Reed v. Thayer
| Decision Date | 29 May 1857 |
| Citation | 9 Ind. 151 |
| Parties | Reed and Another v. Thayer and Another |
| Court | Indiana Supreme Court |
From the Miami Circuit Court.
The judgment is reversed, with costs. Cause remanded for a new trial. The reversal extends back to the issues, and carries costs to that point. Doyle v. Kiser, 8 Ind. 396.
Nathan O. Ross, Robert P. Effinger, David McDonald and Albert G Porter, for appellants.
Horace P. Biddle, E. T. Dickey and Hervey J. Shirk, for appellees.
Reed Thayer and Constant were partners, and dissolved their connection as such. This suit was instituted by Thayer and Constant against Reed, with whom they also joined one Miller, as a co-defendant; and the complaint, being somewhat in the nature of a bill in chancery under the old practice, alleged that Reed had got possession of the effects of the firm, and had assigned near 7,000 dollars in amount of them to Miller,--ostensibly to secure payment of a pretended debt of the firm, evidenced by notes executed by Reed--but really in pursuance of a conspiracy between him and Miller to cheat and defraud said Thayer and Constant, as the firm was not in any manner indebted to Miller. The complaint contained additional allegations, but enough has been stated for the purposes of the investigation now to be made.
The separate answers of the defendants, so far as the present occasion is concerned, may be taken as denials under oath of the complaint. The cause was put at issue by replies. A jury was called, the cause heard, verdict and judgment for the plaintiffs.
Several questions are presented by bills of exception. The debt pretended to be due from the firm to Miller was alleged to be for money lent, 6,000 dollars. And as tending to prove that Miller had not had that amount of means at the time at which it was claimed the moneys were loaned, the list of his taxable property, as sworn to by himself, was offered in evidence. But the defendants objected to it on two grounds--1. Because it was irrelevant testimony. 2. Because, being denied under oath, it had not been sufficiently proved. The paper was admitted, and, we think, correctly. It tended to prove an important point in the plaintiff's case, and not being a paper incorporated into or referred to in the pleadings as the foundation of the action or defense, it did not fall within the rule of the statute as to such papers. It did not require the corroboration of two witnesses, or facts equivalent thereto. 2 R. S. p. 44, sec. 80.
The defendants were not permitted to give evidence of general reputation as to Miller's pecuniary means. We think this was no error; and, so far as this case is concerned, we so decide; but with a hesitation that will leave the point open to reconsideration on fuller argument. The suit involved simply questions of private concern. It is well settled, as the general rule, that hearsay evidence is not admissible. Some exceptions to the rule, such as proof of pedigree, boundary, moral character, etc., have been established; but the disposition of Courts is not to multiply them. Per Story, Justice, in Ellicott v. Pearl, 10 Pet. on pp. 435, 436. See, on this point, 1 Greenl. Ev. p. 213, et seq. We have not found any case where such evidence has been admitted to prove the solvency or insolvency of a party. In the U.S. Dig. vol. 14 (1854), p. 275, sec. 247, it is laid down that, We have not been able to obtain the volume of reports cited, and we place no confidence in the correctness of the digest. We do not, therefore, cite it as authority, but simply as a reference to a case to be examined, when opportunity offers. See Herald v. Scott, 2 Ind. 55.
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