Ward v. Woodburn. as to the admission of evidence. They were not particularly noticed on the argument. In examining them, we have not been able to see that any error was committed in regard to any of them by the decisions. There does not appear to have been any error of law in the course of the trial, which would sustain the court in reversing the judgment, and the questions of fact are of such a character, and the evidence in regard to most of the questions so conflicting, that they can only be disposed of by the finding of the jury. In such a case the court cannot interfere with their verdict. The judgment should be affirmed. [NEW YORK GENERAL TERM, May 3, 1858. Davies, Clerke and Ingraham, Justices.] WARD & PARKER vs. WOODBURN, FRANKLIN & SCOTT. Where, in an action against three, for the recovery of personal property, it appears that there is no issue involving any thing personal to either one of the defendants, but the only defense made is a joint defense, the defendants cannot be witnesses for each other. It would be an idle ceremony to swear defendants as witnesses, where it appears from the pleadings that neither of them can be allowed to testify to any matter in issue in the cause. Per INGRAHAM, J. A release, from two of three partners to the third, of their interest in the partnership effects, taken with full knowledge of, and subject to, all the equities existing between the parties, is not such a sale as will deprive a vendor of his right of action for goods which he alleges the firm have fraudulently obtained from him. Vendors sought to recover the possession of goods, on the ground of a false representation, made by the purchasers' agent, at the time of the purchase, in August, 1853, that the purchasers were worth $40,000. The proof of the falsity of the statement was, that the purchasers failed, in October, and made an assignment in January, following, with only a small amount of assets after paying their confidential debts. The agent swore that be made the statement without any direction from his principals, but believing it to be true. Held that this was not sufficient proof of an intended fraud on the part of the agent. Ward v. Woodburn. PPEAL from an order made at a special term, refusing a A a new trial, and from a judgment in favor of the plaintiffs, rendered on the last count of the complaint. The action was brought to recover the possession of personal property, with damages for detention thereof. The plaintiffs recovered only on the third count. In that count they alleged that on the 18th of August, 1853, the defendants procured goods from the plaintiffs by fraudulent representations. The defendants answered separately, traversing the whole complaint, and claiming property in the goods, and denying possession of the goods at the time the action was brought. The action was tried at the New York circuit, in May, 1856, before Mr. Justice DAVIES and a jury. On the trial the plaintiffs proved two sales of goods, one on the 10th and the other on the 18th August. No representations preceding the sale of 10th August being shown, that demand was rejected by the court, and the case proceeded on the sale of 18th August alone. As to the latter sale, the evidence was as follows: The sale was made by a clerk of the plaintiffs to a clerk of the defendants, on the 18th August, 1853, and amounted to $1246.18. A bill was sent in, stating the terms thus: "Terms: Note to your own order at 8 months." On the 4th October, 1853, the defendants' note for this bill, at 8 months, dated 18th August, 1853, was received by the plaintiffs, and they heard of the defendants' failure a few days afterwards. The representations testified to by the plaintiffs' clerk, were to the effect that the defendants were solvent, and worth $40,000 above their debts. It appeared, also, that on or about March, 1853, one of the defendants stated to another firm that the defendants were worth $40,000, and in February or March, 1853, he stated to another firm that the defendants were worth $50,000 or $60,000. It also appeared that in November or December, 1852, one of the defendants obtained an extension, and then thought he should be able to meet his engagements; and that after the failure the defendants offered to pay their confidential debts and 40 Ward v. Woodburn. per cent to general creditors; and that the assignment is likely to pay 20 per cent to the general creditors. The plaintiffs put in evidence the assignment of the effects of the firm, dated January 4, 1854. The defendants' clerk, who made the purchase, testified that he made the representations without authority from the defendants, and believed them to be correct, when he made them. The defendants Woodburn and Scott offered in evidence the deposition of the defendant Franklin, taken de bene esse. This was excluded, on the ground of the incompetency of one defendant as a witness for the other defendants; to which ruling exception was taken. The defendants Woodburn and Scott were severally offered as witnesses by their co-defendants, and excluded for incompetency, and exceptions to such rulings were taken. It was attempted to be shown that the defendants Franklin and Scott had, on the 10th day of October, 1853, and before the commencement of this suit, assigned to their copartner, Woodburn, all their interest in the goods, and had thereby exonerated themselves from liability. The plaintiffs recovered a verdict for $1248, for the value of the property, and $182.74 damages for the detention thereof. Chas. Tracy, for the appellants. I. The circuit judge erred in excluding the several defendants as witnesses for their co-defendants. Each was a competent witness for the other defendants. (Code, § 397. Beal v. Finch, 1 Kernan, 128. Dean v. Thornton, 3 id. 266. 385. Gardner v. Finley, 19 Barb. 317.) Lefever v. Brigham, 10 How. II. The refusal to charge as requested was erroneous. The assignment made by Woodburn recites the fact that Franklin and Scott sold their interests in the firm's property to Woodburn, the 10th October, 1853. The action was brought on the same day. The plaintiffs put the assignment in evidence, and there was no proof that the action was brought before the transfer was made. This action, for the recovery of possession of personal property, will not lie against Franklin or Ward v. Woodburn. Scott, unless brought before they parted with the property and lost the power to make delivery to the plaintiffs. (Roberts v. Randel, 3 Sandf. S. C. R. 707. nap, 12 Barb. 347. S. C. 16 id. 309.) Brockway v. Bur III. The verdict was against evidence, The case contains all the evidence. The jury were not warranted in finding that intentional deception had been practised by the defendants. A suspension of payments in October, followed by an assignment in January, does not authorize an inference of insolvency in the previous August, much less of a knowledge by the defendants of such a condition. Truman Smith, for the plaintiffs. To the legality of the proceedings at the circuit, only two objections are taken: I. It is insisted that the defendants Franklin and Scott had exonerated themselves from all liability, by assigning to their copartner, Woodburn, all their right and interest in these goods before Ward & Parker rescinded the sale of the 18th of August and demanded back the goods. To this we answer: (1.) It does not appear that Franklin and Scott sold and assigned to Woodburn on the 10th day of October, the day of rescission of the sale by Ward & Parker. The only evidence in the case on this point is a recital in the indenture of assignment, executed by Woodburn to Woodruff, and dated January 4th, A. D. 1854, wherein it is stated that they, Franklin and Scott, had sold their interest to Woodburn, by an instrument dated on the 10th day of October, and not that it was in fact executed and delivered on that day. (2.) The instrument, whenever executed, only "sold, assigned, transferred and made over" to Woodburn "all and singular the goods, chattels, credits and effects" of the late firm of Woodburn & Co. They did not sell these goods; they were "the goods, chattels and effects" of Ward & Parker, and did not belong to Woodburn & Co. (3.) The assignment by Franklin and Scott to Woodburn was a private affair of their own, of which Ward & Parker had no notice. It would seem to Ward v. Woodburn. be a singular idea that two of three joint tort feasors concerned in defrauding another of his estates can exonerate themselves from all liability by secretly transferring their interest in the plunder to their associate in fraud. If such an absurdity could be recognized for a moment, the court at least. should hold that notice of such transfer should be given to the party injured. (4.) The most that can be said is that the transfer by Franklin and Scott, and the rescission by Ward & Parker, both took place on the same day, (October 10th.) There are no grounds for presuming priority in favor of one transaction any more than there is in favor of the other. If a transfer by Franklin and Scott to Woodburn is, as to them, a defense, they must prove the priority, and not call on the court to help them out by presumptions. (5.) But the defense itself is an absurdity. Joint participators in fraud cannot obtain an exoneration from responsibility by any dealing among themselves with the subject of that fraud. By receiving the goods and holding them in opposition to the demand and requisition of Ward & Parker, they made themselves jointly liable for the imposition practiced by their clerk Howe. Besides there is evidence that the falsehoods of Howe were concerted between him and one at least of the members of the firm. (6.) Independent of all knowledge of, or actual participation in the fraud, it is a settled rule of law that the principal is liable civiliter for the fraud or misconduct of his agent. "The authority to purchase is authority to make the necessary representations as to the credit and solvency of the principal." (Hunter v. Hudson River Iron and Machine Co., 20 Barb. 493, 506.) II. In this case the defendants were not competent witnesses for each other, for (1.) It is not a case of pure tort, as in Beal v. Finch and others, (1 Kern. 128.) (2.) It is a case of tort arising ex contractu. The defendants are sued for goods which their agent, Howe, purchased and obtained from the plaintiffs by false and fraudulent representations as to the solvency of the defendants. Whatever either defendant might |