S. P. H. & W. White, at a trial between these parties, at the January term, 1853, was admitted against the plaintiff’s objection. If this testimony was for the purpose of showing that the sale to the plaintiff was in fraud of creditors’ rights, it does not become competent evidence by being under oath, if the statements are objectionable without being so verified. We are not aware, in cases like the present, that the declarations and acts of a vendor, long after the completion of the sale, have been held admissible, for the purpose of defeating the title, which, by a solemn contract, he had passed to, and perfected in, another. If this evidence' was erroneously received, the plaintiff was thereupon entitled to exceptions. It is always the privilege of a party to offer testimony, to repel that of his adversary, notwithstanding the former may have *155been introduced against his objection. And it has never been understood, that the introduction of such rebutting evidence was an abandonment of the right to except to the ruling; and no reason is perceived, why it should be so.
The introduction of the testimony of Eliza E. Jamerson, it is insisted, was not a ground for disturbing the verdict, because it was wholly immaterial. When the question, which elicited the answer that is the ground of exception was put, the plaintiff made objection thereto. This objection was insisted on at the trial. We think the answer had some tendency to show a relation between the plaintiff and his vendors of the property, touching the intention of one and the other in the transfer, unfavorable to the plaintiff’s claim.
Exceptions sustained, — verdict set aside, and new trial granted.
Rice, Cutting, and Goodenow, J. J., concurred.