
    Hale vs. Smith.
    Where AT had conveyed goods to C, who afterwards sold them to H; it was held, in a suit between Hand the creditors of M, who attached the'goods as his,— that the declarations of C, made two months before the sale from M to him, were admissible in evidence to impeach the consideration of the former conveyance.
    The vendor of goods as his own, being therefore bound to warrant the title, is inad - missible as a witness for his vendee, in an action touching the title of the same goods; being directly interested to establish the title, for the purpose of protecting himself from all accountability on his implied warranty.
    The account-books of an interested witness are inadmissible evidence.
    This was an action of replevin of five horses and certain furniture, chair and cabinet stock, Sic.; brought by John Hale against James Smith, a deputy sheriff; who pleaded property in one March ; against whom he held certain precepts, on which he had attached the property in question. The issue was upon the property in the plaintiff.
    At the trial before Parris J. the plaintiff read in evidence a bill of sale dated Jan. 21, 1829, by which March conveyed the property in question to John B. Cross and John K. Hale; and a further conveyance on the back of the same instrument, dated on the following day, by which these vendees did “ grant, assign and set over” the same property to the plaintiff.
    The defendant offered evidence tending to prove that the conveyance by March to Cross and John K. Hale was without consideration, and not bona fide, but made for the purpose of hindering, delaying and defrauding the creditors of March.
    
    It appeared that Cross & Hale, the vendees of March, were commission merchants and auctioneers in copartnership ; that March was a manufacturer of household furniture; that for some months previous to Jan. 21, 1829, he had consigned to them for sale large quantities of furniture, and had received from them in return, at various times, since May 1828, cash and supplies for his establishment. The plaintiff contended that a balance of about eight hundred dol-Jars was doe from March to the firm of Cross & Hale, at the time of the original conveyance to them, and formed part of the consideration. The defendant insisted that nothing was due, and that the conveyance was collusive,- to defeat creditors. And for the purpose: of showing that .March was not so .indebted to Cross & Hale, the defendant, in addition to other evidence, offered to prove the declarations of Cross, made in November 1828, in a conversation with the witness, in which he stated the amount of property they had then received of March, observing that they had sent some to New York for sale, and expected soon to be in funds for him to the amount of four hundred dollars ; and that he was desirous that the whole proceeds of March’s factory should be turned into their establishment. To the admission of this testimony the plaintiff objected; but the judge permitted it to go to the jury.
    
    To rebut the testimony offered by the defendant, and to prove the validity of the sale by March to Cross & Hale, the plaintiff offered Cross as a witness ; but the judge ruled that he was inadmissible. The plaintiff then offered the books of Cross & Hale for the same purpose ; but these also the judge rejected ; it appearing that checks had been given by March, from time to time as be happened to be in town, for all their advancements ; which checks were produced at the trial, and were said by the plaintiffs to correspond with the entries on the books.
    The jury returned a verdict for the defendant; which ..was taken subject to the opinion of the court upon the admissibility of the declarations of Cross, and of the testimony rejected.
    Grrmtlw/’and Neal, for the plaintiff,
    contended that the declarations us Cr-'-ss should not have been received, because he himself was a '„*ODtp.;ic>)t witness. They were not the declarations of the fraudulent grantor, nor relative to any conveyance made, or to be made. Yi d’o contrary they were uttered months before any conveyance 0.1;,pears to have been contemplated by the parties ; and therefore are n.á within the principle of Bridge v. Eggleston, 14 Mass. 245, m hich is thought to go to the verge of settled rules. Nor do they p to impeach the conveyance to the plaintiff; but are offered to show that a prior sale, to which he was not a party, and of which he does not appear to have been conusant, was invalid.
    But Cross himself should have been admitted. The vendor is always a good witness, to affirm or disaffirm a sale by himself, in a suit between third persons. 3 Stark. Ev. 1648, 1659, 1661 ; 4 Taunt. 19 ; 1 Stra. 445 / 5 Johns. Ch. 29, 79. And he was not interested in the event of the suit. The verdict could not be evidence for or against him in another suit. If the plaintiff should fail here, and should sue him on any supposed warranty, the whole case would be open for him to defend ; and if the plaintiff was conusant of any fraud, without proof of which the present defendant cannot succeed, then manifestly Cross would not be liable over, the parties being in pari. But here was no warranty of title by Cross. His conveyance imports no covenant; Stearns, 126 ; for the whole contract is in writing, and no warranty is expressed. Burgess v. Lane, 3 Greenl. 169. And if here is an implied warranty in the one conveyance, there is also in the other, from March; upon which Cross would have his remedy over.
    The books also should have been admitted, as part of the res gesta, to show that the checks were not a subsequent fabrication, as was pretended at the trial.
    
      Longfellow, for the defendant,
    cited Bridge v. Eggleston, 14 Mass. 245.
   MeLlen C. J.

delivered the opinion of the Court at the adjournment in August following.

According to the facts reported, the only question was whether the sale from March to Cross and John K. Hale was fair and honest, and for a valuable consideration, or a fraudulent one, made with intent to defraud the creditors of March. If that sale was valid, nothing appears to impeach the second sale, from Cross and J. K. Hale to the plaintiff; though, as the jury have returned their verdict in favor of the defendant, they must have found the first sales fraudulent, and the plaintiff conusant of the fraud. If the decisions: of the judge were correct as to the admission of proof of Cross’s\ declarations, and also as to the rejection of Cross, when offered as a witness, judgment is to be rendered on the verdict.

On the whole we think the proof of Cross’s declarations was properly admitted, in connexion with other evidence, as tending to show that no valuable consideration was paid by Cross and J. K. Stale to March, for the property in question. In the case before us, Cross appears in the character of a vendee and a vendor of this property,; and the declarations proved were made a short time before the purchase from March. It is true that in Bridge v. Eggleston, the declarations given in evidence were those of a grantor before, the sale, to show the fraudulent intent with which it was made; though it seemed he might have been admitted as a witness, This was so decided, on the ground that the law would not compel a creditor, in such circumstances, to resort to the testimony of a party to the fraud, for the purpose of proving it. It is evident that the above case differs from the present, in which the declarations proved were those of a vendee respecting facts having a tendency to show the nature, weakness and defects of his own title. It seems stronger than the case of Bridge v. Eggleston; for if a vendee’s title may he affected, and perhaps defeated, by the declarations of a vendor before or at the time of sale, it would appear at least equally clear that it may be impaired or defeated by his own declarations ; especially when such vendee is the person under whom the plaintiff claims, and who conveyed the property in dispute to him with warranty. In Jackson v. Bard, 4 Johns. 230, it appeared that one Smith purchased the land in dispute of Dickenson, and afterwards conveyed the same to Einzey, who conveyed to the tenant; and the court decided that the declarations of Smith, respecting his title and the execution of his title deed, made before his conveyance to Einzey, and while he himself was in possession, were admissible in evidence against the tenant. Thompson J. says, “ These declarations would have been good against Smith, and are also competent evidence against all who claim under him. This principle has been repeatedly recognized, both in our own and the English courts.’5 And he cites 1 Johns. 343; 1 Esp. Ca. 458; and 2D. & E. 53. In Binney v. Proprietors of common lands in Mull, 5 Pick, 503, the declarations of the ancestor were admitted to prove his liability to maintain a certain fence, and thus to prove the liability of the heir to maintain it. So in Ivat v. Finch & al. 1 Taunt. 141, the question was whether Mrs. Watson was the owner of certain personal property, (which the defendant had seized for the lord of the manor,) at the time of her death. The plaintiff was permitted to prove by her declarations that she had transferred it to the plaintiff. The court say, “ The admission was against her interest, and ought to be received, because the right of the lord of the manor depended on her title.” See als.o Davis v. Spooner, 3 Pick. 284.

The next Inquiry is whether' Cross was properly rejected. He and J. K. Hale were the vendors in the sale to the plaintiff; and it is a well settled principle of law that where a person sells a personal chattel as his own property, he is understood to warrant the title. 1 Ld. Raym. 593; 1 Salk. 210; 2 Kent’s Com. 574; 3 Stark. Ev: 1661, 1662. Nothing appears in the case showing any defect in the plaintiff’s title, except the want of title in Cross and J. K. Hale, at the time of their transfer to him. Hence, we perceive, it was an essential pojnt with the plaintiff, on the trial, to establish a title in Cross and J. K. Hale.; and Cross was directly interested to establish it, for the purpose of protecting himself from all accountability on his implied warranty. On this principle he was inadmissible; and, for the same reason, his books also were properly rejected.

Judgment on the verdict,  