Emery v. Huntington.

In the remaining case, the ship and cargo, being in danger of sinking in deep water, were run upon the flats and so stranded in shoal water, thereby increasing the peril to the ship, and diminishing the danger to the cargo and the expenses of saving both. Rathbone v. Fowler, 6 Blatch. C. C. 294, and 12 Wall. 102.

But it has never, so far as we are informed, been held or suggested, by any court or commentator, and could not be maintained, consistently with sound principles, that where a vessel is in inevitable danger of being thrown upon a particular rock or reef or shoal, and the master, in the exercise of his duty of so managing the vessel as to make the consequent damage to ship and cargo as little as possible, runs the ship upon the same shoal or rock or reef, in such manner as to bring a different part of the vessel in contact with it from that which the mere force of the winds and waves would, he makes a voluntary sacrifice which will found a claim for contribution in general average. If it were so, there could hardly be a case of a shipwreck, in which the master did his duty, and which did not result in a total loss of ship and cargo, which would not require a general average contribution.

In the present case, taking the allegations in the bill to be true, as we must upon the demurrer, they show that the impending peril was a collision between the plaintiff's bark and the steamer; that such collision was inevitable; that the act voluntarily done by the master of the bark was merely to starboard her helm, an ordinary maneuver of seamanship; that its purpose was to diminish the effect of the impending blow; that by that act the collision was not avoided, but was met as well as might be, and only the position and manner in which the two vessels struck together modified; and that the damage to the bark, though less than it would have been if her course had not been changed, was all caused by the original peril of collision between the two vessels, and not by any new or different one. The plaintiffs cannot therefore claim a general average of the expenses of repairing the damages thus occasioned to their vessel.

It is no less clear that the sums paid by the plaintiffs under the decree of the Danish court (after putting into Copenhagen for repairs) for a portion of the damage done to the steamer, and the expenses incurred in defending against such proceedings, are not subjects of general average contribution. The Danish court had jurisdiction of the cause and possession of the bark; the proceed.

Jordan v. Osgood.

ings therein were against the bark alone, and not against her cargo; and neither the incurring of the expenses of the proceedings, nor the payment of money under the final decree, can be considered as consequences of taking the bark within its jurisdiction, or as resulting from a voluntary sacrifice. The real and legal cause of the liability to pay such damages and expenses was the meeting of the two vessels in collision. Peters v. Warren Insurance Co., 3 Sumn. 389, 14 Pet. 99, and 1 Story, 463; Nelson v. Suffolk Insurance Co., 8 Cush. 477; General Insurance Co. v. Sherwood, 14 How. 351. The collision not having been a peril voluntarily incurred, the damages and expenses resulting therefrom were not matters of general average. STORY, J., in 3 Sumn. 393, and 1 Story, 468; Phil. Ins., § 1272.

Demurrer sustained, and bill dismissed.

In replevin of goods alleged to have been procured by the defendant of the plaintiff, on credit, by means of false and fraudulent representations as to his pecuniary condition, and also with intent not to pay for them. Held, that evidence of another act of fraud committed, about the same time, by the defendant was not admissible to prove the fraud charged, unless there was evidence that the two were parts of one scheme of fraud committed in pursuance of a common purpose.

Held, also, that the books of the bank where the defendant kept his deposit. supported by the oath of the book-keeper, were admissible to show what money he had in the bank at the time.

REPLEVIN of goods alleged to have been obtained of plaintiff by defendant, on credit, by means of false and fraudulent representa. tions as to his pecuniary condition, and with intent not to pay them.

The evidence tended to show that the defendant, a retail trader, in order to procure goods of plaintiff on credit, told plaintiff that

Jordan v. Osgood.

he had a capital of $6,000 above liabilities; had no accounts overdue and unpaid, and owed little borrowed money; that, relying on these representations, plaintiff sold him the goods on credit; that defendant did not have at the time a capital of $6,000; that he owed accounts overdue and also considerable borrowed money, and was insolvent, to his own knowledge; that, shortly after the said transaction, he failed and was adjudged a bankrupt on his own petition. Evidence was offered by plaintiff and received, against defendant's objection, tending to show that defendant obtained goods of other persons about the same time by like fraudulent rep resentations.

Testimony of the book-keeper of the bank where defendant kept his deposit was received to show that, at the time of the transaction, defendant had but a small balance in the bank, and the bookkeeper was allowed to use a transcript of the books of the bank to refresh his memory - the defendant having agreed that the transcript might be used the same as the books might have been. The other facts are not material.

The jury returned a verdict for the plaintiffs "because of false representations," and the defendant alleged exceptions.

A. A. Ranney and D. F. Crane, for defendant.

J. D. Ball, for plaintiffs, to the point that evidence of other fraudulent representations was admissible, cited Rowley v. Bigelow, 12 Pick. 307; Wiggin v. Day, 9 Gray, 97; Stebbins v. Miller, 12 Allen, 591, 598; Winchester v. Charter, 97 Mass. 140; Lynde v. McGregor, 13 Allen, 172; Allison v. Matthieu, 3 Johns. 235; Hawes v. Dingley, 17 Me. 341; Lincoln v. Claflin, 7 Wall. 132; Cary v. Hotailing, 1 Hill (N. Y.), 311; Castle v. Bullard, 23 How. 172; Hathorne v. Hodges, 28 N. Y. 486.

MORTON, J. In this action the plaintiffs, having sold and delivered certain goods to the defendant, seek to rescind the sale upon the ground of fraud. They rely upon two grounds: First, that the defendant obtained the goods by false and fraudulent representations as to his pecuniary condition; and second, that he obtained them intending at the time not to pay for them. The representations alleged to have been made by the defendant were, that he had a capital of $6,000 over and above his liabilities; that he had no

Jordan v. Osgood.

overdue accounts unpaid, and was owing little borrowed money. At the trial, the presiding judge admitted testimony that, at or about the time of the purchases of the plaintiffs, the defendant made the same and also other representations, to other persons, which were false and fraudulent. The principal question upon this bill of exceptions is as to the competency of this testimony. As we have seen, there were two issues before the jury; although they decided the case upon the issue of false representations, yet at the time of the ruling both issues were pending, and if the testimony was competent upon either, it was rightly admitted.

We think it is clear that, upon the issue whether the defendant made the alleged representations to the plaintiffs, the evidence admitted was incompetent. The fact that a defendant has committed a similar but distinct crime or fraud is not competent to prove that he committed the particular crime or fraud with which he is charged. It has no tendency to prove the proposition to be established by the plaintiffs, but is equally consistent with an affirmative or negative decision of that proposition. The effect of such proof may be to produce such a state of mind in the jury to whom it is addressed, that a less weight of testimony satisfies them than would otherwise be necessary to produce conviction, but it does not directly tend to prove or disprove the matter in dispute. The admission of such evidence would introduce a multiplicity of collateral issues, calculated to withdraw the attention of the jury from the real issue in the case; and it would operate unjustly to the defendant, as it requires him to explain his transactions with others, without any notice or opportunity for preparation.

The question whether the evidence objected to was admissible under the second issue appears from some of the authorities to be one of more difficulty. The plaintiffs' position is that the defendant obtained the goods with the intention not to pay for them. This, if proved, would authorize them to repudiate the sale. Dow v. Sanborn, 3 Allen, 181. It is obvious that the principal element involved in this issue is the intention of the defendant at the time of the transactions, and any evidence which directly tends to show such intention is competent. Therefore contemporaneous frauds committed by the defendant are admissible if they tend to prove the motive or intention which actuated the defendant in the transaction under investigation.

The cases are numerous in which this subject has been discussed.

1

Jordan v. Osgood.

We think the true rule to be deduced from them is, that another act of fraud is admissible to prove the fraud charged only where there is evidence that the two are parts of one scheme or plan of fraud, committed in pursuance of a common purpose.

In Lynde v. McGregor, 13 Allen, 172, subsequent fraudulent conveyances were admitted to show that a prior conveyance between the same parties was fraudulent; but the court put it upon the ground that, upon the whole evidence, they appeared to be parts of one transaction, executed with a common fraudulent intent. In Taylor v. Robinson, 2 Allen, 562, the question was whether a deed to the defendant was fraudulent as to the grantor's creditors, and evidence was admitted that the grantor on the same day conveyed all her real and personal estate to her relatives, as tending to show a common fraudulent intent in all the conveyance.

In Williams v. Robbins, 15 Gray, 590, the plaintiff sought to impeach a deed to defendants as being fraudulent as against the grantor's creditors. Evidence of a transfer of the personal property of the grantor to the defendants with intent to defraud his creditors, made three months after the deed, was excluded, on the ground that no connection between the two transactions was shown. MER RICK, J., says: "The authorities referred to by the counsel for the defendants fully sustain the proposition that a transaction proposed to be proved for the purpose of invalidating a conveyance, which is the subject of controversy, on the ground of fraud, must be shown to be so connected with it as to make it apparent that the parties. had a common purpose in both, or it will not be admissible as evidence."

The case of Wiggin v. Day, 9 Gray, 97, more nearly resembles the case at bar. The action was replevin for two wagons attached by the defendant, a deputy sheriff, as the property of one Brastow. The plaintiff, as evidence that Brastow bought the wagons with the intent not to pay for them, was permitted to show that about the time of this sale Brastow was insolvent, and purchased large amounts of personal property of third persons and got them into his hands by fraud, and then secreted them in various places. This evidence was admissible under the rule stated in the cases above cited. The secreting the goods was a very significant fact, and, in connection with the other evidence, tended strongly to prove a general scheme of fraud, of which the purchase of the wagons was a part.