Eames v. Kaiser/Opinion of the Court

The affidavit on which the attachment writ in favor of Claflin & Co. issued averred that Kaiser was 'about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors,' and this action was predicated upon the falsity of that averment.

The record discloses that proof was adduced upon the trial tending to show an intent on Kaiser's part, at the time of the suing out and levy of the attachment, to defraud his creditors by secreting his property by putting it into the shape of notes, and by fraudulently placing them beyond the reach of his creditors; and it also appears from the evidence in chief of Kaiser, as a witness in his own behalf, that on the day of the levy of the attachment, or the next day, an amount of $13,815, owed to him, 'was put in the shape of negotiable notes.' The circuit court refused to allow Kaiswer to be asked on cross-examination what he did with these notes. In this ruling there was error. Upon the issue involved the defendants were entitled to a wide latitude in cross-examining the party charged with fraudulent conversion when testifying for himself. If the particular indebtedness to Kaiser was turned into notes, and the notes were convered into money, before the attachment issued, or simultaneously, that fact sustained the charge of the conversion of the property into money, and, with the other evidence, justified the inference that this was for the purpose of placing it beyond the reach of his creditors. Defendants were not called upon in propounding the question to the witness to state what they expected to prove by him, which it would have been ordinarily quite impossible for them to do; but, inasmuch as he had testified in his own favor that the notes were obtained at or about the time of the attachment, the defendants were entitled to push the inquiry further, and elicit from the witness all the circumstances surrounding the obtaining and the final disposition of that paper.

Indeed, as the evidence tended to show an intent on Kaiser's part, at the time of the suing out of the attachment, to defraud his creditors by putting his property into the shape of notes and placing them beyond their reach, proof of Kaiser's acts of a similar nature, occurring immediately after the attachment writ issued, would have been admissible if in causal relation with what the whole evidence showed was one transaction. Of course, this would not be so as to independent and isolated action after the issue of the writ, but, when happening in immediate connection with what preceded, and as part of one whole, the evidence would be admissible; and we are clear that, tested by the record before us, the question was legitimate and proper on cross-examination, and the objection should not have been sustained.

The judgment is therefore reversed, and the cause remanded to the circuit court with a direction to grant a new trial.

Mr. Justice BLATCHFORD took no part in the decision of this case.