
    Benjamin Curtis, et al., vs. Robert Moore, et al., Garnishees of R. McEldowney & Co.
    Evidence: Fraud: Practice. — In questions of fraud, any fact however slight, if at all relevant to the issue, will he admitted in evidence, though the circumstances of the ease when combined must be so strong as to satisfy the jury of the fact sought to be established; and although fraud is never to he presumed, yet it is not necessary to prove it by positive and direct testimony.
    Where it is necessary in the ocurso of a cause to inquire into the nature of a particular act, and the intention of the person who did the act, proof of what was said by such person at the time of doing such act, is admissible for the purpose of showing its true character.
    ^Practice: — Where a mass of evidence is offered, a part of which is admissible, and the whole is objected to, it is error to exclude the whole.
    Appeal from tbe Superior Court of Baltimore City :
    The appellant in this cause sued out an attachment on warrant against the goods, &o., of Robert McEldowney, which was laid in the hands of Robert Moore and Charles Moore, partners, trading under the firm of Robert Moore and Brother. The attachment was founded on three notes, dated respectively August 23rd, 1856, September 23rd, 1856, and October 23rd, 1856, each made by R. McEldowney & Co., for tbe sum of $1012.27, payable eight months after date to their own order, for merchandize purchased from the plaintiffs, and endorsed by the said R. McEldowney & Co. The garnishees appeared and pleaded nulla bona. The evidence in the cause, and the only question arising thereon, are set forth in the opinion of this Court. The verdict of the jury was in favor of the garnishees, and the plaintiffs appealed.
    The cause was argued before Bartol, Goldsborougii and Cochran, J.
    
      Levin Gale, for the appellants :
    1st. If any portion of the proposed testimony was admissible, the Court erred in rejecting the whole. Budd vs. 
      
      Broolceet al., 3 Gill, 220. Carroll’s Lessee vs. Granite Man. Co., 11 Md. Bep., 399.
    2nd. That portion of the rejected testimony referring to McEldowney’s going to New York and making purchases and failing shortly after his return, was undoubtedly competent evidence to establish fraud.
    3rd. The declarations of McEldowney prior to the mortgage to Moore were competent. Connelly vs. Lord Howe, 5 Vesey, 700. Coale vs. Harrington-, 7 H. & J., 147. Bobinettvs. Wilson, 8 Gill, 179. McDowell vs. Goldsmith, § Md. Bep., 319. 'Ford vs. Ellioit, 4 Excheq. Bep., 78. Harshaw vs. Moore, 12 Iredell, 247.
    4th. The declarations after the execution of the mortgage, and while McEldowney was in possession of the goods, were competent to show the character of his possession, as holding them for the benefit of the Moores. Willies vs. Farley, 14 Eng. C. L. Bep. 367.
    5th. The whole of the testimony was competent, because of the concert and connection between the Moores and the McEldowneys, as shown by the witness and by the recitals in the mortgage. 1 Greenleaf’s Ev., 139. Davis vs. Calvert, et al., 5 G. 6/ J., 269. Waters vs. Dashiell, 1 Md. Bep., 474. Batcliffe vs. Bangston, 18 Md. Bep., 383. 7 Barb. Bup. Ct. B., 470.
    
      P. McLaughlin, for the appellees :
    The ruling of the Court below was proper for two reasons :
    1st. Because the evidence proposed to be elicited was hearsay. 1 Btarh. on Ev., 42.
    2nd. Because the party whose declarations were offered, was interested against the garnishees*, as a verdict against the garnishees would, if paid, diminish his liabilities without any recourse to the garnishees against him. .
    Again, the evidence should have been rejected, if for no other reason, because it was irrelevant to the issue.
    The plaintiffs were not entitled to any remedy or to any damages, because of a supposed fraud upon tlieir neighbors. Marshall vs. Haney, 8 Gill, 251, 258.
    An attachment can only affect the property or credit of the defendants. It cannot bo used for the adjusiment of claims nor to remedy wrongs as between the plaintiffs and garnishees. Acts 1715, ch. 40, sec. 3; 1795, eh. 56, sec. 1.
    In no aspect of the case, even if the plaintiffs had proved all they proposed to prove, have they entitled themselves to a verdict and judgment against the garnishees. .Lee, ei al., vs. Tinges, 7 Mcl. Bep., 216, 227, 230. Barr vs. Perry, S Gill, 313, 318, 321.
   Cochean, J.,

delivered the opinion of this Court:

The exception contained in this record presents the single question, whether the appellants, as attaching creditors of R. McEldowney & Co., were entitled to give in evidence certain declarations made by Robert McEldowney, a member of that firm, for the purpose of allowing a collusive and fraudulent possession of their property and assetts by the appellees.

The evidence which the Court refused to admit, was that of James Henderson, offerer! by the appellants to show, ■that Robert McEldowney, before going to New York in the fall of 1856 to purchase goods, said to the witness, when neither of the appellees were present, that they were insolvent and expected to fail, and that the appellees advised them to fail full-handed; that McEldowney went to New York, made large purchases, and that the firm failed shortly after his return; that McEldowney then said to the witness, that he must cease to be cashier, as every thing was in the hands of the appellees.

This testimony had been preceded by evidence showing that the McEldowneys failed on the 9th of December 1856, with upwards of 8100,000 worth of stock on hand, and that immediately after their failure, the appellees took and retained possession of the stock, until about the 9th of February 1857, during which time it was reduced to an amount less than $50,000. A mortgage made to the appellees on the 8th of December 1856, and a deed of trust made to Henry G-. Rice on the 9th of February 1851, by the McEldowneys, were also offered in evidence.

The fact sought to be established by the appellants, was the fraudulent possession,.by the appellees, of property and assetts of the firm of R. McEldowney & Co., and the question presented by the exception is, whether the rejected evidence, or any part of it, was admissible for that purpose. We are aware of no rule under which the declaration of McEldowney to the witness, that he was advised by the appellees to fail full-handed, could be considered admissible evidence of the fact that such advice was given, but we are satisfied that the remaining portion of the testimony, taken in connection with the other evidence in tho case, tended to show collusion between the McEldowneys and the appellees, and that it ought to have been permitted to go to the jury as evidence of that fact. “In questions of fraud, any fact, however slight, if at all relevant to the issue, will be admitted in evidence, though the circumstances when combined must be so strong as to satisfy tho jury of the fact sought to be established;” and although “fraud is never to be presumed, yet it is not necessary to prove it by- positive .and direct testimony.” Davis vs. Calvert, 5 G. & J., 269. The question as to the admissibility of such evidence as this exception contains, was considered in the cases of Kalb vs. Whitely, 3 G. & J., 188, and McDowell vs. Goldsmith, 6 Md. Rep., 329, in which it was held, “that where it is necessary in the course of a cause to enquire into the nature of a particular act, and the intention of the persons who did the act, proof of what the person said at the time of doing it, is admissible for the purpose of showing its true character;” — “and that where the evidence is offered as a mere fact, which is connected with the matter in dispute, and not with the view to affect the party otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it was a transaction between others, yet as a mere fact, and part of the res gestee, it is evidence.” And where a mass of evidence is offered, a part of which is admissible and the whole is objected to, it is error to exclude the whole. Budd vs. Brooke, 3 Gill, 198; Carroll vs. Granite Man. Co., 11 Md. Rep., 399; Waters vs. Dashiel, 1 Md., Rep., 455.

(Decided June 5th, 1863.)

Being of opinion that a part of the evidence rejected by the Court was admissible, we shall reverse the judgment, and award a procedendo.

Judgment reversed, and procedendo awarded.  