
    John Carter versus John A. Gregory.
    A subsequent attaching creditor being admitted, under the statute of 1823, c. 142, to defend against the first attaching creditor, is not confined to the grounds of defence of which the debtor might have availed himself, the object of the statute being to prevent collusion between the first attacher and the debtor.
    The general rule, that a party cannot give evidence of his declarations in his own favor, applies to declarations made by the plaintiff in an action which is defended, pursuant to the statute, by creditors of the defendant.
    A note was made by a failing debtor, on which the payee immediately made an attachment of the debtor’s property. Part of the alleged consideration of the note was an acceptance made by the payee, of an order drawn on him by the debtor in favor of another creditor, A subsequent attaching creditor being admitted, under the statute, to defend, it was held, that the plaintiff could not introduce evidence of his own declarations made on the day when the note was given, to show that the acceptance was made before the attachment.
    Assumpsit to recover the amount of a promissory note made by the defendant to the plaintiff on the 14th of April, 1828, for 1561 dollars and 51 cents, payable on demand.
    At the trial it appeáred, that the plaintiff, on the 14th day of April, commenced an action upon the note, and between 3 and 4 o’clock P. M. attached the defendant’s stock in trade. John M. Peck, a subsequent attaching creditor, was allowed, under St. 1823, c. 142, to defend the action.
    Two creditors, Bates and Brown, whose demands were not due, likewise made attachments on the same property on the 14th of April ; and on the next day they were informed, that the plaintiff’s attachment was intended to protect them. They then received from Gregory two orders drawn by him upon the plaintiff, which had been-previously accepted, one for 530 dollars and 39 cents, the other for 571 dollars and 21 cents, both dated on the 14th of April, and payable in six months ; and upon receiving these drafts, Bates and Brown gave up to Gregory the notes which they held against him. The sum due to the plaintiff, independent of these drafts, was 761 dollars and 51 cents ; and he produced evidence to show that the excess of these three sums above the amount of the note in suit, was secured by the transfer of certain promissory notes.
    The plaintiff, in order to prove that the acceptances were made before his attachment, proposed to ask Bates, who was a witness, whether the plaintiff did not inform him on the 14th of April, that his (Bates’s) demand was provided for, and that-the plaintiff had agreed to pay it. The counsel for Peck ob-, jected, on the ground that the declaration of the plaintiff himself could not be given in evidence. Wilde J. ruled that the inquiry could not be made ; and that the declarations of the plaintiff on the 14th or at any other time, not having been made in the presence of Gregory or Peck, could not be given in evidence in his favor.
    It was contended on the part of Peck, that the note sued included the sum of 800 dollars which was not due to the plaintiff, and which was to be taken out of the proceeds of the stock and to be held in trust for the use of Gregory ; and that the affair of the drafts was not thought of until after the other creditors had expressed dissatisfaction in regard to the amount of the plaintiff’s demand.
    The plaintiff contended that Peck could make no other defence than Gregory the defendant could himself make, and that Gregory could make no defence to this action.
    
      But the jury were instructed, that if they believed that no agreement was made by the plaintiff to pay Bates and Brown, before the note in suit was given, and that the note was given for 800 dollars more than was due to the plaintiff when it was made, they should deduct 800 dollars from the note and give a verdict for the balance ; or if they believed that nothing was due to the plaintiff, that they should find for the defendant.
    A verdict was returned for 796 dollars, 54 cents, being the sum of 761 dollars 51 cents, and interest.
    
      March 36tf
    on a motion for a new trial, insisted that evidence; of the plaintiff’s declarations ought to have been received to lebut the presumption of fraudulent connivance between him and Gregory. They were part of the res gestee. 1 Stark. Ev. 39, 47, 148. The counsel of Peck maintain, that the affair of the drafts was an afterthought ; the declarations of the plaintiff would show that this was not the case. Those declarations were not offered as evidence of what they assert, but as facts. Bartlett v. Delprat, 4 Mass. R. 702; Stark. Ev. ubi supr. Gregory intended to prefer Carter, Brown and Bates ; which he had a right to do ; it was only providing for the payment of bona fide debts.
    Peck could make no defence which Gregory might not have made. Strong v. Wheeler, 5 Pick. 410. If he could, then by interposing he might prevent the plaintiff from obtaining the judgment to which he is entitled against the defendant upon the contract existing between them ; and the legislature are not empowered to make a law having this effect.
    
      April 2d
    
    
      Fletcher and Morse,
    
    
      Curtis, on the other side, referred, on the last point, to Mams v. Paige, 7 Pick. 542.
   Parker C. J.

delivered the opinion of the Court. The position taken by the plaintiff’s counsel, that the defence set up by Peck could not be supported, because Gregory, the original defendant, could not have defended himself on the same ground, cannot he maintained. The object of the statute, under which this defence was made, is avowedly to prevent fraud in the attachment of real or personal estate ; and the provisions of the statute are founded upon a supposed collusion between parties to the suit, to defraud creditors. To limit the defence which the subsequent attaching creditor is authorized to make, to such facts as the original defendant might himself aver. would be to impair in a great degree the use of the statute, as by the legislature. In cases of fraud and collusion, the defendant cannot avoid his contract by setting up his fraud in defence against it. It is only when a contract is avoided by statute, as in the case of usury or gaming, or when the consideration is illegal, that this can be done. Mere want of consideration, arising from a fraudulent bargain between the promisor and promisee, not in violation of any positive law, but for the purpose of defrauding others, cannot, we think, be shown in evidence by a party to the fraud, in defence of an action upon his contract. And it is such contracts that the legislature in tended should be inquired into by third persons, whose rights are affected. The words “ in like manner,” in the statute, do not limit the defence, but only regulate the mode of making it. And nothing further than this can be drawn from the opinion of the Court, in the case of Strong v. Wheeler, 5 Pick. 410, [2d edit. 412, note 1.] Other expressions in the opinion, which are thought to limit the grounds of defence to such only as the original defendant might have used, ought to be referred to the subject then in discussion, which was merely the mode of evidence, by which a fact was to be proved.

It is said then, that the plaintiff is entitled to judgment, because he produces a note which the original defendant could not gainsay. If this is true, the statute is of no use ; for its object is to admit others to a defence, which grows out of a collusive agreement between the plaintiff and the original defendant. Suppose the note to be fabricated for the sole purpose of abstracting the property of the promisor from his creditors, shall not this be shown ? And yet the promisor himself could not show it. Or even suppose the note to be given for a valuable consideration, but that the sole purpose of the attachment was to defeat other creditors and to hold the property to the use of the debtor, shall not this be shown ? And yet the promisor could not show it.

But it is said, that if the legislature so intended, their act is without authority, because the plaintiff, as between himself and the debtor, is entitled to a judgment. The same may be said in all cases of default, or confessions of judgment; and the ar gument will go further ; for after judgment the plaintiff is entitled to execution and the fruits of it; and yet, even at comrnon law, a subsequently attaching creditor may defeat the first attachment, by showing that the judgment was collusively obtained.

The statute has only provided a mode of preventing collusive judgments, instead of leaving the injured party to the re,ief before existing at common law ; which was defective, because its final success depended upon the ability of the wrongdoer to respond in damages. The statute arrests the evil in the beginning, and rescues the property itself from the unlawful appropriation intended. Surely this was a just and proper subject of legislation ; and the parties interested all have a hearing in court, and may maintain their several rights.

In regard to the declarations of the plaintiff, respecting the time when he accepted the drafts, which he alleges form part of the consideration of the note, we have not been persuaded by the very ingenious argument of the plaintiff’s counsel, that they were not properly excluded.

The declarations of a party in his own favor, by the general rule, are inadmissible. A man cannot testify in his own cause; much less can his declarations not under oath be admitted. The exception to this rule is, that when declarations accompany an act and have a tendency to show the motive and intention of the act, they are sometimes admissible. Such was the case cited of the bankrupt, who having committed an act equivocal in its nature, his declaration made at the time showing his intention, was admitted. This however was a declaration against himself strictly, as bankruptcies are supposed to be in invitum. There are however cases of declarations, or entries, operating in favor of the party making them, which are admissible ; but, in all instances, they relate to, or accompany some act; and therefore are a part of the res gesta.

The declarations excluded in this case were not of that character, but were mere naked assertions of a fact, which do not come within any exception to the general rule.

It is said, that the declaration so made is a fact. That is true, but the fact is also a declaration only, made by a party to support his own interest. Now it is true that, at the time of making the declaration, it probably had no reference to any controversy; yet, if it be admitted that such declarations are good evidence, we shall soon find cases of declarations and assertions of a fact as having happened, with a view to support what may be afterwards done, when it is too late to have its effect, and when it may become necessary to antedate, if we may use the expression, the fact in controversy. I cannot see that any thing beyond this is advanced by Starkie, and he cites no authority for some of his positions.

Judgment according to verdict. 
      
       See Lambert v. Craig, 12 Pick. 199. The law upon this head has been changed by the Revised Stat. c. 90, § 87, 88.
     