Moore agt. Livingston and wife.

false, and on such falsity place his demand for judicial relief? I make these remarks with much reluctance; and regret that I shall have occasion to repeat them in other parts of the extraordinary history which I am called upon to review.

Before the adoption of the new Code, the present suit would have been denominated a bill in equity-one of whose fundamental rules was, and still is, that a suitor, coming for relief, must come with clean hands. Does the plaintiff present himself in that attitude?

He asks the court not only to disbelieve his sworn statements in this suit, but (to preserve consistency in his new position) goes still further, and, in effect, demands that other sworn statements, made by him in another proceeding, before another officer, less than two weeks after the occurrence, and while the attending circumstances were of course fresh in his memory, should also be assumed to have been-for there would seem to be no other alternative-direct, deliberate perjury.

His new position on the trial-new as contradistinguished from the written complaint filed by him about five years ago, when this suit was commenced-is, that Miss Blackwell held the property in question not as an ordinary owner, from whom a purchase might naturally be made, but under a secret trust for his benefit, to protect him against inequitable creditors. He accordingly introduces a letter written, he says, by himself to her, on the 8th of October, 1851, the first line of which is in these words :

"I write to request that you will return to me"-gratuitously, of course, he means-" my property, for which you never paid one dollar."

And yet, on the 29th of November, 1844, only eighteen days after the execution of the instrument, by which he had put the property out of his hands, he had sworn, in substance, that the transaction was, in all respects bona fide; that it was absolute, and without any secret trust or understanding; and that the whole consideration, $11,000, the full value of the property, was actually paid. Here, then, we have, in effect, not only the implied averment in his complaint before this court, but the

Moore agt. Livingston and wife.

express averment in his deposition before the surrogate, that he had made a real and not a mere sham transfer; that he had received a full and fair equivalent; and that the unsworn pretence to the contrary, set up in his letter, was entirely destitute of truth. In other words, we are called upon, at one and the same time, to believe that the original transaction was sham, and that it was real; that it was bona fide, and that it was fraudulent; that the alleged consideration money was paid and that it was not paid.

Nor does the difficulty stop with these averments: acts were done. Mr. Elias G. Drake, a stranger at the time to Dr. Moore, although a friend of Livingston's, was called in. The transfer to Miss Blackwell was made through him. He testifies that the alleged payment to Moore of the $10,650 actually was made; that Livingston, on behalf of the Blackwell family, furnished the means; that they consisted of checks and bank notes, which were handed over to Moore on the delivery of the papers; that Moore, Livingston, Drake and Rogers, the legal adviser, who prepared the papers, were all present; and what, if the affair was all unreal, seems still more extraordinary, that the rents were received, and were permitted quietly to be received, for years from that time forward, and new buildings, at an expense of many thousand dollars to be erected, by or on behalf of the Blackwell family.

All these acts, however minute, numerous, circumstantial and long continued as they are proved to have been, it is suggested were mere acting-the fruits of a fertile imagination and inventive genius-a skilful exercise of a kind of dramatic talent in combining a series of unreal elements to produce a real deception. Livingston and Moore, the chief performers, it is said, perfectly understood the plot, and each other. It was the creditors of Moore-the hard-hearted creditors, "without any equitable basis"—who alone were to be, and were deceivedand that rightfully. They were to be told, and to be made to believe-and the evidence shows (so perfect was the illusion) they actually did believe-that the performance was real; "that," (to use the language of Moore's affidavit,) "there was

Moore agt. Livingston and wife.

no understanding-not the least ;" and that it would be a useless effort, in a case attended and followed by so many indications of a genuine transaction, to attempt to impeach its bona fides. Willett did; he filed what was then called a creditor's bill; but, upon learning "the facts," he soon repented of what he had done, and discontinued.

There is a vague impression, nevertheless, it must be conceded, resulting from the whole evidence, and from several very significant omissions of evidence, that the transfer made by Moore, so far as he and Livingston were concerned, may have been a mere disguise. Why was the deed from Moore to Drake, who, as he swears, had no interest in the matter, immediately recorded, while that from Drake to Livingston's nominee, the real purchaser, if any existed, was kept from the public eye, unrecorded, for more than two years?

Perhaps it may be said-and that is the only explanationthat Livingston being known as the intimate of Moore, a deed to him, or a known member of his family, from Moore, might have excited suspicion in the minds of jealous creditors. But how are we to explain the entire omission to prove, or even attempt to prove, the sources of the consideration money. Ten thousand six hundred and fifty dollars in one sum is no inconsiderable amount. Whence was it derived? On what bank were the checks drawn? Five hundred dollars of the amount, a very small proportion of the whole, was no doubt paid in Livingston's check; but even that, there is good reason to believe, although not exactly technical proof, was drawn on a deposit of Moore's check upon another bank. But as to the remaining ten thousand, it is involved in total darkness. Miss Blackwell, whose name no doubt was merely used, kept no bank account; and Livingston's bank account shows no traces of any such sum, either in distinct and separate items, or in one amount. It does show, however, and it is a significant circumstance, that his balance at the time was only one thousand dollars, which was afterwards rapidly diminished, but never increased; and that he was in the regular habit of making his payments, however small, by checks, in several instances of a denomina

Moore agt. Livingston and wife.

tion as low as ten dollars. How is it possible, then, or rather, how is it at all probable, that the ten thousand dollar check, or checks, of which Mr. Drake speaks, and which he was made to believe in, were other than mere shams, handed, first with due formality, by Livingston to Moore, in the presence of witnesses, and then returned, without ceremony, by Moore to Livingston, as soon as the witnesses had retired? The cross-examination of Livingston, as a witness for the prosecution on the late criminal trial, could it be received as evidence to affect the interests of his now wife, would go far to strengthen the suspicions resulting from the entries in his bank account. That examination, however, although evidence against him, is by law no evidence against her. It may (as it undoubtedly has done) produce impressions more or less unfavorable, and of greater or less intensity: but they are impressions which, as this case presents itself, cannot be judicially acted on, unless it be first established that he, and not his now wife, is the real party in interest-a conclusion to which, as it seems to me, the evidence irresistibly tends.

Livingston, it will be recollected, married successively two sisters; the first named Justina, who died on the 11th of September, 1851, and the second named Eliza, with whom he intermarried two years after the commencement of this suit. Their property, which consisted of their shares of their parents' estate, amounting each to from fifteen to twenty thousand dollars, remained still in common, and was managed by an agent, Mr. Stephen C. Williams.

Miss Blackwell kept no bank account herself. Investments, therefore, of any consequence, especially an investment of upwards of $10,500 in a single purchase, on her behalf, would naturally, and I may almost say, inevitably, show themselves. in the agent's accounts. As Mr. Williams, although he might have been, has not been examined, I must infer that his testimony, if given, would have proved no such payment. And no other source of supply being suggested, the conclusion must be that none existed, and consequently that no such payment, out of any funds of hers, was made: a conclusion which is fortified

Moore agt. Livingston and wife.

by the written order addressed by the first Mrs. Livingston to Mr. Drake, in which she speaks of this property as "the real estate you purchased in trust for me," and "which now stands in your name," and requests him to convey it to her "sister, Eliza B. Blackwell."

Should it be suggested that this order is not evidence against the second Mrs. Livingston, a ready answer is furnished by the memorandum at the foot of it, signed by her, in her then maiden name, in which, nine days after the date of the order, she says, "I hereby acknowledge the receipt of the deed for the above property," a deed, too, which, when produced, it is found recites a consideration of " one dollar."

It thus appears by the testimony of Drake, to whom Moore conveyed, that he had no interest in the purchase, so called; and from the acknowledgment of Miss Blackwell, to whom Drake conveyed, that she had none; and from the assertion of Livingston, implied by his handwriting in the body of both the order and receipt, that the purchase, if ever really made, was in trust for his first, and not his second wife.

Now, as there is no pretence that the first Mrs. Livingston paid anything-not even the formal acknowledgment of one dollar in the deed, for the deed was not to her, but to her sisterit seems manifest that the whole transaction was an affair of Livingston exclusively, in which the two ladies merely permitted their names to be used, in the full confidence that all was right.

We come back, then, again to the inquiry-Was the transaction, as between Moore and Livingston, a reality or a sham? Livingston's bank acccount, in connection with Drake's testimony, standing unexplained, clearly proves that the checks used on the occasion were mere puppets, in a show got up to amuse and to blind the creditors of Moore. But were there any doubt on this point, the cross-examination of Livingston in the court of sessions, and which (if, as has been demonstrated, he be the real party) is admissible evidence, must be perfectly conclusive. In that, he says, the transaction on the part of Moore was "to protect himself from the sacrifice of that prop