
    MEEKER'S ASS. vs. WILLIAMSON & AL. SYND.
    
    East’n District.
    June, 1820.
    A party does not become a legal witness, by depositing a sum of money, sufficient for the payment of the cost to which he may be liable.
    
    A defendant may, in good faith, abandon apparent good grounds of defence.
    Appeal, from the court of the first district,
    This case was remanded by this court, at January term last, for a trial by jury. 7 Martin, 315.
    The parties submitted the following issues to the jury :
    1. The plaintiffs have not proven themselves to be the assignees of W. P. Meeker, or any assignment whatever of the claims, which the said Meeker might have on Williamson and Patton, or Meeker, Williamson and Patton, or either of them, was ever executed or made by and for the said W. P. Meeker to the plaintiff.
    
      2. No assignment of any right or claim of W. P Meeker and S. Denman, trading under the firm of W. P. Meeker & co., upon the house of Meeker, Williamson & Patton, appear to have been executed, by the said W. P. Meeker, or S. Denman.
    3. The plaintiff brought three several suits, in the late superior court of the territory of Orleans, against Meeker, Williamson & Patton, and such proceedings were had therein, as appear by the records hereto annexed.
    4. At the time of the institution of said suits, Meeker, Williamson & Patton, were not indebted to the plaintiffs, or if indebted, were so only in a small part of the sum, for which they obtained judgment.
    5. At the time of the institution of said suits, the defendants therein were in insolvent circumstances, and continued so, until the time they made a surrender of their property, and this circumstance was known to the agents of the plaintiffs in the said suits.
    6. The plaintiffs in the said suit, in part satisfaction of the said judgment, received from the defendants a conveyance of property, which was set aside by a decree of the superior court as fraudulent.
    7. Williamson & Patton, in the three several suits, brought against them by the plaintiffs, had a good and legal defence, which was voluntarily withdrawn, and in consequence thereof, the plaintiffs obtained the judgment on which they now claim, to the prejudice of the other creditors, if it be maintained.
    At the trial, the defendants offered as a witness, P. V. Ogden, a partner of the house of Harrod & Ogdens, who had executed to George M. Ogden, an assignment of all his rights, claims and demands whatsoever, in his individual capacity, or as a partner of said firm, on the assignees or the estate of Meeker, Williamson & Patton, and Williamson & Patton, or either of them. He further offered to deposit $100, or any other sum, which the court might deem reasonable, for the discharge of any costs, which he might be liable to pay. The plaintiffs opposed the admission of the offered witness, and the court, sustained the exception, whereupon the defendants’ counsel took his bill of exceptions.
    In the charge to the jury, the court observed on the first fact, that the record was sufficient proof in law, that the plaintiff's were assignees of W. P. Meeker.
    On the second, that the record was sufficient legal evidence, that there was no assignment from W. P. Meeker & S. Denman, to the plaintiffs, unless the jury should he satisfied, that there was collusion or fraud, in the voluntary withdrawal of the peremptory exceptions.
    On the fourth, that the sum due to the plaintiffs was settled by the judgment, as a res judicata, and could not now be inquired into, unless there was evidence of collusion or fraud.
    Or the last, that the peremptory exceptions made by Meeker, Williamson & Patton, were legal exceptions, if the facts stated therein were true ; but, as they had been withdrawn, they were not to be considered, as exceptions at all ; unless they were withdrawn thro’ fraud or collusion.
    The defendants’ counsel objected to these parts of the charge and prayed the court to direct the jury simply, on the last fact, that the exception made by Meeker, Williamson & Patton, to the suits of the plaintiffs were legal exceptions, under all the circumstances appearing on the record ; but the court declined doing so.
    Whereupon the defendants’ counsel took a bill of exceptions to the charge of the court.
    The jury found that 1st. : That the plaintiffs have proved themselves the assignees of W. P. Meeker, and that an assignment of the claims which the said Meeker might have on Williamson and Patton, or Meeker, Williamson and Patton, or either of them, was, therefore, made by him to the plaintiffs.
    An assignment of the claims of W. P. Meeker & co. and S. Denman, trading under the firm of W. P. Meeker & co. upon the house of Meeker, Williamson and Patton, has been executed by said W. P. Meeker and S. Denman, in favor of the plaintiffs, inasmuch as no exception was effectually interposed to the suit, until a judgment was previously obtained.
    3. The third issue is found agreeably to the record of the proceedings had in the previous suits.
    4. Meeker, Williamson & Patton were indebted to the plaintiffs, at the time of instituting the said suits, in the full sum of $49711.92, for which judgment was obtained.
    
      5. The jury are unable to judge positively of the situation of the affairs of Meeker, Williamson & Patton, at the time of instituting these suits ; but have had no evidence of their being in insolvent circumstances.
    6. The fact admitted.
    7. Meeker, Williamson & Patton had a good and legal defence, had it been proven ; but it having been withdrawn, without any proof, the jury do not consider that it was any defence at all.
    The court made the rule absolute and ordered the defendants to pay the plaintiffs $17,820, the proceeds of the property, referred to in the rule ; it appearing by the answer of the syndics, and it being admitted by the plaintiffs, that the syndics have made the transfer and raised the mortgage on the property ; and the syndics not having shewn any good cause why the monies proceeding from the sale of said property should not be paid, as required, and the court being satisfied, from the facts and exhibits in the suit, that the plaintiffs are entitled thereto.
    The defendants appealed.
   Derbigny, J.

delivered the opinion of the court. This case comes again before this court upon bills of exceptions to several opinions of the judge of the first district, on points which arose since the cause was remanded for the last time.

The first is taken against his refusal to admit the testimony of Peter V. Ogden, one of the parties to this suit, who, to make himself a witness, executed a transfer of his rights and claims, to his partner in trade, and offered to deposit any sum of money, which might be deemed sufficient for the payment of the costs, in case he should be decreed to pay any. We think that the district judge was right in considering P. V. Ogden as still incompetent to be a witness, after this transfer and tender.

The second bill of exceptions contains the several objections, which the appellants made to the charge, addressed by the judge to the jury on some of the questions of fact submitted to them.

On the first fact, we are of opinion that the judge charged the jury correctly, when he told them that the record was sufficient legal evidence, that the plaintiffs were assignees of Wm. P. Meeker. He might, indeed, well have refused to suffer that fact to go to the jury, because these exceptions to the persons of the plaintiffs, or pleas in abatement, were inadmissible at this stage of the cause, after the charac of the plaintiffs had been recognised by the creditors of Williamson and Patton, in a variety of ways, since the beginning of these proceedings.

On the second fact, we deem if useless to examine whether the judge was right or wrong, in his charge to the jury, because we consider that fact, as unimportant in this controversy, where the title, on which the present claim is founded, is a judgment rendered in favor of the assignees of Wm. P. Meeker.

On the fourth question, we also think that the judge’s charge to the jury was right ; because, no third person can disturb a judgment rendered between two parties, unless he can show that such judgment was obtained by collusion, to defraud other persons.

Duncan for the plaintiffs, Livingston for the defendants.

On the seventh, we are also of opinion that the district judge was correct in saying that fraud and collusion were necessary to be proved, in the withdrawal of the exceptions there alluded to ; because a defendant may in very good faith abandon some apparently good grounds of defence, and it is only the ill faith of the parties that gives a third person a right to attack the judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  