James H. Clark and William T. Clark, by W. S. Briggs, their guardian, vs. John Underwood, impleaded with A. C. Montgomery and John Gardner, 17 Barb. 202

T. R. Strong, J. The proof which the defendants offered to make by the witness Cameron, and which was rejected, should, I am satisfied, have been received.

The conversations between Montgomery and Gardner, two of the defendants, proposed to be proved, were intermediate the presentation of the petition to the county judge, and the application to this court at special term for a sale, and but a brief period before the order for a sale was obtained; they related to the past as well as to future proceedings to effect a sale, all of which are charged to have been fraudulent; and were so connected with those proceedings as to form a part of them; and they were of such a nature as to be entitled to some consideration, upon the question as to the motive with which those proceedings were conducted.

They were part of the res gestee, calculated to afford some light on the subject under investigation, and, as such, proof of them was admissible. Whenever the intention with which

an act is done becomes a subject of inquiry, the conversations and declarations accompanying it, of the persons by whom it was performed, may be proved in their favor, as part of the res gestee. (1 Phil. Ev. 231. 1 Greenleaf’s Ev. §§ 108,109,110.) Several illustrations are given and authorities referred to by those authors, and numerous others will he found in Cowen & Hill’s Notes, 585 to 606. (See also 3 Greenleaf’s Ev, § 99. Rex v. Whitehead, 1 Car. fy Payne, 67.) It would often lead to error, and be highly unjust, to refuse such evidence in explanation of the conduct of men.

In regard to the communication of Gardner to Montgomery, on the 11th of November, the day before the order for a sale was made, of what the attending physician of Mrs. Clark had told him in reference to her health, proof of it was clearly admissible, as showing, in part, the information upon which Montgomery acted. Greenleaf says, (Vol. 1, § 101,) “Where the question is whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence.

This is often illustrated in actions for malicious prosecutions, and also in cases of agency, and of trusts.” Evidence of similar communications to Montgomery by other persons was received without objection, and a distinction appears to have been taken, between information given by Gardner and that received from others, but I am not aware of any good ground for such a distinction. [Monroe General Term, September 5, 1853. Welles, Selden and T.

R Strong, Justices.] This proof might not have affected the result, but it is sufficient to call for the granting of a new trial, that the defendants were entitled to make it, and may have been prejudiced by its exclusion. It would have tended to show that Montgomery was not guilty of the fraud charged, and proof of that fact would have essentially aided each of the other defendants in his defense. Aside from the offers and rejection of evidence which have been considered, I should have no difficulty in sustaining the judgment.

I am therefore of opinion that the judgment should be reversed, and a new trial granted as to the appellant; but my brethren have arrived at the conclusion that the evidence rejected, if it was admissible, and had been received, could not have affected the result, and that the judgment should be affirmed. Judgment affirmed, with costs.