Wilcox and Welch v. Kellogg et al.

2. That David G. transferred the property, abcut the time he had reason to suppose the debts of the firm of Kellogg & Williams would be pressed for collection.

3. That he wrote to the eastern creditors, requesting time for payment, which, it may be claimed, was a device to put them off their guard, until he could dispose of the property.

4. That an amount much larger than the debt due to Jacob Williams was transferred to him.

5. That it was sold at auction to pay this debt.

It is recognized as a suspicious circumstance, when a debtor, in failing circumstances, passes his whole property into the possession of his near relations; but in this case, the consideration is proved to have been bona fide, beyond dispute, over $2,000 cash advanced. This transfer was legal, if honest, at any time before the law had taken the property into its custody, whatever might be the circumstances of David G. Williams. In writing to the eastern creditors for time, the letters show he offered to surrender the property, if the creditors desired it, but they declined. The amount transferred was directed to be sold gradually, at auction, not forced, and did not bring sufficient to pay the debt; and in cities, the auctioneer is a convenient and proper channel through whom property of this descripiton will frequently sell to the best advantage.

We do not, therefore, after the most mature deliberation, find evidence sufficient to declare this transaction fraudulent.

It is contended, however, that the complainants being creditors of the firm of Kellogg & Williams, the debts of which 399] *firm Williams had assumed to pay, they had a lien upon the partnership property, into whosoever hands it might pass, which might be enforced in equity. Is this so? It is laid down in Story on Part., sec. 358, that while the partnership is solvent and going on, creditors have no equity against the effects of the partnership; neither have they any lien on the partnership effects for their debts. There being no lien, and no equity in favor of creditors against partnership effects, it follows they are susceptible of being legally transferred bona fide, for a valuable consideration, to any persons whatever, and as well to other partners as mere strangers. The equity of creditors upon partnership property is, when sifted, as laid down in the books, only the equity of the partners, and can only be reached or worked out, as it is said, through

Halleck v. State of Ohio.

them. It appears to me, then, clearly, if these goods passed, on the dissolution of the partnership of Kellogg and Williams, to David G. Williams, bona fide, and for a valuable consideration, from him again, to Williams and Stokes, and from them to David G. Williams, and thence to Jacob Williams, in the same bona fide manner and for a like consideration, they are beyond the reach of the complainants.

But it is said, the transfer to Jacob Williams is fraudulent, under the act of February 23, A. D. 1835, being an assignment in trust. But this is clearly not so. It is an absolute conveyance to pay Jacob Williams his debt, and is not, therefore, within the provisions of that act. Bill dismissed.

*ROBERT S. HALLECK V. THE STATE OF OHIO.

[400

In an indictment for perjury it is sufficient to aver that the court had power to administer the oath, without setting forth the facts necessary to give jurisdiction.

When it became material to prove the contents of a book of accounts, which had been admitted by the accused to be correct and true, the book may go to the jury as evidence of the extent and nature of the admission.

THIS is a writ of error to the court of common pleas of Ashtabula county.

The case was this: Complaint had been made by the plaintiff in error before Crosby, a justice of the peace, against Abijah Southwick for perjury. On the hearing of this complaint, the plaintiff in error was examined on oath as a witness. In the course of examination, it became a material question, whether a note for $17.38 had been given by Southwick to Halleck on a settlement between them. Halleck, the plaintiff in error, stated on oath, as a witness, that a note, for that amount, had been given him by Southwick, on a settlement, in June or July; but that the note was mislaid or lost. Halleck was then indicted for perjury in the above state

ment.

The indictment sets forth that complaint had been made by the plaintiff in error, in due form of law, before Crosby, a justice of the peace, against one Southwick, for perjury.

Halleck v. State of Ohio.

After setting forth the appearance of Southwick to answer this complaint, the indictment then avers, that, "thereupon, the said David Crosby, as such justice, as aforesaid, proceeded to hear and determine the matter of said complaint, in the presence of said Abijah Southwick, and at, and upon the said hearing, of the said matter of said complaint, by the said David Crosby, as such justice of the peace as aforesaid, the said Robert S. Halleck, of said township of Saybrook, in the county of Ashtabula aforesaid, appeared as a witness, in support of said complaint, to, and before the said David Crosby, Esq., such justice of the peace, and then 401] and there as such witness, *by, and before the said David Crosby, Esq., such justice of the peace, as aforesaid, was, in due form of law, sworn by the said David Crosby, to testify the truth, the whole truth, and nothing but the truth, relative to the complaint aforesaid, then and there in hearing, before the said justice, he, the said David Crosby, Esq., then and there having sufficient and competent authority to administer an oath to the said Robert S. Halleck, in that behalf."

The indictment then proceeds to aver the materiality of Halleck's testimony relative to the note given him by Southwick, on settlement, and, setting forth his statement in relation thereto, negatives his testimony with the usual averments.

The evidence on the trial to which the plaintiff excepted, is set forth in the opinion of the court.

WADE & RANNEY, for the plaintiff in error, contended: That the indictment should show a cause depending, in which the oath was administered, and that the court had jurisdiction of the cause. 2 Russell on Crimes, 520; Bullock v. Coon, 9 Cowen, 31; 1 Chitty's Crim. Law, 188; Stevenson v. The State, 6 Yerger 531; State v. Ammon, 3 Murph. 126; Shaffer v. Kinton, 1 Bion. 537; Vansteenburgh v. Kortz, 10 Johns. 167; Rex v. Cohen, 1 Stark. 511; Starkie's Crim. Pleading, 124.

That to give the magistrate jurisdiction, the complaint should have been made by affidavit, in writing. Swan's Stat. 537. That as the indictment does not aver the complaint to have been in writing, the magistrate does not appear to have had jurisdiction of the cause in which the plaintiff in error was sworn; but the proceedings, so far as appears from the indictment, were, therefore, coram non judice.

That the averment of the proceedings being in due form of law,

Halleck v. State of Ohio.

and of the magistrate having sufficient and competent authority to administer the oath, is merely a conclusion drawn by the pleader; but the facts, to establish the correctness of that conclusion, should be averred.

*They also insisted that the book of accounts, containing [402 the settlement between Southwick and Halleck, was improperly admitted.

No argument was submitted on the part of the state.

BIRCHARD, J. This case presents two questions. One of evidence, and the other as to the sufficiency of the indictment. It appears from the record that the plaintiff was indicted and tried for perjury in testifying, before one Crosby, a justice of the peace, on a complaint pending before him, against one Southwick; that said Southwick had previously executed to him, on a settlement of accounts, a promissory note for the payment of $17.39. The bill of exception shows that on the trial of this cause, Southwick was introduced as a witness, and produced his book of accounts, and testified that it contained a true and just account of his charges against the plaintiff, and also of the credits which he had given him; that plaintiff and the witness had settled said account, and that, on such settlement, the witness read over such accounts to the plaintiff, who acknowledged them to be just and true; and further, that he, the witness, had never given to the plaintiff the note of $17.38 mentioned in the indictment. The bill also shows that another witness testified, that he was present at said settlement, when Southwick read from his account the items of debt and credit, and that the plaintiff acknowledged the same to be correct. After further evidence had been introduced, the prosecutor, in the progress of the cause, offered in evidence to the jury the book of accounts, and it was admitted by the court, notwithstanding the objections of the plaintiff.

Was this book of accounts improperly admitted? Counsel urge that it was, inasmuch as it was not within the custody or control of the plaintiff, and, that if it contained facts material for the state to prove, it could only be referred to by the witness, to refresh his memory. It seems to us that the court did not err in permitting the book to go to the jury. The material question was, [403 whether or not, on the settlement of that account, Southwick gavo to the plaintiff a note of $17.38. The proof, by two witnesses,

Halleck v. State of Ohio.

showed, that this book contained evidence of the items adjusted at that settlement, and that its correctness was, at that time, admitted by plaintiff. There can be no question but that the admissions of the plaintiff were legal evidence against him. This book of accounts, whether kept by him or another, whether within or beyond his control, was the best evidence of its own contents, and better evidence of the extent and particulars of the items therein contained, and admitted by plaintiff to be just and correct, than the recollection of any person. So far, then, as the book of account showed items which had been admitted and settled by the parties, and tended to enable the jury to ascertain the actual debits and credits, and of the sum then due to either party, it became, under the state of the proof, competent testimony; not merely because it was a book of account, but because it contained written evidence of what the parties themselves had done, and of what the plaint. iff had then said was just and true.

The objection to the indictment is, that it does not show that Crosby, before whom the perjury is alleged to have been committed, had any jurisdiction to administer the oath, inasmuch as it does not set forth that a complaint, in writing, on oath or affirmation, was made before him. The indictment charges that the plaintiff's offense was committed before David Crosby, a justice of the peace for Saybrook, in the county of Ashtabula; and, it avers that said Crosby had full power and authority to administer the the oath; that it was taken on the hearing of a complaint against said Southwick, for perjury, which complaint had been made in due form of law, and was then on hearing before said Crosby, as such justice. It may be admitted that this general form of allegation would be bad, by the rules of common law, without it necessarily following that the court of common pleas erred in refusing to arrest judgment in this case, for, by recurring to section 11 of the act providing for the punishment of crimes, Swan's Stat. 231, it will be seen that, in this state, the common law has been 404] *modified by express legislation. Section 11 provides "that, in an indictment for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath or affirmation was taken, averring such court or authority to have had full power to administer the same, without setting forth any vart of any record or proceeding, in law or equity," etc.