Curtis v. Moore

Cochean, J., delivered the opinion of this Court: The exception contained in this record presents the single question, whether the appellants, as attaching creditors of R. McEldowney & Co., were entitled to give in evidence certain declarations made by Robert McEldowney, a member of that firm, for the purpose of allowing a collusive and fraudulent possession of their property and assetts by the appellees. The evidence which the Court refused to admit, was that of James Henderson, offerer! by the appellants to show, ■that Robert McEldowney, before going to New York in the fall of 1856 to purchase goods, said to the witness, when neither of the appellees were present, that they were insolvent and expected to fail, and that the appellees advised them to fail full-handed; that McEldowney went to New York, made large purchases, and that the firm failed shortly after his return; that McEldowney then said to the witness, that he must cease to be cashier, as every thing was in the hands of the appellees. This testimony had been preceded by evidence showing that the McEldowneys failed on the 9th of December 1856, with upwards of 8100,000 worth of stock on hand, and that immediately after their failure, the appellees took and retained possession of the stock, until about the 9th of February 1857, during which time it was reduced to an ⁹⁶ amount less than $50,000. A mortgage made to the appellees on the 8th of December 1856, and a deed of trust made to Henry G-.

Rice on the 9th of February 1851, by the McEldowneys, were also offered in evidence. The fact sought to be established by the appellants, was the fraudulent possession,.by the appellees, of property and assetts of the firm of R. McEldowney & Co., and the question presented by the exception is, whether the rejected evidence, or any part of it, was admissible for that purpose. We are aware of no rule under which the declaration of McEldowney to the witness, that he was advised by the appellees to fail full-handed, could be considered