
    SUPREME COURT.
    Thomas H. Green and John Green, plaintiffs, agt. Isaac A. Rosa, sheriff of Montgomery county.
    .JMdence— Competency of, in replevin action brought by a vendor against an attaching officer of a fraudulent vendee.
    
    In a replevin action brought by a vendor against an attaching officer of a fraudulent vendee, it is competent to show the fact that, shortly after the purchase, the vendee made a general assignment for the benefit of creditors. The recitals contained in it are not, however competent evidence.
    Iln such a case, the schedule and inventory made by the assignor, subsequent to the assignment and pursuant to the statute, are not admissible evidence. The inventory would not tend, as against the officer, to establish the assignor’s liabilities.
    
      Third Department, General Term,
    
    
      November, 1885.
    
      Before Learned, P. J., Bocees and Landon, JJ.
    
    Appeal from a judgment in favor of plaintiffs, rendered at 'the Montgomery circuit.
    On the trial the plaintiffs, for the puipose of showing the insolvency of the assignor, offered in evidence the general assignment of McGovern, which was admitted against the objection of the defendant. Also, for the same purpose, a schedule and inventoiy made by Thomas F. McGovern, containing the names of his creditors and statement of assets submitted to the-county judge January 28, 1884, and filed in the Montgomery county clerk’s office September 27, 1884, which was admitted against defendant’s objection. The trial of this action was had three days after, September 30, 1884. Plaintiffs’ counsel read from the schedule the amount of indebtedness and amount of-, property, which was objected to by defendant as proof of the value of the assets or liabilities or book accounts, which objection was overruled. Same objection and rulings to plaintiffs’ reading from affidavit to inventory. Objection was also made by defendant to the reading of the assignment to the juiy, on the ground that the recitals in it were not evidence against the defendant The court overruled the objection. Other facts are stated in the opinion of the court
    
      Edward J. Meegan, for appellant
    L It was error to permit the admission in evidence of the general assignment of McGovern, made a month after the sale - of plaintiffs to him, “ for the purpose of showing the insolvency of the assignor.” It was also error to permit the recitals in the assignment to be read to the jury. 1. To succeed, the plaintiffs should show the insolvency of the purchaser at the time of the sale to him. That he became insolvent a month afterwards would not give the plaintiff a right of action (6 South. Law Lev., 481, art.). Insolvency is never presumed, and it was incumbent on the plaintiffs to prove it ( Walrod agt. Ball, 9 Barb., 271). 2. The offer of the plaintiffs was to show the insolvency of McGovern, but when ? At the date of the assignment was manifestly immaterial, as it would not be proof of a fact anterior • to its date, because it could not act retrospectively {Lawson on Pre. Evi, 190). Elustrations are given by Mr. Lawson as fol* lows {pp. 190, 191): 1. A deed is signed in 1854 by Henrietta. C., her maiden name There is evidence that in 1860 she was known as Mis. D. There is no presumption that she was mar- - tied in 1854 (K-skine agt Davis, 25 III., 251). 2. Harriet G. executes a deed in 1854. The question is, whether she was married at the time. There is evidence that she was then over twenty-five years old. This raises no presumption that she was then married (JErslcine agt Davis, 25 III., 251). 3. Depositions out of the state are allowed to be taken before “ any judge or justice of the peace.” A commission is issued to Texas. Depositions are taken before one B., on June 5, 1848, and it is officially certified, on June 29th, that B. is a justice of the peace. There is no presumption from this that B. held that office on June 5th (Bareli agt Lyile, 4 La. Ann., 557). 4. A made a. contract in 1860. In 1864 he was insane. There is no presumption that he was insane in 1860 (Taylor agt Oresswell, 45 Md., 422). 5. M. committed a burglary in 1880, in the house of J. In 1881 M. was tried, and it appeared on the trial that J. was married. This raises no presumption that J. was married at the time of the burglary (Murdock agt Slate, 68 Ala., 567). 6. A bankrupt in 1837 makes a scheduled return of his property. It is afterwards discovered that in 1835 he owned certain property which was not included in the schedule There is no presumption that he owned this property in 1837, for the presrrmption is that he did not commit a fraud (PowelT agt Knox, 6 Ala., 634).
    IL It was also error to admit the alleged schedule and inventory of McGovern in evidence, for the purpose of showing the insolvency of McGovern. It was error likewise to permit the plaintiffs counsel to read from schedule the amount of indebtedness and amount of property, as well to read from the affidavit, attached thereto, and the court erred in its charge relating thereto. 1. The assignment bears date January 9, 1884. The ■ attachments were issued and property seized January 17, 1884. The schedule and inventory bear date and were verified January-26, 1884, and filed September 27, 1884, a few days before the-trial of this casa 2. See authorities under point L 3. After a. debtor has assigned, his acts or declarations are no longer admissible evidenca He is a stranger to the rights of the interested-; parties, and his doings and words are mere hearsay and irrelevant {Minzesheimer agt Mayer, 66 How. Hr., 484; Bump on Fraudulent Conveyances, 587; Bullís agt Montgomery, 50 H. Y., 352; Coyne agt Weaver, 84 id., 386; Matter of Mayer, N. Y. Daily Beg., Feb. 9,1884). Nor is the debtor’s examination in proceedings supplementary to execution admissible ( Wells agt O' Connor, 27 Hun, 426). 4. After the execution and delivery of an assignment in trust for the benefit of creditors, the assignor cannot, by his acts, declarations or admissions, affect the assignment or the rights of his creditors (Ouyler agt McCartney, 40 N. Y, 221). 5. Such acts or declarations are not part of the res gestee {Peck agt Crouse, 46 Barb., 151). 6. Declarations made a week or two after the assignment are not competent evidence for any purpose {Ogden agt Peters, 15 Barb., 560). 7. Schedules of a bankrupt are inadmissible in evidence in a conflict between third persons, and the admission thereof is ground for a new trial {Turner agt Lee, 57 K Y., 667). 8. Nor are the schedules of a bankrupt admissible to show the insolvency of a bankrupt {Tyler agt. Brock, 68 N. Y, 418; see opinion of Rappalo, J., at p. 425, commenting on this evidence). The case of Sibley agt Killom (19 H Y. Week. Dig., 190), only holds the schedules to be admissible against the assignee, because if assignor had not ■ made them the assignee would have been obliged to do so.
    
      T. F. 0 Clary and B. J. Sanson, for respondents.
    1 The deed of assignment was properly received in evi■dence for the purpose of showing the insolvency of the assignor. The paper itself was proper record evidence, and the fact of McGovern making an assignment (of which the paper was the best evidence) within twenty-seven days after representing to plaintiffs that he was “ getting along good in his business,” and -on such representations inducing them to furnish goods on ■credit, were very proper matters to be taken into consideration by the jury, in determining whether McGovern was insolvent December 12,1883 (3 B. S [7th ecL], 2276).
    
      H For the same purpose, the schedule and inventory, filed under the assignment, were competent evidence of McGovern’s insolvency. The objection, that it was not filed in time, is not good The inventory is to be filed by the assignee with the county judge within twenty days after the execution of the assignment, and the county judge shall file the same in the office of the clerk of the county where the assignment is recorded, but the statute does not say when he must do it It was filed before offered in evidence (Laws 1877, chap. 466, sec. 3; amended 1878, chap. 318; Produce Bank agt Morton, 67 N. Y, 203).
    IIL The defendant was not prejudiced by the admission of the assignment and schedule and inventory {Belmont agt Coleman, 1 Bosw., 188; Keator agt Dimmick, 46 Barb., 158).
   Learned, P. J.

The plaintiffs sold goods to one McGovern, about December 12, 1883. Afterwards McGovern made a general assignment to one Hayfinger, January 9,1884. Afterwards creditors of McGovern sued him, and in such suits issued attachments under which the defendant sheriff, &c., by his deputy, seized goods, among them those sold by plaintiffs. Subsequently the plaintiffs commenced this action of replevin, and took the goods; but the same were retaken and retained by giving the usual bond. The ground of plaintiffs’ action, as .stated, is, that the goods were obtained from them by false and fraudulent representations when McGovern was insolvent, with the design of not paying for the sama

To show McGovern’s insolvency at the time of the so-called sale of the goods, plaintiffs gave in evidence his assignment, dated January 9, 1884, and the inventory and schedule dated January 26, 1884, and filed in the county clerk’s office September 27,1884. To this defendant objected. Plaintiffs read therefrom the amount of indebtedness and of property, and also the assignment, to all which defendant objected.

At the conclusion of the charge the defendant asked the ■court to charge that the inventory did not tend to establish. McGovern’s liabilities. The court refused. We think that the-plaintiffs might prove the fact that McGovern made an assignment for the benefit of creditors as tending to show that, at the short time previous, when he bought, he had no • intention of paying, the act of making an assignment, whether he was then really insolvent or not, was a fact which might have some influence in deciding what his intentions were when he bought, just as if he had sold all his property to any other person. But. McGovern’s statements in that assignment were not, and still less were the contents of the inventory and schedules, evidence against the defendant of the matters therein contained. These were mere statements made by McGovern out of court, and on the 29th day of January that on such a day, the 9th of January he owed so much and had so much property. Neither plaintiffs nor defendant claimed under the assignment (Tyler agt. Brook, 68 N. Y., 418; Turner agt. Lee, 57 id., 667).

The evidence of fraud in this case is this: plaintiffs asked McGovern how he was getting along. He said he was getting along good; all right He testifies that at that time he knew he was insolvent, owing $3,600 and having $1,900, and in a month’s time he failed. He testifies that he had no intent to defraud plaintiffs when he made the purchase. Of course the question is whether the purchase was made with the design not to pay. We cannot say that there was no evidence to go to the jury on that point

McGovern’s testimony was contradicted by what he had previously sworn to on another occasion, as to his knowledge of his financial condition when he made the purchase, and this was very material on the question of fraud. Therefore, we cannot disregard the error in the admission of evidence above mentioned, an error insisted upon by the defendant in various waya

Judgment reversed. New trial granted, costs to abide event

Lanuon, J., I concur.  