#### William Wyckoff v. Francis W. Carr.

"Where an. assignment for the benefit of creditors is attacked as fraudulent, it is competent for the creditors attacking it to prove the declarations of tho assign nor, made after the assignment was signed and delivered, but before the schedules were-made out and attached, and while the assignor was engaged in pre-* paring them.

The cases of *Oliver v.*Eaton, 7 Mich. 108, and *Bagg v. Jerome,*7 Mich. 145, approved.

*Heard January 7th.*

*Decided January*9*th.*

Error to Jackson Circuit.

Carr sued Wyekoff in the court below, in trover, for a stock of goods which Wychoff, as sheriff of Jackson county, had taken on attachments as tho property of one Pool. Carr claimed the goods by virtue of a general assignment made to Mm by Pool for the benefit of creditors.

On the trial, after plaintiff had rested Ms case, defendant called Eugene Pringle as a witness, who testified that at the time of the assignment he had in Ms hands demands against Pool, and on the next Monday after the date of the assignment he called on Pool, at the store where the goods were, and Pool there made a statement to Mm relative to the schedule to the assignment. Defendant’s counsel then asked the witness what this statement was. Plaintiff’s counsel objected to the question, and the court sustained the objection. The witness further stated that he asked Pool to let Mm see the schedule of property, and that he after-wards asked Mm if the schedule was made out. Defendant’s counsel then asked the witness what Pool said in answer to this inquiry. Plaintiff’s counsel objected to the question, and the court sustained the objection.

The witness further testified that Carr afterwards told Mm the schedule was not yet made out, but that three or four weeks later he informed him it was then completed.

From Pool’s testimony, who had been previously called as a witness for plaintiff, it appeared that the schedule was made out on the next Tuesday after the date of the assign*45ment. At the time of the interview with Pringle, he was acting as clerk for Carr in selling the goods. The assignment was delivered to Carr on the day of its date.

There was evidence in the case that a short time before the assignment, Pool had bought out one who had been a partner' with him in business; and defendant’s counsel asked the eom't to charge the jury that if they should find, from the testimony, that Pool, in contemplation of making an assignment, purchased his partner’s interest and dissolved the partnership, then such purchase and dissolution were conclusive evidence of fraud in law, and would render the assignment fraudulent in law. The court refused so to .charge, but did charge that the purchase by Pool of his partner’s interest, if made in contemplation of assignment, was a matter for their consideration from which to determine whether there was or was not actual fraud in making the assignment. The court further charged that the annexing of a schedule of the property assigned was not absolutely essential to the validity of the deed, and that in the absence of fraud the deed would convey the property without a schedule; but that it was proper for the jury to consider the time, manner and other circumstances of making and attaching the schedule, for the purpose of determining whether the assignment was made with fraudulent intent or not. The jury rendered a verdict for plaintiff.

The errors assigned in this court were, 1st and 2d, that the court erred in sustaining the objections to the questions asked Pringle; and 3d and 4th, that the court erred in its charge to the jury as above given.

*Johnson & Highy,*for plaintiff in error:

Pool, at the time of the interview with Pringle, was in possession of the property, either as agent of the assignee or in the duty of completing the assignment by making out the schedule of the property. In either case his declara*46tions were admissible. If engaged in completing the assignment, his declarations would be those of a principal, and admissible as such.

*Blair*Gibson, for defendant in error :

The declarations of the former owner of personal property can not be given .in evidence to affect the title of the succeeding owner, where such declarations are made after he has parted with his interest. — 1 *Greenl. Ev.*§192 *and note*2; 12 *Wend.*164; 7 *Cow.*752; 8 *Wend.*490 ; 1 *Comst.*519. The statement of Pool, called for, was not. admissible as part of the *res gestes.*He was not in possession, but acting as a mere clerk. The offer of testimony Was an attempt to destroy a contract by a conversation between others, and not to show possession, or the character of that possession. The declarations of a jierson in possession of property, and not a party to the suit, are only admitted on the principle that they are cotemporaneous with and explanatory of some act which is admissible, and therefore part of the *res gestes.*— 2 *Mich.*390 ; 1 Gray, 551; 14 *N. H.*101; 2 *Shep.*32; 3 *Kern.*582; 24 *Pick.*242.

Martin Cn. J.:

We think the Circuit Judge erred in sustaining the objections made to the questions propounded to Pringle, as to the statements of Pool to Mm, touching the schedule. Although the assignment may then have been so far completed as to render it a valid conveyance of Pool’s property, m the absence of fraud, (which is a question not submitted to us) yet these statements, whatever they were, appear to have been made before the schedule was made out and attached, and while Pool was making it. He still had the ostensible custody of the property, but whether under Carr’s employment, or in his own right, was a question to be determined on the trial. The transaction was claimed to be fraudulent, and the defendant below was attempting to prove *47it to be such. Pringle represented some of the creditors of Pool, and interrogated liim respecting the schedule. Situated as Pool was in relation to the assignment, the property and the assignee, and the object of the inquiry being to ascertain the real nature of the transaction, his answers were competent evidence, and should have been admitted. They would not be the statements of an indifferent party, nor would the evidence be hearsay; but the statements of an actor pending the transaction, made before its full completion. In cases where fraud is the subject of investigation, the statements of the parties charged with it are, and must of necessity be, permissible in evidence if made before the instrument charged to be fraudulent is completed, or while it is being made. Othenvise in the great majority of cases fraud as a fact could never be shown. It would not only be an unsafe but an unjust rule, which should confine a party attaching an instrument upon such ground, to the testimony of the party charged with the fraud. It is claimed that these statements, so long as the assignment had been made, were not a part of the *res gestee,*and consequently the evidence of Pringle would be hearsay — Pool being the only competent witness, by whom to prove the facts squght to be established. As an actor, his statements may be-proven by any one who heard them, as well as by himself, even although his statements were not strictly *res gestae,*not being facts in the transaction, nor made by him while in the act of making the schedule, although made during the period which elapsed between its commencement and completion. Much difficulty exists at times in determining Avhat declarations are *res gestee,*but there is none in holding that the declarations of a party in interest, although at the time he is taking measures to divest himself of his interest, or that those of an actor, before -the transaction is completed, are admissible evidence, on the ground of such interest, or relation to the transaction.

For this error, we think the judgment should be reversed, and a new trial granted.

*48The third and fourth assignments of error are determined by the cases of *Oliver v. Eaton,*and *Bagg v.*Jerome, in 7th Michigan Reports.

The other Justices concurred.

*Judgment reversed.*