Scott v. Williams — 14 Abb. Pr. 70

Majority

p. 70

SCOTT a. WILLIAMS.

Supreme Court, First District/ At Chambers,

December, 1861.

Headnote

Abbest fob Fbaud in Contbacting Obligation.—Evidence of CoNTEMPOBANEOUS FbAUDS.-BeFEBEE TO TAKE EviDENOE.

Where the defendant upon affidavit moves to vacate an order of arrest, which was granted on the ground of fraud in contracting the obligation upon which the action is brought, evidence of other contemporaneous frauds committed by the defendant is admissible, from its tendency to sustain the original charge of fraud, and to determine to which of the parties, in case of conflicting affidavits, credence should be given.

A referee appointed to take evidence should take all that is offered, and leave it to the court, on the hearing of the matter, to determine what is not competent.

Motion to discharge an order of arrest.

This action was brought to recover the price of a quantity of goods sold. An order of arrest was obtained on the ground of fraud in contracting the obligation, and also in attempting to dispose of property to defraud creditors. The defendants moved to vacate the order of arrest, upon affidavits contradicting the affidavits upon which the order of arrest was issued. The evidence as to fraud was conflicting, whereupon a referee was appointed to take the testimony and report to the court, with his opinion thereon. Before the referee certain evidence was offered by the plaintiffs, tending to show contemporaneous frauds. The referee excluded this evidence, and reported, as his opinion, that the order of arrest should be discharged. On the coming in of

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his report, the plaintiff excepted to the referee’s ruling as to the admissibility of evidence of contemporaneous frauds.

Peter Y. Cutler, for the plaintiffs.

William W. Peck, for the defendants.

Where the order of arrest is founded on affidavits showing, in the first instance, that the defendant was guilty of fraud in contracting the obligation upon which the action is brought, proof of other contemporaneous frauds of a like character has a tendency to sustain the charge of fraud upon which such order of arrest was granted, and is admissible.

The proof of other contemporaneous frauds does not make out a new cause of arrest in the action, but enables the court better to decide, in the case of conflicting affidavits of the parties, to whom credence ought to be given.

It follows, then, that on a motion to discharge an order of arrest in such a case, on affidavits introduced on the part of the defendants in support of the motion, that the plaintiffs may sustain the order and resist the motion by proving other contemporaneous frauds by the defendants. It will not be a departure from the case originally made, on which the arrest was granted.

It is the business of a referee appointed to take evidence, to take all that is offered, and leave it to the court, on the hearing of the matter, to determine what is or is not competent.

The authority of the referee here was to take the evidence and report it, with his opinion; not to hear and decide any thing.

The plaintiffs must have leave to hand up any affidavits which they may think proper for the purpose of resisting the defendants’ motion; such affidavits to be handed to the clerk at chambers on or before the second of January next, and the decision of the motion will be reserved till that time.