Hamilton v. Scull's Adm'r

• Decision Date: 31 March 1857
• Parties: HAMILTON, Respondent, v. SCULL'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

25 Mo. 165

HAMILTON, Respondent,

v.SCULL'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. It is a good defense to an action on a promissory note that it was given to the plaintiff in furtherance of an attempt on his part to defraud his creditors.

2. The fact that depositions offered in evidence may contain incompetent and illegal evidence, will not justify the rejection of them altogether. The court should point out and exclude the inadmissible portions.

Appeal from St. Louis Circuit Court.

This was a suit to establish against the estate of Joseph P. Scull, deceased, a demand of $1,124.06, being the balance alleged to be due upon a promissory note for $7,097.25, executed by said Scull. At the trial in the Circuit Court the plaintiff proved the execution of the note. The defendant then offered in evidence the depositions of Sterling H. Tucker and James Scull, tending to prove that the consideration of the note was frauduleut in this, that Hamilton, the payee, had made a fraudulent sale of a stock of goods to Joseph P. Scull, to hinder, delay and defraud his (Hamilton's) creditors, and that Scull had executed and delivered said note to Hamilton for the purchase money. The court, on motion of plaintiff, excluded the depositions.

Garesché (defendant) and Buckner, for appellant.

I. The maxim “ in pari delicto potior est conditio defendentis” applies to this case. It may be well held that the defendant would not be permitted to show, as a substantial ground of defense, that the note was made to delay and defraud creditors, on the well-known maxim “ nemo allegans suam turpitudinem audiendus sit;” but want of consideration is shown, and it is the plaintiff who seeks to rebut this defense by insisting that the depositions tend to show that the notes were executed by him to defraud his creditors. The nature of this transaction is necessarily brought out in the attempt to prove want of consideration, a legitimate defense, and if incidentally the character of the transaction is also shown, the plaintiff should not be allowed to benefit by it upon the rule “ in pari delicto potior est conditio defendentis. ” (See Wearse v. Pierce, 24 Pick, 141, and cases cited.)

L. K. Kinsey, for respondent, cited Brown's Adm'r v. Finley, 18 Mo. 375.

SCOTT, Judge, delivered the opinion of the court.

This was a suit begun in the Probate Court of St. Louis county for the purpose of establishing a demand against decedent's estate--being a balance on a note executed by the intestate to the plaintiff. Garesché, the defendant, offered evidence tending to show that the note had its origin in a fraudulent combination between the parties for the purpose of defrauding the creditors of plaintiff. This evidence...