Strupper v. King

¶11. If the answer of the witness King, had shown that the statement made by Barden was so made in the presence of N. Lovinger, then it would have been relieved of one of the objections to it. The object of the plaintiff, in desiring the answer was, doubtless, t© connect Samuel Lovinger with the debt on Barden, and thereby raise the question of fraud in the transfer of the debt by S. Lovinger to N. Lovinger. If this issue could have been made in this case, and we do not say it could not, then it would have been for the purpose of defeating the rights of N. Lovinger. This could not have been done by hearsay. What Barden may have said to King, the bailee, in the absence of N. Lovinger, could not have affected his rights. Barden was a competent witness, and his testimony, not statements, were the only competent evidence. The same principle would also exclude the answer of Barden & Company to the summons of garnishment served on them. That answer could have been legally used in an issue to which they were parties, but not in the one in which it was tendered.

¶22. Complaint is made that the Court charged, that in this proceeding the jury, “could not inquire whether or not S. and N. Lovinger, in the transfer of said debt, (if any transfer there was to N. by said S. Lovinger,) had committed a fraud upon the creditors of said S. Lovinger,” Whether the Court was or was not correct in this charge, was wholly immaterial, under the evidence. • There was no testimony, and none that was competent was offered, to show that N. Lovinger had any connection with the debt on Barden — none showing with whom it was contracted, or that S. Lovinger ever owned it. This being so, the evidence made no issue of fraud, and the jury, of course, could not consider it.

¶3Judgment affirmed.