
    Stephen Windover and Joseph Hopkins, Appellees, against John Robbins, Appellant.
    An action will lie for the advancing money to a bankrupt, with intent and to enable him to obtain on a credit, merchandise which goes into possession of the lender, although the plaintiff never had any view ledge of the defendant.
    THE plaintiffs, as merchants trading in company, declare in trespass on the case, that at the city of NewYork, on the 27th of November, 1795, one James Robinson was indebted to them in the sum of 144l. 2s. 1 1d. New York currency, balance due from said Robinson, on account of goods, &c. sold to him. That Robinson was then, and ever since hath
    been, a bankrupt, which was unknown to the plaintiffs, and well known by the defendant. That the defendant conspiring with Robinson to defraud the plaintiffs, and to procure the plaintiffs to sell to Robinson on credit, goods, wares, and merchandise, to the amount of 610l. 11s. 10d. NewYork currency, did advance Robinson, as of his own proper moneys, the sum of 320l. of the same currency, with intent that Robinson should be able to pay the plaintiffs the sum due to them, and to purchase of them goods to the amount of 610l. 11s. 10d. as aforesaid, the residue of said 320l. going in part and prompt payment towards said goods. That the said James Robinson, conspiring as aforesaid, on the 20th of November, 1795, did, in the said city of New-York, apply to the plaintiffs to vend him goods to the amount of 610l. 11s. 10d. and did then and there promise and offer to advance the plaintiffs, in hand, 320l. as aforesaid, to pay the above balance of 144l. 2s. 11d. and towards the amount of the goods so to be sold, on condition that the plaintiffs would give credit and a day of payment for the remainder, or balance to be due for said goods, &c. amounting to the sum of 434l. 4s. 9d. of the same currency, equal in value to the sum of 1,086 dols. 84 cts. of the current moneys of the United States. Whereupon the plaintiffs, deceived by the conspiracy and fraud of the said Robbins and Robinson, did sell and deliver to the said James Robinson, goods, wares, and merchandise, to the said amount of 610l. 11s. 10d. and the plaintiffs then and there received of said James Robinson the said sum of 320l. in full discharge and payment of said balance due them upon said former account, amounting to the said sum of 144l. 2s. 11d. and in part payment of said sum of 610l. 11s. 10d. and did then and there credit the said James Robinson for the balance then due, amounting to the sum of 434l. 4s. 9d. as aforesaid, to be paid to them when he the said James Robinson should be thereto requested. And the plaintiffs in fact say, that the said James Robinson, conspiring as aforesaid, and in pursuance of the fraudulent combination with the defendant as aforesaid, having so received said goods, &c. of the plaintiffs, then and there forthwith delivered the same to the defendant for his the defendant’s sole use and benefit, and that the defendant then and there forthwith received the same, and hath converted them to his own proper use. And the plaintiffs in fact further say, that the said James Robinson has never since been able to pay to them the aforesaid sum of 434l. 11s. 10d. New-York currency, nor any part thereof, although often thereunto requested and demanded. Wherefore the plaintiffs say, that by the fraudulent and deceitful conduct of the defendant, combining and conspiring with the said James Robinson, they have been injured, ad damnum, 2,000 dollars.
    General issue joined, and put to the Jury,
    In support of the declaration, the plaintiffs’ counsel offered to show in evidence the confessions of James Robinson to prove the conspiracy,
    The defendant’s counsel objected, That James Robinson was not a party to the suit; and if he were, his confessions ought not to prejudice the defendant. That if it should be understood to have been the decision of the Court, that Robinson's acts or words were admitted in evidence to charge the defendant, it would follow that a plaintiff might hereafter maintain an action for the most aggravated fraud against the most honest man, merely by coupling him in his declaration with a villain, and showing the confessions of the latter to charge the former.
    In an action of deceit, in nature of a conspiracy, the acts or speeches of an alleged particeps in the fraud cannot be admitted in evidence to the Jury until a privity between him and the defendant is first shown, to the satisfaction of the Court. But when proved, the most liberal latitude will be allowed in showing the conduct and confessions of the particeps.
   Sed per Curiam.

This is an action of deceit in nature of a conspiracy brought against John Robbins,

and James Robinson is alleged to have been his agent in the fraud. The uniform practice of the Court in similar cases has been, to call upon the plaintiff to show a privity between the defendant and the person coupled with him in the fraud. The Court will decide whether this be sufficiently proved or not. Until it is proved, the confessions or acts of the alleged agent in the fraud cannot be admitted. At present, therefore, the confessions of Robinson cannot be shown to the Jury. Let the plaintiffs proceed to prove the privity., and when shown to the satisfaction of the Court, the most liberal latitude will be allowed in the proof of the conduct and confessions of Robinson as a particeps.

On the trial by the Jury, it appeared in evidence,

That on the 27th of November, 1795, James Robinson, then a bankrupt, was indebted to the plaintiffs 144l. 2s. 11d. New-York currency.

That in October preceding, the defendant, then an, inhabitant of Rutland, observed to Messrs. Willoughby & Miller, that he could procure goods at ten shillings on the pound, if he dared to risk somebody. When requested to explain, he said, after some hesitation, perhaps it is by letting a man have money to establish a credit at the different banks.

That in November, 1795, the defendant and James Robinson, long known to the former as a bankrupt, went to the city of New- York in company. The defendant there told a witness that he had concluded to let Robinson have 1,500 dollars, and that he was to have 100l. as a premium, and double the amount in goods as his security.

On the 27th of November, 1795, Robinson, by advancing to the plaintiffs 320l. New- York currency, extinguished the debt of 144l. 11s. 2d. then due, and the balance was passed to his credit on amount of goods and merchandise sold and delivered to him at that time, the invoice of which footed at 610l. 11s. 10d. and after deducting the credit, balanced in favour of the plaintiffs, 434l. 4s. 9d.

The goods were packed, and the bales marked J. R. Before they were removed, a bill of sale from Robinson to the defendant was endorsed upon the invoice. When the bales were shipped, they were delivered to the defendant, who with chalk, to the initials of J. R. added obbins. They were conveyed by the defendant to Clarendon, Rutland County, and exposed for sale in a store occupied by Robinson ostensibly as his property ; but the defendant officiated as his clerk.

A dispute soon happened between Robinson and the defendant on account of the former paying sundry debts from these, goods. In their altercation the defendant stated the contract between them, viz. "that he and his horses were to be at the service of Robinson from October, 1795, to the May following; that he was to receive 100l. lawful money, and to have goods pledged for his security; that he had advanced 1,500 dollars; and they had further agreed that the goods purchased by Robinson in New-York from the plaintiffs and others, amounting in value, at the New York prices, to upwards of 6,000 dollars, should be pledged with him; conditioned, that if Robinson, by the 20th of May, 1796, paid the 100l. and repaid the 1,500 dollars, with all expenses and incidental charges, he was to surrender his lien on the goods ; otherwise they were to become his absolute property.” Robinson did not deny the contract, but complained that it was a hard bargain. An accommodation then took place. The defendant gave Robinson 500 dollars, who relinquished all claim on the goods. The defendant took them into possession, and converted them to his own use. Robinson the next day absconded the State.

The only points in defence were,

That as the plaintiffs, during the whole transaction, never had any view or even knowledge of the existence of the defendant, it could not be intended that they parted with their property through any reliance upon him.

That the defendant’s loaning money to James Robinson, to buttress his declining credit, so far from being a fraudulent, was a lawful and meritorious act; that this was frequently done by the fairest merchants, and often operated a substantial benefit to creditors by saving a failing trader from bankruptcy. In support of this the defendant’s counsel cited 2 Burr. Rep. p. 933. Foxcraft et al. Assignees of Satterthwaite, bankrupt, v. Devonshire et al. wherein Lord Mansfield, in delivering the opinion of the Court of King’s Bench, observed: “ A notion, 'that lending money to traders, knowing them to be in dubious, tottering or distressed circumstances, upon mortgages or liens, is fraudulent, and consequently the contract void in case a bankruptcy ensues,’ would throw all mercantile dealing into inextricable confusion. Men lend their money to traders upon mortgages or consignment of goods, because they suspect their circumstances, and will not run the risk of their general credit.”

Tyler, Assistant Judge, in charge to the Jury, laid it down as settled, that where A. and B. combine to defraud C. of property, and it is carried into effect, though A. should keep concealed from C. during the whole transaction, and B. should be the active partner in the conspiracy, yet the fraudulent combination being proved to have existed between them, A. shall be charged in damages; for it may appear that the summa ars of the covin was to secret A. from the knowledge of C. An adverse doctrine would lead to the conclusion, that the grossest fraud might be practised and fully proved in our courts of justice, and the law be found inadequate to relieve. But the arm of the law is not shortened, that it cannot save, and courts and jurors will with eagle eyes trace fraud through all its secret and crooked paths, and render both the agent who appears, and the prime mover who plots in darkness, amenable.

The case cited from Burrow, addressed to the Court, but read in presence of the Jury, he declared to be not in point.

The defendants in that ease had honoured certain bills and drafts made upon them by Satterthwaite. Afterwards, effects of this bankrupt came into their possession by his assignment, which they sold and converted into money; and the question was, whether this money should become the trust property of his assignees, or go to remunerate the defendants for the bills and drafts they had accepted and paid. It. appears, that these bills and drafts were accepted and paid by the defendants before the commission of bankruptcy, which was in August, 1752.

The defendants were to receive merely the amount of what they had advanced with the customary commissions. Some secret acts of bankruptcy committed by Satterthwaite, about Christmas, 1751, were attempted to be proved by the plaintiffs, which “ overreached the consignment of the goods, the sale of them, the receipt of the moneys for which they were sold, and likewise the time when the defendants advanced the moneys to the use and order of the bankrupt;" and the fraud attempted to be charged upon the defendants was this, that they were privy to Satterthwaite's insolvency, at the time when they advanced the money to discharge his bills.” But all this was done away by counter proof; it appearing, that if any of these secret acts of bankruptcy existed, they were done away by his again appearing publicly as usual, and continuing so to do, until August, 1752, when he stopped payment, and the commission was taken out.

If such secret acts of bankruptcy in Satterthwaite had been proved, and within the knowledge of the defendants, it is probable the decision would have been adverse, and the transaction amounted to a fraud in law, at least; or if the consignment of the goods, the sale of them, the receipt of the moneys for which they were sold, and likewise the time when the defendants advanced the moneys to the use and order of the bankrupt, had all been subsequent to the taking out of the commission of bankruptcy, the question must have turned upon the validity of payment, under the act of 19 Geo. II. c. 32. without noticing several other points mooted by the learned counsel. The question decided in that cause was simply, whether payment of bills to support the credit of a declining trader, without notice of bankruptcy, be fraudulent.

We should not consider it so here, for the law should always aid rather than discountenance the social virtues.

But does the case, or the reason of the decision, apply ? Here is a premeditated fraud in fact, of the grossest nature, alleged.

It is in proof that the defendant Robbins, a few weeks before the plaintiffs vended their merchandise to Robinson, declared his intention of defrauding somebody. He said he could obtain goods at half their real value. He detailed his iniquitous scheme, which was by loaning money to some one who might thereby obtain a credit. He did not indeed say he intended to loan to a bankrupt, but he described him as an unresponsible man ; for he added, “ if he could venture to trust somebody.”

He had been long and familiarly acquainted with Robinson, and knew he was bankrupt. He accompanied him to New York. He advanced him 1,500 dollars, part of which money it is not contended was paid by Robinson to the plaintiffs, and was the inducement for them to give him a credit to a large amount. Before the goods purchased by Robinson were removed from the plaintiff’s store, this defendant took a bill of sale of the whole invoice. When the property is shipped, the defendant takes it into his possession, and marks his name upon the packages. Under his care the goods were transported to Clarendon. They were, it is true, exposed to sale in the store occupied by Robinson; but the defendant officiated as clerk, and evidenced his interest in and control over the property, by restraining his ostensible principal from applying any part of them to the payment of his debts. A dispute happened, and terminated in a final accommodation, by which Robinson, in consideration of 500 dollars, relinquished his claim to the whole merchandise in the store, which included not only the goods purchased of the plaintiffs, but other goods to the amount of more than. 6,000 dollars, obtained by Robinson in the same mode and time from others. The defendant took possession of the whole, and Robinson immediately absconded.

Darius Chipman and John Cook, for plaintiffs.

Cephas Smith, Chauncey Langdon, and Smith & Prentice, for defendant.

Does the case read from the English authority apply? By advancing money to James Robinson, was the defendant engaged in the laudable business of loaning his money to support the credit of a declining trader without notice of any act of bankruptcy ?

Verdict for the plaintiffs, 1,556 dols. 58 cts.  