BRIDGE OS. EGGLESTON.

The judge instructed the jury that a deed made to delay or defraud creditors was void against them, unless made for a good and valuable consideration, and bona fide to a purchaser, without notice of the fraud; that the confessions of Goodwin, after the date of his deed to Eggleston, were not to prejudice this latter; nor the confessions before, unless the knowledge of the fact were brought home to Eggleston before the date of the deed; that negotiable notes were to be considered as payment, if delivered and accepted according to their import; that, if they believed that Eggleston bought the estate innocently, he should be protected, although the grantor was endeavoring to place his property in a situation to keep it from his creditors; because a man in failing circumstances might lawfully sell his estate with a view to pay his debts; but that, if Eggleston paid the money for the estate, and did it with a knowledge of the circumstances of the grantor, and with the intent to aid and assist him to delay or defraud his creditors, the deed would be void against them.

The jury returned a verdict for the demandant; and the tenant moved for a new trial, on the ground that evidence of the confessions of Goodwin, admitted as aforesaid, ought to have been rejected; and if that should be the opinion of the Court, a new trial was to be granted.

Ashmun, for the tenant, before entering on the general ground of the motion for a new trial, offered the affidavit of John Hewlet, who was foreman of the jury who tried the cause, stating that he, with three of his brethren, were opposed to the verdict, but that, believing it to be their duty to yield their opinion to that of the majority, they had joined in returning the verdict Ashmun was aware that testimony of this kind had been rejected in some courts, but he was ignorant that such a decision had occurred in this Court. admitted in the case of Grinnell vs. Phillips, (1) although the late authorities are on the other side. (2)

[ * 248 ] * for the tenant.

It was

But the Court said that it had been expressly ruled, in a capital case in Suffolk, that jurors should not be received to testify to the motives or inducements upon which they had joined in a verdict. And as to the conduct of the jurors in the present case, as stated in the affidavit, the Chief Justice expressed himself satisfied with it. (a) Ashmun then urged objections to the admission of Goodwin's

(1) 1 Mass. Rep. 530.

(2) See 4 Binney's Rep. 150, Cluggage vs. Swan.—1 New Rep. 326, Owen & Al. vs Warburton.

(a) [3 Chitty, Pr. 920, 921, Eng. ed. Homer vs. Watson, 6 Car. & P 680.Desbrow vs. Wetherly, 6 Car. & P. 760, 761. — Tidd. Pr. 869-896. — ED.]

BRIDGE US. EGGLESTON.

conversations and confessions, before making his deed, and not in the presence or hearing of Eggleston. He was a competent witness for either party at the trial. (3)

Evidence should be legally sufficient at the time of its admission; and it is not enough after the jury have heard it, and its impression has been received upon their minds, that the judge afterwards endeavors to counteract its effects. The evidence in this case was objected to, and should not have been admitted thus conditionally, nor until, by previous testimony, the facts necessary to make it proper evidence had been proved.

The instructions of the judge to the jury were unquestionably correct; but perhaps no instructions would have sufficed to remove from their minds the impressions which had been made by the improper testimony they had heard.

Gold and Sedgwick for the demandant.

PARKER, C. J. The evidence objected to at the trial, and now made the ground of a motion for a new trial, is that which relates to certain conversations and declarations of Goodwin, the grantor of Eggleston, and the judgment debtor, in the judgment which was attempted to be satisfied by a levy on the land demanded in this action.

*The substance of the conversation proved is, that [* 249 ] Goodwin expected to be ruined by being connected

with the Berkshire Bank as a director; and that he thought it best to pay as little of his debts as possible, and intimated an intention to submit to imprisonment in Albany, in the state of New York. This conversation took place before the execution of the deed to Eggleston, and he was not present at it. The judge overruled the objection made at the trial, on the ground that, if knowledge of the fact could be proved upon Eggleston, the evidence was proper; and there was afterwards evidence of other declarations of Goodwin, made in the presence of Eggleston, of a similar import, so far as their tendency was to prove the known or expected insolvency of Goodwin, but none in which any intention, on his part, to conceal his property was intimated.

So far as the conversation tended to prove the insolvency or embarrassment of Goodwin before he conveyed his estate, we think the evidence proper. (a) The fact was essential to be proved, in order to establish a motive on his part to make a fraudulent conveyance; and it could not be better proved than by his own.

(3) 11 Mass. Rep. 498, Loker vs. Haynes. - Ibid. 368, Inhabitants of Worcester vs. Eaton.-12 Mass. Rep. 439, Clarke vs. Waite.

(a) [Bell vs. Coiel, 2 Hill, Ch. 109. — Varick vs. Briggs, 6 Paige, 323. — Lee va Huntoon, 1 Hoff. 448. - Fitch vs. Chapman, 10 Conn. 8. — ED.]

BRIDGE US. EGGLESTON.

acknowledgment. It is true that Goodwin is a competent witness, if he is not bound by his covenants, or if he is released. But the creditor, who is pursuing his debt through a supposed fraudulent conveyance, is not obliged to rely upon the testimony of the principal in the supposed fraud. His conduct, actions, and declara tions, before such conveyance is made, are proper subjects to lay before the jury, to enable them to ascertain whether the conveyance, on his part, was fraudulent; and such evidence does not prejudice the supposed grantee. If he purchased bonâ fide, and for a valuable consideration, without knowledge of such design, his title will not be affected.

There has been much doubt with respect to this species of evidence, different opinions having heretofore prevailed, and no case solemnly decided having settled all the questions which [* 250] grow out of the subject. It is certain that more laxity or liberality has prevailed, with respect to the rules of evidence in inquiries concerning the validity of conveyances supposed to be fraudulent, than upon most other subjects. It will be well to establish some precise rules, which may make this branch of litigation less troublesome than it has hitherto been. Now, as the creditor, in such cases, is obliged to prove actual fraud in the grantor, and a participation in or knowledge of it in the grantee, we think these two branches of his case will admit of the application of evidence to the two parties which, although appa rently inconsistent with, is by no means repugnant to, the common rules of evidence.

To prove fraud in the grantor, his conduct and his declarations before the conveyance may be the best, and often the only, evidence within the power of the creditor. He at that time is not interested, nor can it be his design, to injure those with whom he may afterwards contract. If fraud is thus proved upon him, then the knowledge of it on the part of the grantee is to be proved; which may be done by showing a trifling consideration, or none at all; by acts inconsistent with the bonâ fide ownership of the property; by confessions of the nature of his bargain; or by other circumstances, tending to show a knowledge of the designs of the grantor. Without this latter evidence, the former, as to the designs of the grantor, is wholly ineffectual to defeat the purchase; and a jury, under the direction of the court, will always be able to discriminate; so that the purchaser will not be injured by the declarations of the grantor, unless he be proved to have been privy to his fraudulent designs.

But the declarations, conversations, or even the actions, of a grantor, after making his deed, ought not to be received in evidence, in prejudice of the title he has created; because he is

BRIDGE US. EGGLESTON.

interested to have such title defeated by his creditors; and because the other party has a right to examine him upon oath, provided he is a competent witness. Before he has conveyed, he is

* an independent party, whose conduct may be exam- [* 251 ] ined, to ascertain the causes and motives of his convey

ance. Afterwards he has no relation to the estate he has conveyed; and his conversation respecting it, if sworn to on a trial, is mere hearsay, which is never received as evidence.

Two cases have been adjudged, which tend to establish this latter principle. The first is that of Bartlett vs. Delprat & Al. (4) There the declarations admitted were of a deceased supposed grantor, viz., that he had never made any conveyance to his son. The judge at the trial admitted evidence of that declaration; but a new trial was granted, and the principal reason assigned was, that no cure could be found, where the declarations of a party, so situated in point of interest, had been received as evidence. The declarations objected to in that case were made after a title was supposed to be created by deed, and tended to contradict and defeat that deed. The other case is that of Clarke vs. Waite, cited in the argument. There declarations of the grantor, both before and after the execution of the deed, tending to show that it was fraudulent, were rejected by the judge at the trial, and his decision was confirmed by the whole court.

This decision does not establish the inadmissibility of declara tions made before the deed, if connected with evidence of knowledge on the part of the grantee. The adjudication is not to be extended beyond the subject matter, which was a case of declarations made after the execution of the conveyance, as well as before, without any proffer of evidence tending to show a participation in the fraud by the grantee.

There is nothing, therefore, in any settled decisions to interfere with our opinion in the present case; which is, that the conduct and declarations of the grantor, respecting the estate conveyed, and tending to prove a fraudulent intention on his part before the conveyance, is proper evidence for the jury upon an inquiry into the validity of such conveyance, by a cred- [* 252] itor or subsequent purchaser, who alleges it to be fraudulent (a)

(4) 4 Mass. Rep. 702.

Judgment on the verdict.

Davis

(a) [Phanix vs. Ingraham, 5 Johns. 412.- Ivatt vs. Finch, 1 Taunt. 141. & Al. vs. Spooner, 3 Pick. 284.- Woolway vs. Rowe, 1 Ad. & E. 114.- - Spargs vs. Brown, 9 B. & Cr. 935. — Phil. & Am. Ev. 8th Lond. ed. 315, 392, 416, 417, 448.Greent. Ev. 213, 214. The declarations of a person living at the time of the trial are VOL. XIV. 19 217

PHELPS vs: GOODMAN, in Error.

not in general admissible to affect the title of a party to the suit, unless they be a part of the res gesta, or there be a privity of estate, or identity of interest between the per son making them and the party against whom they are offered in evidence. ED.]

ANDREW PHELPS, Plaintiff in Error, versus TITUS GOODMAN.

It is not erroneous for the Court of Common Pleas to enter judgment upon the report of referees, for a less sum than that awarded by them; the party in whose favor the award is made releasing the amount of the difference between the two sums.

THIS was a writ of error, brought to reverse a judgment of the Circuit Court of Common Pleas for this county, rendered upon the report of referees, appointed by the parties by a rule entered into before a justice of the peace, pursuant to the statute of 1786, c. 21.

It appeared, from the record brought up, that the report had been once made to the court, and recommitted to the same referees; and being again made at a subsequent term, was accepted by the court. And the court further ordered that the sum of 66 dollars 20 cents should be deducted from the amount found by the referees to be due from Phelps to Goodman, which sum Goodman released upon the record, and judgment was entered for the remainder of the sum awarded by the referees, with costs.

The errors assigned related to the said interference by the court, in reducing the sum reported in favor of the defendant in error, and suggested the want of jurisdiction in the court to do any thing more than recommit the report. And Gold argued that the judgment, not having pursued the report, which was its only foundation, was erroneous, and could not be supported.

By the Court. The principal error assigned by the plaintiff in error is, that the judgment does not comport with the report of the referees, being rendered for a less sum than was awarded by them.

By the record it appears that the report was accepted in the whole, and that judgment was rendered for a less sum than that which was awarded; the defendant in error, in whose favor the sum was reported, having released the difference upon the record.

[ * 253 ]

*There is no error in this, any more than there would be in a judgment at common law for a less sum than was returned in the verdict, the plaintiff having remitted the difference.

It would seem, by the language used by the counsel in the