Opinion,
Me. Chief Justice Paxson :This case was heard at the last term in the Eastern District, and the judgment affirmed. A re-argument was granted, and it was heard again at the present term. We are not convinced that our former judgment was erroneous.
The case below was a feigned issue to try the validity of a judgment confessed by J. B. Uberroth in favor of Eugene P. Unangst, for $7,000. The allegation of the appellant was that the judgment had been given to hinder and delay the creditors of Uberroth. Upon the trial below, the defendant called the latter as a witness as upon cross-examination, and he was asked as to a conversation with a person named Van Court. The court excluded the evidence, and this forms the subject of the second assignment of error. The questions were objected to as incompetent, irrelevant, and res inter alios acta. We think the objection well taken. Granted, for the sake of the argument, that Uberroth was a knave, and that his purpose was to cheat his creditors, his declarations would not be evidence to defeat the judgment he had given to Unangst, without previous proof that the latter was a party to the fraud. There was no such proof in the case.
Nor was the defendant entitled to examine Uberroth as upon cross-examination. He was not a party to the issue, and was a competent witness. Moreover, he was testifying against his interest, in a legal sense.
We do not think the court erred in excluding the testimony referred to in the third assignment. It rests upon the same principle as the testimony of Uberroth, above referred to. It consisted entirely, of his declarations, not made in the presence of the plaintiff. Prom the bill of exceptions we learn: “ This question is offered as a declaration of Mr. Uberroth, who is alleged to have been in collusion with the plaintiff, for the purpose of defrauding Mr. Uberroth’s creditors.” Unfortunately for the offer, it was a mere allegation, wholly unsupported by proof that the plaintiff was in collusion with Uberroth for the purpose of cheating the creditors of the latter.
The first assignment alleges that the court erred in affirm*134ing the plaintiff’s third point; the fourth assignment, that the court erred in not affirming the defendant’s point. The effect of both rulings was the same, to withdraw the case from the jury in favor of the plaintiff. In this the court was clearly right. There was not a scintilla of evidence to show any fraud on the part of the plaintiff. The defendant obtained this issue for the purpose of showing that the judgment was fraudulent. The plaintiff had a right to rest upon his judgment until the fraud was shown, a fraud to which he was a party. He did not rest upon it, however. He proceeded to show the consideration. He testified that the whole amount was for borrowed money, or indorsements for which he was liable. The defendant then called Uberroth, and he sustained the plaintiff’s testimony. This is all the evidence there was of any importance. The defendant’s case had failed; there was nothing to impeach the judgment, and the learned judge could not have done otherwise than give a binding instruction in favor of the plaintiff. The judgment heretofore entered must stand.
Judgment affirmed.