#### Kline *v.*First National Bank of Huntingdon.

On a feigned issue to determine the validity of the assignment of a legacy,

made at a time when the firm of which the assignor was a member was insolvent and its property was being sold under executions, evidence that the assignee had received a large amount of the assets of the firm over and above the debt due to him by the firm and had not accounted for the same, is admissible as evidence that the assignee held the property so as to assist them in defrauding creditors and placing the assets beyond the reach of creditors.

In such a case, an exemplification of the record, for the purpose of showing that, at the time of the assignment, the assignor was insolvent, and all his property was being sold under executions, and was insufficient to satisfy the judgments against him, and that he had no other property than the legacy assigned, is admissible, in connection with the other evidence in the case, tending.to show fraud in the transfer of the legacy.

An affidavit, made by the assignor of the legacy, in another proceeding, and a bill in equity in which he alleged that judgments were confessed by him and his partners without consideration and for the purpose of hindering and delaying their creditors, are admissible as declarations by the assignor.

Sending out the affidavit and bill in equity to the jury, after they retire for deliberation, is no cause for reversal, in this case.

*449May 28, 1888.

Error, No. 2, May T., 1888, to C. P. Adams Co., to review a judgment on a verdict for defendant on *a*feigned issue, wherein Enoch.Kline was plaintiff, and The First National Bank of Huntingdon was defendant, at Jan. T., 1887, No. 32. Trunkey, J., absent.

The defendant bank issued an attachment execution, on a j udgment against H. L. Beltzhoover, attaching a legacy due him in the hands of the executors of John Wolford, deceased. The executors presented a petition to the court averring that the legacy was claimed by Enoch-Kline as assignee, and praying that an issue might be framed so as to relieve them from any liability for costs in the contest.

Nov. 24,1886, the court awarded an issue between Enoch Kline, plaintiff, and The First National Bank of Huntingdon, defendant, to determine the following questions of fact: 1st, whether the alleged deed of assignment by Plarry L. Beltzhoover, April 23d, 1883, to the plaintiff in this issue was bona fide executed for the consideration of $8,000.00, or whether it is void for want of said valuable consideration; 2d, whether said alleged deed of assignment was given for the purpose of defrauding the First National Bank of Huntingdon and other creditors of Harry L. Beltzhoover. A declaration in assumpsit, as upon a wager, and a special plea in bar and a joinder in that issue, to be filed. The narr, plea and replication were duly filed.

On the trial, the evidence was to the effect that, on April 23, 1883, Kline, with Beltzhoover, his son-in-law, went from Hunting-don county to Adams county, where the legacy was payable, during the progress of the sale of the personal property of the firm of J. W. Mumper & Co., of which Beltzhoover was a member. Kline testified that he knew of the sheriff’s sale, and that the sale of the legacy was to give Beltzhoover money to go west. Beltzhoover’s interest in the legacy amounted to from $10,000 to $12,000. Kline bought it for $8,000, agreeing to transfer forty shares of stock of the United New Jersey railroad, worth $191.25 a share, and $350 paid in cash. The stock was not assigned until about a month afterwards.

The evidence also showed that Kline had loaned the sum of $4,000 to the firm of J. W. Mumper & Co. As security for this loan, they transferred to him a large quantity of iron, some of it in the hands of Caughey & Robinson. Shipments were made by Beltzhoover upon shipping-orders signed by Kline in blank. The amount realized from the sale of the iron was $7,057.09.

Enoch Kline, the plaintiff, being called to the stand by defendant, as for cross-examination, defendant proposed to ask him how much property of J. W. Mumper & Co., of which Harry L. Beltzhoover was a member, he had received prior to April 23, 1883, the date of the alleged assignment of the legacy, what he did with that property, and how much money he received as the proceeds of the sale *450of it, and what he did with the money received by him, and especially what he did with the surplus, over and above the amount of the alleged indebtedness of J. W. Mumper & Co. to him, contracted on Feb. 15, 1882; for the purpose of showing that this plaintiff had in his possession a large amount of the assets of the firm of J. W. Mumper & Co., of which H. L. Beltzhoover was a member, and that he held that property and the proceeds away from other creditors so as to assist them in delaying and defrauding other creditors, and preventing them reaching these assets that had been re-transferred to him.

Objected to that the purpose as developed does not connect this transaction in any way whatever with the question involved in the issue now before the court, and that it is therefore irrelevant.

Defendant’s counsel proposed to further show that the assignment of this legacy was a part of the general scheme to cover all the assets of J. W. Mumper & Co., and of each of the members of the firm, so as to be incapable of being reached by the creditors.

Objected to further that the purpose does not disclose or show that the assignee of the legacy in question called into this case had any knowledge of any such intention or purpose on the part of J. W. Mumper & Co., and therefore is not evidence.

' The Court: Witness being party plaintiff, on cross-examination, his conduct in the premises is entitled to be scrutinized closely, and every thing relating to his conduct with the assignor of the legacy. Objection overruled and exception. [1]

Kline testified, inter alia, that the iron was sold to him.

Defendant’s counsel offered in evidence the exemplifications of the record of Huntingdon county for the purpose of showing that H. L. Beltzhoover was insolvent at the time of the transfer of the share of his grandfather’s estate, — that he was being sold out by the sheriff in Huntingdon Co. on the very day this assignment bears date.

Objected to, that it shows no connection with or knowledge brought home to Enoch Kline, the plaintiff in this case; and without that it is not evidence. Mere insolvency, even if brought to the knowledge of the vendee, would be no evidence of fraud at all.

Ex-Judge Orvis : It is a fact in connection with other evidence in the-case.

The Court: I do not see very well how we can admit it in its bare shape.

Ex-Judge Orvis: That, at the time of this assignment, the assignor, H. L. Beltzhoover, was being sold out by the sheriff in Huntingdon county, — that all his property there was being sold by his creditors or alleged creditors, at the very time; — and we propose by these records to show that a large amount of the judgments were not paid after exhausting all his property in Huntingdon county; and that, as testified by Mr. Kline, he had no other property except that received by this assignment.

Mr. Bailey: The purpose of the present offer is to show that *451he was insolvent; and, with other circumstances, lead up to the conclusion that there was fraud.

The Court: Admitted, with the evidence already in the case and evidence to follow tending to show fraud in the transfer of the legacy. Exception. [2]

Defendant offered to show that $32,000.00, raised on the sale of the real estate, was appropriated to other judgments than defendants had given in evidence, that no part of the judgments given in evidence yesterday, amounting to something like $40,000.00, are included in these judgments, confirmed absolutely, and an appeal taken by some of the creditors April 20, 1887, by Samuel H. Irvin, one of the creditors of J. W. Mumper & Co., and now in the supreme court.

This embraced in the offer of yesterday, and under the same exception. [3]

Defendants also offered in evidence deposition of Eben M. Valentine, taken in the city of Philadelphia on May 4, 1887, between the hours of 8 a. m. and 6 p. m., before Theodore L. Randall, notary public; for the purpose of showing the amount of iron sold by the witness, Eben M. Valentine, for Enoch Kline, and the amount received for that iron and remitted to Enoch Kline. Offered in connection with the testimony on cross-examination of Enoch Kline.

Objected to as irrelevant and not pertinent to the issue trying. The Court : Admitted as tending to show combination, and shedding light on the transaction of the transfer of the legacy. Exception. [4.]

Defendant’s counsel proposed to prove that Mr. Kline kept an account in The First National Bank of Huntingdon; that he had a balance in that bank in the fore part of the winter of 1882 and 1883; that he drew a check for $760.00, or some amount of that kind, which exhausted his balance in bank, with the exception of a small sum of between one and two dollars; that for a long time prior to April 23, 188.3, that small sum was the only amount he had in bank; and that, during the time the bank was carrying the notés already spoken of by the plantiff, in his cross-examination, of $2,000.00 and $1,240.00, that at the time he renewed them in February and March, 1883, he had no funds in bank except this slight balance of one dollar and some odd cents; and that that balance remained there in the summer of 1883, when he closed his account by checking it out. To be followed by an account that he opened and kept in the Huntingdon Bank, — having testified himself that these two banks were the only two banks in which he kept accounts. For the purpose of showing that he had not the money that he alleges that he paid to H. L. Beltzhoover on April 23, 1883, — $350.00. For the purpose of contradicting his testimony, that is, showing that he had not the means of making this payment that he alleges; and to show that these remittances that he testified having received *452from Caughey & Robinson were not deposited in either of these accounts, the only accounts that he says that he kept in bank.

Objected to, that it is not evidence for the purpose offered; that it does not contradict Mr. Kline, because he said he kept and always had more or less money at home, and that he had the money which he had here in payment on account of this legacy in his pocket. Also, that from his testimony of his assets, he was a man of considerable means, and would most likely have much larger sums of money than the amount named about his person or house.

The Court: It will not be very important, gentlemen, but we will admit the evidence. Exception. [5]

The defendants having already proven that Enoch Kline, the plaintiff, was the father-in-law of H. L. Beltzhoover, from whom he took the assignment of the legacy in controversy, and had received from J. W. Mumper and H. L. Beltzhoover, large amounts of iron belonging to the firm of J. W. Mumper & Co., and that Enoch Kline and H. L. Beltzhoover came to Gettysburg together on the night of April 23, 1883, and had the assignment of the legacy from Beltzhoover written and executed, and together left early in the morning of April 24, 1883, defendants now propose to prove the declarations of H. L. Beltzhoover, that the judgments confessed by himself and J. W. Mumper and Mary A. Mumper, in the common pleas of Huntingdon county, were confessed without consideration, and for the purpose of hindering and delaying creditors of said firm of J. W. Mumper & Co., and to prove the same by the affidavit made by H. L. Beltzhoover, and filed in the common pleas of Huntingdon county, and also in a bill in equity filed in the common pleas of Huntingdon county by the said H. L. Beltzhoover against the said' Mary A. Mumper and J. W. Mumper. This for the purpose of proving the fraudulent purpose of H. L. Beltzhoover and J. W. Mumper in the disposition of their property.

Objected to.

The Court: It seems to me that it is competent; but it cannot affect Enoch Kline unless knowledge is brought home to him in this matter.

The offer objected to, 1st, that it is not the best evidence; 2ndly, that it is not a record; 3dly, it is a mere ex parte statement made without the knowledge of Enoch Kline, the plaintiff in this case, and cannot be used in evidence to affect him; 4thly, that it would be misleading and prejudice the jury against the plaintiff in this case, who had no connection whatever with this affidavit; specifically, that it is not an admission, because it is not an act of a party to the record. You cannot prove the testimony of outside witnesses in that way.

Ex-Judge Orvis : We do not offer it as a record, but as an affidavit made before the prothonotary. We offer the original paper, not the exemplification of the record, and prove by the prothonotary that it was sworn to before him.

*453The Court: The offer is to prove the declarations.

Ex-Judge Orvis : Certainly; it is simply a declaration of his and nothing more.

The Court: The objections are overruled and exception. [6]

The bill contained the following complaint, with the usual affidavit as to the truth of the averments:

“i. On April 2, 1881, he entered into partnership with John W. Mumper (whose present residence is to your orator unknown) by articles of agreement in writing, bearing date as aforesaid, and duly signed and sealed by each party, in which they agreed to associate themselves together as partners, under the firm name of J. W. Mumper & Co., for the purpose of manufacturing pig metal and blooms; also, to engage in mining, selling and shipping iron ore, and other business connected therewith, at Barre Iron Works, belonging to the estate of A. L.' Mumper, deceased, near Barre Station on the Pennsylvania railroad, in Huntingdon county, Pennsylvania, and at such other places as would be found necessary, the partnership to continue for a period of five years from April 1,1881.

“ ii.. The capital of said partnership was to be $20,000, of which amount your orator was to and did furnish $5,000 in cash, and was to receive as his share the one-fourth interest in all the profits of said business,-and sustain the one-fourth of all the losses; and John W. Mumper was to furnish the other three-fourths of the capital, viz: $15,000, and to receive three-fourths of the profits, and sustain three-fourths of the losses. Under said articles of association, J. W. Mumper & Co. carried on the business as aforesaid, and continued to do so until April 13, 1883, at which time all the personal property of said partnership was sold at sheriff’s sale.

“ hi. The business of said partnership was unprofitable, and carried on at a loss to the partners during the time said partnership was in existence, and during which time a large amount of indebtedness was contracted with S. H. Irvin, W. M. Philips, Bell & Day, and divers other parties, for merchandise and materials fur-' nished and used in and about the conducting and carrying on the Barre Forge Iron Works, aggregating over $40,000, the greater portion of which indebtedness was due prior to April 13, aforesaid, and the collection of a portion of which was being pressed by suit.

“iv. On or about Feb. 13, 1883, the creditors of J. W. Mum-per & Co. were pressing their claims for payment, through judgment and execution to follow, and at the special instance and request of John W. Mumper (your orator being young in years and inexperienced in business affairs) he joined with him in executing a judgment exemption note with waivers for the sum of $7,619.17, with attorney’s commission of five per centum for collection, payable to Mary A. Mumper, mother of John W. Mumper, one day after date, on which judgment was confessed April 12, 1883, in the court of common pleas of Huntingdon county, to No. 81, April Term, 1883, and on the same day a writ of fieri facias was issued *454thereon, to No. *4,*August Term, 1883, directed to W. J. Geissinger, sheriff of said county, and by virtue of which, together with other writs hereinafter named, he seized and levied upon all the personal property of J. W. Mumper & Co. in and about the Barre Iron Works, as fully appears by the endorsement on said writ, and, after advertising, sold said personal property on the 21st, 23d, 26th and 27th days of April, 1883, for the sum of $18,131.77, which amount was in part appropriated to the payment of the aforesaid judgment and costs.

“v. On or about April 14, 1883, at the request of John W. Mumper and under like circumstances as aforesaid, your orator joined with John W. Mumper in executing another judgment exemption note with waivers, for the sum of $3,000 with an attorney’s commission of five per centum, payable to Mary A. Mumper, on which said judgment note judgment was confessed on April 14,1883, in the aforesaid court, to No. 91, April Term, 1883, and a writ of fieri facias issued thereon to No. 8 of August Term, 1883, anda sale of the personal property of J. W. Mumper & Co., as aforesaid, by W. J. Geissinger, sheriff of said county; the sum of $3,201.95 was appropriated and paid over to Mary A. Mumper, or her attorney, from the proceeds of said sale in satisfaction of the same.

“ vi. On or about March 11, 1883, under like circumstances, your orator joined with J. W. Mumper in executing another judgment exemption note for the sum of $4,000, with an attorney’s commission, payable to W. C. Dotterer, and by him assigned to Mary A. Mumper, on which said note, judgment was duly confessed on April 21, 1883, to No. 119, April Term, 1883, in the court aforesaid, and on same day a writ of fieri facias was issued thereon, to No. 10, August Term, 1883, and, upon sale of personal property of J. W. Mumper & Co., on this and other similar writs as aforesaid, the sum of $4,259.21 was appropriated by the sheriff of Huntingdon county in full satisfaction of this judgment.

“vn. On or about April 24, 1883, your petitioner under like circumstances as aforesaid, joined with J. W. Mumper in executing a judgment exemption note for the sum of $9,764.50, with an attorney’s commission of five per centum for collection, payable to Mary A. Mumper, on which said judgment note judgment was duly confessed on April 25, 1883, to No. 129, April term, 1883, in the court aforesaid, and on the same day a writ of fieri facias was issued thereon, to No. 12, August term, 1883, and on the sale of defendant’s personal property by W. J. Geissinger, sheriff of Huntingdon county, as aforesaid, the sum of $2,248.44 was appropriated out of the proceeds thereof on account of the debt and interest of the same.

“ viii. At another date, which your orator cannot now give, but which was between March and May, 1883, your orator signed for John W. Mumper one or more judgment notes in blank as to amount, *455payable to Mary A. Mumper. What disposition has been made of the same your orator cannot now tell.

*“*ix. At the time of executing the said several judgment notes to Mary A. Mumper and W. C. Dotterer, the partnership of John W. Mumper & Co. was not indebted to either of said parties in the amount set forth in said notes, but said notes were given for the purpose of enabling the said Mary A. Mumper to prevent a sacrifice of the personal property of J. W. Mumper & Co., on executions that might soon issue against the same, by enabling her to levy upon and sell the personal property of J. W. Mumper & Co., and to hold the amount thus realized from such sale in trust for the benefit of J. W. Mumper & Co., and their creditors.

“ x. Your orator further avers that said Mary A. Mumper realized on the several judgments confessed as aforesaid from the sale of the personal property of J. W. Mumper & Co., the sum of $17,919, including officers’ costs, but has not accounted to said J. W. Mumper & Co., or any of their creditors, for the same, and has neglected and refused so to do, and the same remains in her custody and control.

*“ xi.*The said Mary A. Mumper is now without the jurisdiction of your Honorable Court, residing in the city of Columbus, in the state of Ohio.

“ No formal dissolution of the aforesaid partnership of J. W. Mumper & Co. was ever had, neither was there any settlement between the parties made, although complainant is now ready and willing, and always has been ready and willing, to account with defendants and pay them, or either of them, any money or balance which, upon the said accounting and settlement, may be due to said defendants or either of them.

“ Your orator prays relief as follows:

*“*1. That said partnership be dissolved by the order and decree of this Honorable Court.

“ 2. That an account be taken of all the accounts and transactions of said partnership, and the amount due and to be paid by each partner to the other be ascertained and determined.

“ 3. That a proper person be appointed to receive and collect all the outstanding accounts and moneys due to said partnership on account of the said partnership business or otherwise, and to recover and receive from said Mary A. Mumper, or any other person, all moneys, property or effects of whatsoever kind in any of their possessions or control, or in the possession or control of any person or persons for them and as their agent or attorney in any way belonging to said J. W. Mumper & Co., or for their use or held by them in trust for the several creditors of J. W. Mumper & Co.

“ 4. That the said Mary A. Mumper and John W. Mumper be ordered, required and directed by the order of this Honorable Court to deliver up to such persons as your Honors may designate and appoint, all the moneys, property or effects belonging to or per*456taining to the late partnership of J. W. Mumper & Co., or held by them, or either of them, in trust for said use, and especially the amount realized by her, Mary A. Mumper, from the proceeds of the sheriff’s sale of the personal property of J. W. Mumper & Co., also all books as aforesaid.

“ 5. That John W. Mumper and Mary A. Mumper be required and directed by the order of this Honorable Court to deliver over to such person as may be designated, all books, accounts, receipts, vouchers, statements, papers of or in any way belonging or pertaining to the partnership business of J. W. Mumper & Co.

“ 6. That the said defendants be severalty restrained by the order and decree of this Honorable Court, from in any way disposing of any of the property, monies, or effects of or belonging to said partnership of J. W. Mumper & Co., in their possession or control.

“ 7. That the said John W. Mumper and Mary A. Mumper be required, by the order and decree of this Honorable Court, to surrender and deliver up for cancellation any and all judgment or other notes or obligation of J. W. Mumper & Co., or J. W. Mum-per and H. L. Beltzhoover, now in their or either of their possessions or control, whether filled out in amount or executed in blank.

“ 8. Such other relief as to your Honors shall seem just in the premises.”

The affidavit, given under the above offer, was made in proceedings on petitions for issues to test the validity of two of the judgments above recited, and contained substantially the same averments as the bill.

The plaintiff presented, inter alia, the following point:

“ 9. Under all the evidence in the case, the verdict should be for the plaintiff, Enoch Kline, on both issues.” *Ans.:*This point is refused. [7]

After the jury had retired for deliberation, application was made to the court to send out to them the affidavit and bill in equity referred to above. The plaintiff objected to the papers being sent out. Objection overruled and exception. [8]

Verdict and judgment for defendant.

*The assignments of error*specified, 1-5, the rulings on the evidence, quoting the bills of exceptions, but not the evidence; 6, the admissions of evidence, quoting the bill of exception and evidence; 7, the answer to plaintiff’s point, quoting it; and, 8, the action of the court in sending out to the jury the affidavit and bill in equity, quoting them in full.

*J. C. Neely,*with him *David Wills,*for plaintiff in error.

The pledging of the iron was to secure a loan, and it was afterwards sold to Kline, and by him re-sold. This was a fair transaction. Fraud should not be presumed where a proper motive exists : Bear’s Est, 60 Pa. 430; Meade *v.*Conroe, 113 Pa. 220.

*457There was no offer to show that Kline knew of the insolvency of Beltzhoover at the time he bought the legacy. Besides, if a knowledge of the insolvency of Beltzhoover had been brought home to Kline, that of itself would not have made the transfer of the legacy fraudulent. The statute of 13 Eliz. does not render void a conveyance made by a man simply because he is indebted, and a purchaser from a fraudulent grantor or debtor, who has no knowledge of an intended fraud, is protected: Mateer *v.*Hissim, 3 P. & W. 160. Fraud is not to be inferred from mere indebtedness: Kelly’s Ap., 77 Pa. 232; Posten *v.*Posten, 4 Wh. 27.

After it had been proved that Kline had money at home, how does the fact that he had or had not money in bank, at that time, affect the question ? This evidence was clearly incompetent.

To make the admissions of Beltzhoover evidence against Kline, there must have been precedent proof of collusion and a common purpose or design of Beltzhoover and Kline to defraud the creditors of Beltzhoover: McDowell *v.*Rissel, 37 Pa. 164; Hartman *v.*Diller, 62 Pa. 37. The declarations of Beltzhoover, made in the absence of Kline, and of which he had no knowledge when he purchased the legacy, should not have been admitted : Scott *v.*Heilager, 14 Pa. 238.

It is not enough to charge fraud, and support it by circumstances of suspicion only. It is a serious accusation, not lightly to be inferred, and, to be of any avail, must be clearly proved: Mead *v.*Conroe, 113 Pa. 228; Morton *v.*Weaver, 99 Pa. 51.

Even if it was the intention of Beltzhoover, in selling his legacy, to hinder, delay and defraud his creditors, that fact has nothing to do with this case, unless Kline was a party to the fraud, and this must be clearly and distinctly proved: Reehling *v.*Byers, 94 Pa. 316.

There was no evidence sufficient to justify an inference of fraud on the part of Enoch Kline in buying the legacy, and it was therefore the duty of the court to withhold this insufficient evidence from the jury: Battles & Webster *v.*Laudenslager, 84 Pa. 446.

Allowing the ex parte affidavit of Beltzhoover and the bill in equity sworn to by him to be sent out with the jury, when they retired to deliberate, was error. The rule in Pennsylvania is well understood that depositions, even when taken on notice, are not to be sent out with the jury, if objection is made. That rule would apply with double force here, as the depositions are ex parte: Hamilton *v.*Glenn, 1 Pa. 340; Union Petroleum Co. *v.*Bliven Petroleum Co., 72 Pa. 173 ; Seibert *v.*Price, 5 W. & S. 438; Hendel *v.*Turnpike Co., 16 S. & R. 92; Alexander *v.*Jameson, 5 Bin. 238; Commonwealth Insurance Co. *v.*Sennet, 41 Pa. 161.

*John H. Orvis,*with him *W. McSherry, Jr.,*and *John M. Bailey,*for defendant in error.

The whole transaction between Kline and Beltzhoover, and Kline and J. W. Mumper & Co., was such that the jury had a right to consider it in all its details and to have all the *458light possible thrown upon the relations, connection and transactions between these parties.

In the case of Bear’s Estate, Chamberlain purchased from Bear his interest in his wife’s estate for the sum of $800, for the purpose of securing a debt owing him by Bear of $300. Here Kline was not a creditor of Beltzhoover, and the assignment is not pretended to have been made for the purpose of securing Kline.

Upon the trial of an issue involving questions of fraud, great latitude should be allowed in the admission of evidence that the jury may be enabled to determine from all the circumstances whether the transaction was fraudulent or not: Reinhard *v.*Keenbartz, 6 Watts, 93; Garrigues *v.*Harris, 17 Pa. 344; B. & O. R. R. *v.*Hoge, 34 Pa. 214; Stauffer *v.*Young, 39 Pa. 455; Simons *v.*Vulcan Oil & Mining Co., 61 Pa. 202; Stewart *v.*Fenner, 81 Pa. 177; Zerbe *v.*Miller, 16 Pa. 488; Deakers *v.*Temple, 41 Pa. 234; Evans *v.*Matson, 56 Pa. 54; Heath *v.*Page, 63 Pa. 108; Batdorff *v.*Bank, 61 Pa. 179.

Insolvency of the firm was the only reason why any creditor was injured by an improper, illegal or dishonest disposition of their assets. It therefore was important to prove the insolvency, as a substantive fact, and also to show Kline’s knowledge of it.

Mateer *v.*Hissim, and Posten *v.*Posten, are both cases where it was held that a voluntary conveyance of real estate made by one indebted, was not void as to creditors, if the voluntary grantor at the time of the conveyance retained other property amply sufficient beyond a doubt to pay all his debts. In Kelly’s Appeal, the only question was whether a decedent had died seized of any interest in land sold at sheriff’s sale, in consequence of which the proceeds of the sheriff’s sale were payable to his administrator to be distributed by the orphans’ court.

In order to make the evidence as to the condition of plaintiff’s bank-account admissible, it was not necessary that it should establish beyond the possibility of cavil that Kline did not own the money. All that was necessary to make the evidence admissible was that it should tend to prove the proposition.

As to the admission of the affidavit and bill in equity: The other evidence in the case showed the relationship of Kline and Beltzhoover, that they were acting in concert in shipping and selling the iron pledged to Kline, and in covering up the surplus; that, under peculiar circumstances, they went together to Gettysburg; that Kline knew that Beltzhoover was insolvent, and wanted to go west, and that, during the absence of Kline, Beltzhoover continued to ship the iron on his account. Surely this was sufficient evidence of concert and collusion to admit the declarations of the one as evidence against the other : Hartman *v.*Diller & Groff, 62 Pa. 37; Kelsey *v.*Murphy, 26 Pa. 84; Souder *v.*Schechterly, 91 Pa. 83. A very slight degree of concert or collusion is sufficient to admit the declarations of both parties to the fraud: McDowell *v.*Rissell, 37 Pa. 164; Rogers *v.*Hall, 4 Watts, 359.

*459Oct. 1, 1888.

In Scott *v.*Heilager, evidence of declarations of the vendor were offered without having previously given any evidence of collusion, fraud or combination, and this was held to have been error.

In Mead *v.*Conroe, the court say: “ Of course if it was a case of a private sale, or transfer by Crull to Mead, the situation would be very different. Crull’s declarations would then have much greater significance.”

A jury may take out with them any writings which have been given in evidence, whether sealed or unsealed, except the depositions of witnesses: Alexander *v.*Jameson, 5 Bin. 237. What papers shall be sent out with the jury is discretionary with the court, and therefore not the subject of a writ of error: Spence *v.*Spence, 4 Watts, 165.

The necessary result of what Kline did was to hinder, delay and defraud the creditors of Beltzhoover : Reinheimer *v.*Henningway, 35 Pa. 432. The court should have directed a verdict for defendant in place of submitting it to a jury.

Per Curiam,

Judgment affirmed.