
    David C. Lapham, Resp’t, v. Martha A. Marshall, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Evidence—A rude oe defined.
    A rule of evidence may be defined to be the mode and manner of proving the competent facts and circumstances upon which a party relies to establish the facts in dispute in judicial procedure.
    
      2. Same—Deposition in supplementary proceedings—When inadmissible—Code Civ Pro., § 3460.
    Where on the trial of the special issues in a civil action the plaintiff ■offered in evidence, as against the defendant, a deposition signed by her in supplementary proceedings instituted prior to the commencement of the present action, which was objected to by defendant as incompetent, and as a privileged communication under section 3460 of the Code of Civil Procedure, as it existed at the time of the examination; and subsequently, after the present action was begun, the section was amended, limiting the prohibition to the use of evidence against the wit- . ness in criminal proceedings only, Held, that the immunity which the statute bestowed upon the witness examined before the repeal took place, continued after the repeal, and might be invoked in her behalf when her evidence was sought to be read in a civil action.
    3. Same—Insolvency—What incompetent to prove.
    Where the plaintiff, for the purpose of establishing the defendant Marshall’s insolvency, at the time of the conveyances, was permitted to give in evidence, judgments recovered against him after the deeds were delivered, and after the commencement of the action, Held, incompetent evidence as against his grantee.
    Appeal from a judgment of the Wayne special term, declaring that a deed of certain lands, executed by William J. Marshall to the defendant, Henry H. Hickox, and one by the latter to the defendant Martha A. Marshall, were fraudulent and void as against a judgment held and owned by the plaintiff against the defendant William J. Marshall, and that such deeds be vacated and set aside as against the said judgments. And also an appeal from an order of the same special term denying the appellant’s motion for a new trial of special issues tried before the jury. This action is in the nature of a judgment-creditor’s bill. The defendant William j. Marshall, is the husband of the defendant Martha A., and on the 11th day of April, 1874, he conveyed to the defendant Hickox, the lands in question with the understanding at the time the conveyance was made, that he received the title pro forma, for the purpose of conveying the same, as trustee, to the defendant Martha A.
    After the conveyances were executed the judgment upon which the action was founded was recovered against William J. Marshall for the sum of $533.95. The plaintiff' charged that the deeds were without consideration and were made by all the parties thereto, with an intent to cheat- and defraud the creditors of the first named grantor. The-answer denies the allegation of fraud, and Mrs. Marshall claims that the same were based upon a valuable consideration paid by her to her husband. Special issues were framed for the purpose of trying the question of fraud, and to ascertain the amount of consideration money, if any, which was paid by the said Martha to her husband for the conveyance. The question of fraud was decided against the defendants and the jury found that Mrs. Marshall actually paid to her husband $500, as the consideration for the deed and nothing more. The motion for a new trial was made by the defendants founded upon exceptions, which was denied at the same special term at which the final hearing was had, the judgment directed, setting aside the conveyances as against the plaintiff’s judgment.
    
      S. B. McIntyre, for app’lt; Stephen K. Williams, for resp’t.
   Barker, P. J.

The appellant does not claim that the findings of the jury on the special issues were against the weight of evidence, and we have only to consider the exceptions to the rulings made by the trial judge on the trial of the special issues herein.

The issues of fraud presented the only question in serious dispute. The record shows and the counsel for respondent has made his argument as if it were so, that the special term m disposing of the case, on the hearing of the questions reserved, adopted without modification the facts as found by the jury.

This being so, the judgment rests for its support upon the special verdict, and therefore the exceptions taken on the trial before the jury are properly here for review. Before this action was commenced, the plaintiff instituted supplementary proceedings against the judgment debtor, and on the hearing before the officer who conducted those proceedings, he called and examined as a witness in his own behalf, the defendant, Martha, whose evidence was reduced to writing and signed by her. On the trial of the special issues, the plaintiff offiered in evidence as against the defendant Martha, portions of such deposition, to which she interposed the objection that the same was incompetent and was a privileged communication, by virtue of the provisions of section 2460 of the Code of Civil Procedure, as it existed at the time of the examination. The objection was overruled and the defendant, Martha, excepted. The examination was in December, 1880, and the said section was amended in 1881, and this action was commenced thereafter. As enacted, that section provided, that a party or a witness examined in a special proceeding, supplementary to execution, is not excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud; or to prove that he has been a party or privy to, or knowing of a conveyance, assignment, transfer, or other disposition of the property for any purpose * * * but an answer cannot be used as evidence against a person so answering in a civil or criminal action, or in any other special proceeding, civil or criminal.

The amendment of 1881 struck out from the last paragraph of this section the word “ civil, ” and thereby limiting the prohibition to the use of the evidence against the party or witness to criminal proceedings only. In this state, by legislative enactment, it has been for a long time made a misdemeanor for any person to become a party to a conveyance of real or personal property with an intent to-hinder, delay, or defraud creditors; or, being a party thereto, willfully putting the same in use as having been, made in good faith. Penal Code, § 586 ; 2 R. S., § 3, p. 776, 3d ed.

If the conveyance by the judgment-debtor to his wife of the premises was made by him and received by the defendant, Martha, for the purpose of cheating and defrauding creditors, as charged in the complaint, and as established by the final judgment, the defendant, Martha, was guilty of a crime. At the time of her examination, which took place December, 1880, she was liable to a criminal prosecution for the crime which she had committed, as the statute of limitations applicable to that class of offenses had not run against the right of the people to prosecute her for the offense which, it is alleged, she had committed.

For these reasons it is conceded that the defendant, Martha, when she was on examination before the officer, could have rightfully claimed her privilege and declined to-answer the questions propounded to her, bearing upon the question of fraud, except for the qualifying clause of section 2460, which, in terms, declared that any criminating evidence given on examination of a witness in supplementary proceedings should not be read against him in any civil or criminal action. The privilege which the law bestows on a witness, that he shall not be compelled to give evidence in any judicial proceeding which would tend to-convict him of a crime, has its foundation in the precepts and practice of the common law, which are also incorporated in the bill of rights contained in article 1, section 6, of our constitution, which declares that “no person shall be compelled in a criminal case to be a witness against-himself.” The privilege thus secured to the citizens, the courts are careful not to invade, and never require a witness to give up the secrets of his own mind if they would tend to convict him of a crime, unless complete immunity is granted to him by the law-making power of the state, which, in terms, prohibits the use of his evidence in a criminal prosecution. Up to this point in the discussion the learned counsel, who appeared before us on the argument of this appeal, do not materially disagree, ■ but from here onward, their respective arguments are irreconcilable. The plaintiff’s counsel contend that by the repeal of the provisions of section 2460 that the evidence given by her should not be used against her. in a civil action, limited the protection given to her answer as a privileged communication to criminal proceedings, and that her deposition was competent evidence in any civil action prosecuted against her, where the same would tend to prove any fact in dispute as between herself and other parties thereto. The argument presented in support of this proposition is, that the statutory provision, so far as it declared that the evidence of a witness which might tend to prove that she had been guilty of a fraud, should not be read against him in a civil action, was a mere rule of evidence declared by the legislature which could be repealed or modified at any • time, and, when so repealed, evidence which had been previously given could be used the same as if the immunity, so far as it was taken away, had never been given.

Wliat is a rule of evidence ? The text writers say that the word evidence in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Grreenl., § 1. A rule of evidence may then be defined to be the mode and manner approving the competent facts and circumstances upon which a party relies to establish the fact in dispute in judicial procedure. It is undoubtedly true that the legislature may change or alter the mere rule of evidence and establish a new way or manner of proving or disproving a question of fact in controversy. But wé think the question under consideration involves something more than a rule of evidence and the immunity which the statute bestowed upon witnesses examined before the repeal took place continued after the repeal, and may be invoked in their behalf when their evidence is sought to be read in a civil action. But for the immunity offered by the statute that the evidence should not be used against the witness in a criminal proceeding, she could not have been compelled to have answered questions propounded to her relative to the consideration which she paid for the deed, nor the circumstances attending its execution and delivery. It is true that the immunity offered by the statute as it read before the amendment was broader than it was necessary that the legislature should provide for the purpose of compelling an answer to the inquiry made of the witness, nevertheless, it was one of the considerations which the legislature then thought proper to offer for the purpose of inducing the witness to disclose secrets relative to her private transactions. ISTo one will contend that if the legislature had withdrawn all the immunity given by the statute, including the one that the evidence should not be read on a criminal trial, charging the witness with the same fraud as to which the evidence related, that the same could be read against the witness upon an indictment charging that the deed was executed with an intent to cheat and defraud the creditors of the grantor.

The provision of the statute which was repealed was as sacred as the one which remained in effect, and it would be unjust to the witness not to give her the full benefit of the promise made by the legislature when she gave her evidence, and we think that no such effect should be given to the amendment. In determining the effect of the amendment we must assume that the legislature did not mean to violate its promise given. to the witness, nor to divest her of an acquired right. It is always to be presumed that a statutory law as to its legitimate office is intended to furnish a rule as to future actions, to be applied in cases arising subsequent to its enactment. The law is never to have retroactive effect unless its express letter or clearly manifest intention requires that it should have such effect.

In Dash v. Van Kleeck (7 Johns., 499), Kent, chief justice, said that “we will presume, out of respect to the lawgiver, that the statute was not meant to act retrospectively,, and that a statute ought never to receive such a construction if it be susceptible of any other.” N. Y. and O. M. R. R. Co. v. Van Horn, 57 N. Y., 473.

In Palmer v. Conly (4 Denio, 376), Jewett, J., says: “It is a doctrine founded on general principles of the law that no statute shall be construed to have a retrospective operation without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no' meaning unless such a construction is adopted.”

The only retrospective operation which it would be possible to give to this statute would be to take away from a party, or a witness, the right which existed before its adoption, for, as a rule of evidence, it could only apply to future examinations.

The plaintiff, for the purpose of establishing Marshall’s insolvency at the time of the conveyances, was permitted to give in evidence judgments recovered against him after the deeds were delivered, and after the commencement of this action. We think they were incompetent evidence as against the grantee, Mrs. Marshall, and that her objection to their reception should have prevailed.

The first question submitted to the jury was framed as follows: “Was the transfer of the premises described in the complaint on the 26th day of May, 1879, by the defendant, William J. Marshall, through the defendant, Henry H. Hickox, to the defendant, Martha A. Marshall, made with an intent on the part of William J. Marshall to hinder, delay or defraud creditors %

The defendant’s counsel asked the court to charge the jury that if they find that the sole intent of William J. Marshall, in the transfer, was to procure means to discharge the claims of Adriance, Pratt & Co., then their verdict should be m the negative to the first question. The court declined to charge as requested, but said to the jury, if they found he had no intent to hinder his creditors, or did not know that the result would be to hinder his creditors, and simply meant to pay the debt without thinking anything about that, that is so, but refused to charge in the language of the request.

The defendant excepted to the refusal to charge as requested and to the charge as made. We think the refusal was a correct ruling, because the effect of the proposition was to change.the form and character of the precise question submitted to the jury by the court for their consideration.

It was a question for the jury to consider in passing upon the question submitted, and if they found that the sole intent of Mr. Marshall was to raise money* to pay off the claims of Adriance, Pratt & Co., they might have been satisfied that he had no intent to hinder, delay or defraud creditors. The judge by the qualifications which he made in the request to charge in effect told the jury that if he had no intent to delay or defraud his creditors, then they could answer the question in the negative.

Other exceptions were taken to portions of the charge and, also, to the refusal to charge several propositions as proposed by the defendants. We have examined them and see no error.

We are to consider whether a new trial should be granted for the errors which we have indicated. As to the reception of the judgment-rolls, as evidence upon the question of Mr Marshall’s insolvency, the error is not. so serious as to induce us to grant a new trial in view of the rule which prevails in this class of cases, and is stated in section 1003 of the Code of Civil Procedure, that in an application for a new trial on the ground, of error in the admission or the exclusion of evidence, or any other ruling or direction of the judge upon the trial, may, in the discretion of the court, which refused it, be disregarded; if the court is of the opinion that substantial justice does not require that a new trial should be granted, there was no real dispute on the trial, but that as a matter of fact Marshall was insolvent when the lands were deeded.

As to the other error which we have indicated we think it so serious in its character, that it cannot be disregarded, and that substantial justice does require that a new trial should be granted and that the question of fraud be tried and determined upon legitimate and unexceptionable evidence.

The portions of Mrs. Marshall’s evidence given in the supplementary proceedings and which was read on the trial, relates to the question of fraud. It bears on the important question as to the amount and also the mode and manner of paying the consideration for the deed.

It is manifest that upon reading the whole case that the jury were led to believe that the transaction was fraudulent for the reason that the consideration paid was not adequate, ns they found she only paid the sum of $500.

There is some reason for the contention that the introduction of this evidence compelled the appellant to take the .stand as a witness in her own behalf for the purpose of ■explaining some parts of her evidence given before the officer, who conducted the supplementary proceedings. The reception of the evidence deprived the appellant of what we regard as a most sacred as well as substantial right and unless .it can be clearly demonstrated as we think it has not been, that no injuries resulted to the appellant from its reception, a new trial should be granted.

Judgment reversed and new trial granted upon the special issue and the costs of this appeal to abide the final award of costs.

All concur.  