ARTHUR THORNTON v. T. K. HOOK, 36 Cal. 223

By the Court, Sanderson, J. : It is not always easy to determine the precise point beyond which a cross examination should not be allowed to proceed. The general rules upon the subject are plain enough; but the difficulty lies in the just application of them to given cases. Thus it is well settled that a witness cannot be cross examined, if objection is made, except as to facts and circumstances connected with matters testified to by him on his direct examination.

But it is sometimes difficult to say whether a given fact or circumstance is connected with a matter previously stated by him in the sense of this rule. If the broadest latitude be given to the rule, a cross examination might extend to the whole case, for all the facts of a case may be said to have a certain connection with each other. This rule is, therefore, qualified by another, which is equally well settled. It is, that a party who has not yet opened his own case cannot be allowed to introduce it by a cross examination of the witness of his adversary.

In most cases, doubtless, guided by these rules, a Court will be able to prescribe with accuracy the limits to a cross examination; yet it frequently happens that both sides of a case stand, in part, upon common territory, or are founded in part upon the same or cognate facts. In such cases it is impossible to adhere strictly to the one rule without violating the other, for the question put may apply equally to new matter and to matter already stated, or at least it may be difficult to decide whether it does or does not. Of this class of cases the present is an example.

The questions put to the witnesses Borland and Greer, on cross examination, had they been allowed by the Court, would, doubtless, have elicited matter connected with the plaintiff’s possession of the property in question, and therefore his title to it, within the meaning of the rule first noticed; but it is equally certain that the matter so elicited would have been connected with the defendant’s case within the meaning of the rule last noticed.

Where such are the conditions, the course to be pursued must inevitably be left to the discretion of the Judge below, and his ruling cannot be regarded as a legitimate subject for a bill of exceptions. (Ellmaker v. Buckley, 16 S. and R. 72; Burke v. Miller, 7 Cush. 547, 550; 1 Greenl.

Ev., Secs. 445, 446, 447.) The instruction which was asked for by the defendant, to the effect that if the sale from the Bogarts to Nichols was void as against the creditors of the former, the plaintiff’s purchase from Nichols would be also void, unless it appeared that the plaintiff purchased without notice of the fraud in the sale from the Bogarts to Nichols, and for a valuable consideration; and that upon that question the burden of proof was upon the plaintiff; and further, that the relinquishment of an antecedent debt due from Nichols to the plaintiff, and a promise on the part of the plaintiff to pay a debt due from Nichols to Borland, evidenced by the plaintiff’s note to Borland, unpaid at the time the property in question was seized by the defendant, did not constitute a valuable consideration, does not present the law of the case, and was therefore properly refused by the Court.

The maxim, nemo plus juris ad alium transferre potest, quam ipse habet, which lies at the foundation of this instruction, has, as we conceive, no application to this case. Had Nichols become the purchaser from the Bogarts through fraudulent representations, which would have vitiated the contract between them and rendered it null and void, and afterwards sold to the plaintiff, the instruction would have been in point. No title would hayo passed from the Bogarts to Nichols by reason of the fraud, and the latter, therefore, could have conveyed no title to the plaintiff.

Having no title, the plaintiff would be compelled to show an equity superior to the title, or yield the goods to the holder of the title. His right to the goods would depend, not upon the title, but upon the ground that he purchased without notice of the fraud of his vendor, and for a valuable consideration, in which case his right to the goods would be considered superior to that of the first vendor; for, where one of two innocent persons must sustain a loss, equity will cast it upon him who contributed to that result. The conditions are different in the present case.

As between the. parties, the sale from the Bogarts to Nichols, and the sale from Nichols to the plaintiff, were both valid, and the title passed from the Bogarts to Nichols, and from Nichols to the plaintiff. The defendant’s claim is not, therefore, founded upon the groutid that the title is still in the Bogarts, as in the case supposed, but upon a provision of the Statute of Frauds, enacted for the security and protection of creditors, which, as to them, annuls a sale which has been made, although good as between the parties to it, if it appears to have been made with a certain intent.

Whoever seeks the benefit of this provision confesses, as the statute itself assumes, that a sale of the goods has been made, but alleges that the sale was fraudulent as against him, and, to entitle him to recover, he must make good his allegation; the burden is upon him. He alleges fraud, and must prove it, or the statute will not disturb the sale nor the Courts interfere. The doctrine advanced in the instruction, as to the necessity for a valuable consideration, and as to what is a valuable consideration, is equally out of place.

The Statute of Frauds does not annul a sale in favor of creditors solely upon the ground that it was not founded upon a valuable consideration. Judgment affirmed. Mr. Justice Crockett expressed no opinion.