NORRIS
v.
M'CANNA.
757
supreme court ofthe United S.tates inHuff v .. Hutchirlscm, 14 How', 587, held that "the marshal is competent to sue in a court of the United Sw.tes, on an attachment bond, citizens of the state in which he is himself a citizen, averring on the record that the suit is for the benefit of the plaintiff in the original action, and that they are citizens of anotherstate." He mayalso·sue on a forthcoming bond. See, also, McNutt v. .Bland, 2 How. 9; Irvine v. Lowry, 14 Pet. 293; Browne v. Strode, 5 Cranch, 303. A forthcoming bond is taken by the sheriff for; the benefit oUhe' plaintiff. Thompacm v. Mapp, 6 Ga. 262; Code Ga. § 13. The marshal having no interest in this suit save the proper performanee of his official duty ,his action being merely for the benefit of the plaintiffs,who 'are non-residents, his residence in the state cannot defeat the jurisdiction oUhe court, and the motion, to remand is denied.
NORRlS
a.nd'others ". McCANNA. December, 1880.'
(Oircuit Court,
w: n. Michigan, No n.
CONVEYANCES..,..!NTENT-QUESTION ]'oRJUny:'-How. COMP; ST. § 6206. . , Under How. Compo St. M:ich.' § 6206, the question of the intent in conveyances alleged to be fraudulent .is one of fact, and not of law; and, where a conveyance of his stock in trade' by a married man to hIs wife is impeached as fraudulent. the value of the stock largely in excess of the claims of the wife for advances to the husband, it IS not error to refuse to charge that that fact is a "badge of fraud," and that the jury might find from that fact that the transfer was fraudulent and void. the jury having been instructed that such facts were for their consideration in determining whether there wal fraud or not. ' t. ESTOPPEIr-By CONDUCT-TROYER AGAINST SHERIFF'-CQNSENT TO LEVY. Where the sheriff's certificate made no mention of the mortgage,nor indicatedany lien subject to which the levy was made, the mortgagee ofll stock o(,goods jJ,ttached by creditors of the mortgagor is not estopped, in trover against the sheriff. fJ;om maintaining that the under the. attachment, Was tortious, by the fact that his attorney consented to the levy, provided ··that it should contain a recognition of the mortgage.' : I. AND WIFE-PARTNERSHIP-DEBTOR AND CREDITOR. While the facts that a married woman, apparently occupied as a helper in the same shop where her husband had his general store, had asserted no claim of interest in the but on the contrary had suffered him to deal with them as his own, mIght estop her from claimmg, as against creditors of the husband who had attached the stock. that she was a 'partner, and so entitled to an interest. when her assertion of an interest in It would disappoint the creditors, who had become such while the appearances held out were that the property was that of the husband. yet she is not. estopped from asserting agamst such creditors that the husband was a debtor to her for actual advances to him as a loan. 4. TROVER AND CoNVERSION-TORTIOUS TAKING-DEMAND. W,here a.' transfer of goods by a debtor, on the fraudulent character of which attachments are based. is shown to be bonafide and valid, the taking under the writs is tortiQus, and a prior mortgagee of the goods may maintain trover against the sheriff without demand. . :MICH.
i.
:J
758
FEDERAL REPORTER.
li.PART,NERSHIP-QUESTION FOR JURY· . . ,. When there is nothing in the testimony which would warrant the juryin . ":finding that a husband and wife were 'partners, more than a vague recognition 'by the husband of an (not amounting to a legal one,) and a SQrt,of mQratlien for the amonn,t of. the money of the wife which she had permitted the husband to invest in the business, the question of partnership between them should not be submitted to the jury. 6. SHERJll'F-SEIZINGMORTGAGED GooDs-MEASURE OF DAMAGES-How. COMPo ST. MICH. tI 7682. ;.. s4eriff who, with actual notice of an existing mortgage, prima facie valid, .on & stock of goods, attaches the goods at the suit of creditors of the mortclaim that the mortgage is fraudulent and void, and takes and malDtabl,s possession of them, in disregard of the mortgage, instead of seizing the property subject to the mortgage, and keeping possession only so long as .was necessary to appraise and inventory it. ann then returning it, if required. to the' mortgagee, as provided by How. Compo St. Mich., § 7682, is liable in trover. at, the suit of the mortgagee. in damages to the amount of the mort: gage. not exceeding the value of the mortgaged property. '1. SAME-No INDEMNIFYING DOND-How. COMPo ST. MICH. 7711. The failure of a sheriff to take from attaching creditors the bond of indemnity provided for by How. Compo St. Mich. § 7711. is his own neglect, and cannot be allowed any consideration to relieve him from liability for damages resulting from a wrongful seizure. 8. SAME-ORDER OF COURT BASED ON VOID LAW-LAWS MICH. 1888, No.19s' The fact that No. 198. Laws Mich. 1883. was unconstitutional and void. will not render a sheriff liable who obeyed a mandate of the court, made au· thority of that act, and turned over to a receiver property which he had at· tached. . ' ' 9. SAME-DAMAGE BY FmE. A liableforthedamageto attached goods in his possession, done by fire. although his seizure was wrongful, where it appears that the fire was not caused bv his n,eglig-ence. was accid llI1 tal
Trover. On motion for new trial by defendant. BaU Hameom, for defendant. ,Mam.Riggs and Mqpa,. fdi'plaintiffs. SEVERENS, J. This cause was an action of trover, counts in case be. ing also joined in the declaration, tried at the last term of the 'court held at Marquette, in wpich the pl!dutiffs recovered a verdict. The substantial facts in ,the case were as follows: One having been engaged in the business of carrying on a general store at Manistique, had become indebted for purchases of stock to various parties, and, among them, the plaintiffs. There was also carried on in the same store a small line oj jewelry business, which his wife, who occupied the store with him, had under her more especial management. The debt to the plaintiffs was for a considerable amount, and, feeling uneasy about it, they lodged their claim with R. G. Dun & Co.'s collection agency, at Chicago, for collection. Some part of the debt waa not quite due, but would mature in a few days. The was transmitted to W. F. Riggs, an attorney at Manistique, and he, on the day of November, 1883, procured a chattel m()rtgage from Smith upon the g,aneral stock in the store, and also upon the jewelry; Mrs. Smith iuthe chattel mortgage, on account .of a claim which she aSserted in thejewelry. This mortgage ran to the plaintiffs, and, in terms, secured the payment of Smith's debt to them on the first
NORRIS V. 1t1'CANNA.
759
day of December then following, and was immediately filed. The day after the giving of this mortgage Smith transferred to his wife his remaining interest in the mortgaged goods, in sati!!faction of a debt due, as they both assert, from hirilto her, on account of moneys which she had adva.nced, and whichhadgbne into the business. The amount of these ad"arices, with the interest thereon, fell far short of the actual value <>fthe interest thus transferred to her. On the day succeeding t1J.is transfer, thedefeJidant, who was sheriff of the county,levied two writs of attachment against Smith, and in favor of other creditors, on the mortgaged goods. There was a conflict in the -evidenqe upon the trial as to whether these levies by the defendant were intended by him to be in defiance of the mortgage given to the plaintiffs, but the preponderance of the evidence tended to sbow that the sheriff, and the creditors whose writs he had, believed themongage to be fraud:. and void as to creditors,and that they therefore refused to recognize it,. 'The sheriff's certificates do not mention the mortgage, or iudicate,'anjlien to which the levies were made sUbject. The goods were by the sherifI' into his possession, and were removed by him from the store to another part- oithe village. The goods were inventoried and appraised. The evidence for the plaintiff tended to show that, after the irive:p.tOry and appraisal, and after the mortgage became due, a Specific 4efuand. was made inpehalf oHhe plaintiffs uIltm the sheriff for the the gOodl;l,,and th8:t the sheriffflatlY'l'efused to recognize \iny right in the plaiIitiffsundertheir mortgage.Tha defendants denied that such demand was made tipon him, and insisted,that his possession assented to· by Riggs, ,who represented the plaintiffs. At length an Mder wairoade by the circuit court of Schoolcratl'oountythat the sheriff transfer these goods to a receiver appointed under the state law in refereJ;lce to assignments. Act No. 193, 1883, since declared unconstitutional by thesta.te supreme court inRis8er v. Hoyt. Q3:Mich. 185; S. C. 18 N. W, Rep.G1l.. Meantime, or rather before the order was execu¥, a 'part' of the goods were destroyed by fire. The .remainder were turned over 'to the receiver, 'disposed of hy.him, and'the proceeds distributed to the creditors, the plaintiffs, however, not pltrticipating. This action then brought. .. , The recovery by the. plaintiffs was for $1,354.45, being the amount secured by the chattel mortgage. No question was raised but that the value6fthe goods exceeded the plaintiffs' debt. A motion having been madefQr a I1ew trial, argument thereon has been beard, and most oithe grotlIlds add: reasons urged in behalf of the defendant have been already disposooo(, leaving only the following questions for further consideration: . the trial the .counsel for the defendant presented a series of requestS fodnsttilctions to the jury, which, grouping together certain features of the· case, upon which 'argument could be made against the validity of the mortgage, and of the transfer from Smith to his wife, asked the court to instruct the jury that such circumstances constituted Clbadges offraud," or, ll.s in SOlrieof the requesta, rendered the transaction mud-
was
760
ulent and void as to creditors. The following, is defendant's nineteenth request, is an example: "The fact appean-ng from Mr. and Mrs. Smith's testimony, that the property tran,sferred was largely is a badge in excess of Mrs. ,Smith's interest in the goods, or, of fraud, and you may find ,from that fact that the transfer was fraudulent and void." Tpe cour,t refused such requests, holding that the question of the alleged fraudulent intent was one of fact wholly, and was for the jury to determine, upon aU, evidence in the ca:se; that while it was laid down. as law iIt text-pooks that such facts as were, embodied in these requests fraud," still the court held that such ,conclusions of fact as well as of law" and were of a class whicll, Judge ,in Watkins v. Wallace,,19 Mich. 77, calls "teclmical and stpckph;rases,,Qf the pe;nch and, hq,r." ,'l'lW court was of llfl' ·would be to invade the province opil}ion ,that, to and :wouldpracti<;lallygo far towards turning such questions of the them as questions of fact., The into matters of law court simply qirected the atteqtiou,of the jury to these features of the case, and instructed.them that ,t4ese,and all the facts, were for their a f.rau,dulent intl3nt inspired the consideration ' " '" ,"";" ' , transaction. requests, and leaving the quesThis action of the court, tion of {ra-ndto thedurY,,:wiij).putany instruction, as to whether these is complained of"and made, parts oithe testimony tended to shQw a ,ground of this ffiPtion fOf' a, new ,trial., But after full Q9nsideration, I am satisfied thlj.t t4ecourse take1+d:>n the trial was correct. The statute that the of fraud of Michigan (How. Camp. St. § in, such traIlllaotio.n shall be one,Hoffact, and not of llj.w," and witho1;lt such statute it.isessentially so.' ,The c;leduction of actual intent from circumstances proved is logically an i,n{efence oHact, and not of law. When the fraudulent intent appears upon the. face of an instrument which the court is callooupol1 to COl)strue and give effect to, it becomes a matter of law, like ali other ma-tters thus coming into a case; bllt wbere the evi- , dencJ;' is of facts, in parol,' the:Jury are to say what are the in:be drawn,.:, ," ..' ferences The result is, in the language of the court in Gay v.Bidwell, 7 Mich. duty of drawinf!: all necessary infer519, 524, "to leave' to the jury ences from. facts." See, also, Oliver v. Eaton, 7 Mich. 108, where the court, adopting the doctrin(l of Smith v. 4cker, 23 Wend. 653, declared it .to have been the accepted rule this state. It maybe that cases may arise wheretbeproofis so overwhelmingly one way that the court would.be called upon to give explicit direction to t,he jury to ,find accord'ingly; but this is quite another matter, and such practice is not pecu" : . . liar to any clail!'l ;0'[ c;:ases, ' Another, q:u¢stjQn,which wa,s,ref;1erY,ed for further, consideration, was whether1lP etxgr ,was cQmmittedby the in charging the jury that, if theyfouud:the traJ;lsfer fromSm,itA ,tg wife to have been oona, fide and vnlid, thf!l1 the levy of, the: writs by the. sheriff on these goods was without justifioation, and would not warrant any 8,s$umptionof control
761
over them, the goods not being those of the ·defendant in the wrHsj and that, in stich case, no demand was necessary to be made. upon the sheriff for the possession before bringing this action. . This instruction is complained of on two grounds: Pirst ·It is said that the testimony of Riggs shows that at the time .the levies were made he assented thereto, and no doubt he testified that he assented to the levy, if it was made in recognition of the mortgage he had in charge for the plaintiffs. If that assent had been acted .upon bJ the sheriff, Hought to follow that the plaintiffs would now be estopped from claiming that the taking was tortious. But the. truth was that the sheriff was ndt led to make the levies by. any assent of Riggs, and the levies would have been made whether he assented or refused. The defendant did not;· therefore, take his course upon the footing of any consent of Riggs. But a more satisfactory answer is· that the condition of the assent was wanting, which was that the levy should be in recognition of his client's mortgage. The·defendant could not to say that he relied. upon the assent thus given, and repudiate the condition on which it was given. It is not conceivable that Riggs assented to the levy without the condition.·· If he did, it would have been suchan open betrayal of his client's rights as have deprived his actofany quality of agency. Second. It is claimed that there was testimony which warranted the conclusion that Mrs. Smith was a silent partnerwith her husband in the business,and that, if 'so,tIle goods were liable to be seized on the writ against him; and authority is cited to the proposition that when go()ds ha.ve been sold to a copartnership which inoludesa silent partner, not known to the seller at the time of the sale,. the writ against the known members Will authorize the seizure of the entire property in the partnershipgdods;'and that the silent member is estopped from making any claim to ownership, and from objecting to the seizure,on the ground that he was not.made party to the suit. Lindl. Partn.§§ 482, 483, and notesj Pars. Pal'tn. 290, 291. But here there was nothing in the writs, nor in thejudginents, nor indeed in any part of the records, to show that the suit was against any partnership, nor against any other than Smith as an individual merely. The case of Inbu8ch v. FarweU, 1 Black, 566, cited for the defendant, is not in point. There the suit was one professedly against a partnership. It appeared to be so on its face. The court held that the plaintiff, having discontinued as against two of the three partners because they were not in the jurisdiction, could take judgment against the third, and that execution thereon could be levied on partnership property. It is easy to see how Mrs. Smith might be estopped from claiming she was a partner, when she had allowed her husband to use the property as his. own, and when heraasertion of a claim upon it would disappoint creditors who had become such while the appearances held out were tpat the property was that. of the husband. But if she is estopped from claiming that she was a partner, and so entitled to an interest, she ought notto be estopped from asserting that her husband was a debtor to her, if such was the fact, for her actual advances to him as a loan. .I
762,
FEDERAL' REPORTER.
ciUlnot find the elements in the case necessary to create such an estoppel. She has not, in such case, helped to deceive anyone, more than in the case of another person who might have loaned him money without recorded security; and, of course, it cannot be pretended that there would be an estoppelin the latter case.. The argument amounts to this: that Mrs. Srpith is estopped from saying she was a partner, because her conduct denied it; and she is estopped from saying she was not a partner, because in truth she was. If the estoppels work both ways, she was in a dilemma, from which there was no escape but sacrifice. But while it has been plausibly urged, I do ,not think there were any facts in the case which should prevent Mrs. Smith from obtaining satisfaction for the advances she h8.d made. They never ,claimed to be partners, and do not now. The defendant's ·claim that she was, is founded upon evidence of some loose and uncertain understanding between them that she had an interest in the goods to the extEint-<9ftheadvances, and that they shared the profits in ,someway, but in what proportions is not shown. My opinion was find is that there was nothing in the testimony which wouldwatrant'tbe jury in finding that the husband and, wife were in not amounting partnership. ,It ,was a vague recognition of an to a legal one,'nor having any defined scope or limits, but a sort of moral lien for the amount of the money she had permitted her husband to use. If, on such testimony, the jury, should have found a partnership, such finding 'must have been set aside. It therefore could not properly be submitted to them. Improvement Co. ,v. Munson, 14 Wall. 442; Schofield v. Ohix;ago, etc., Ry.,. 114 U. S. 615, and cases cited at page 619; S. O. 5 Sup. 1125. Finally, it appears to me that the verdict cannot be'said to be con" The preponderance of the evidence, trary to legal justice in, went strongly ,to: prove that, having constructive and· actual notice of the plaintiffs' mortgage, the defendant proceeded in spite of it,and chose to make his levies, and take and maintain possession in disregard of it. Under the statute,he could have seized the property subject to the mortgage, and kept possession as long as .necessary to appraise and inventory it, and then have restored possession, if required, to the mortgagee. How; Compo St.§7682; Bayne V. Patterson, 40 Mich. 659; King v. Hubbell, 42 Mich. 597, 603; S. C. 4 N. W. Rep. 440; Wood v. Weimar, 104 U. S. 786. The mortgage was prima facie valid, and if the sheriff felt willing to Mt upon the claim of the parties whose writs he hud, that the plaintiffs' mortgage was fraudulent and void, he could, as he ought to, have called upon those parties for indemnity. How. Comp. St. § 7711; Smith V. Oicotte, 11 Mich.'883. If he faiiedto do this, it was his own fault and nl3gligence; and, 'while he is to be commiserated for his folly, he isin no situation to ask that the consequences of his proceedings should be visitAd upon others.' Of course, the defendant is not liable for opeying the mandate ,of the court in turning over the goods to the receiver.Notwithstanding the law was void under which the court took that action, its order, remaining unrevoked, was obligatorJT upon the sheriff, and he
HOSPES .". CHICAGO, M. &: ST. P. RY. CO.
763
could not gainsay it. Wall v. Trumbull, 16 Mich. 233, and the cases there cited; Nor was he liable for the loss by fire, unless upon the ground that his wrongful act brought the goods within its reach, for it is not'shown to have occurred through on his part. The conversio1l; if.it took place, was considerably prior to that time, and the rights of the parties had become fixed. I am therefore of opinion that the verdict of the juryup()n the facts ought not to be disturbed, and that the judgment is in accordance with legal right. The motion must be overrUled.
HOSPES tI. CHICAGO,
M. &; ST. P. Ry. Co.
(Circuit Cour",D. Minnesota. February, 1887.) CAJmIEll8-PASSENGER TRAVELING ON A PASS, INJURED.
Plaintiff was traveling on a railroad on a free pass, and about to enter a car, when the door was suddenly closed by the porter of the car, with such violence that he was thrown down, and injured his knee. Held, the railroad was bound to exercise a high degree of care for the personal safety of plaintiff, though he was traveling on a pass, but there must be reasonable proof of negligence. Proof of the mere fact that plaintiff was inj ured on the train by the door being shut against him does not, of itself; amount to negligence, where the carriage was gratuitous.1
This action is brought to recover damages for personal injury caused by negligence as alleged. The plaintiff is a citizen of the state of Minnesota, and defendant is a corporation organized under the laws of the state of Wiscopsin. The plahltiff was traveling upon a free pass, upon the back of which was printed, substantially, the following indorsement: That the plaintiff accepting this pass, in consideration thereof, agrees that the company shall not be Hable for an injury to the person by the negligence of its agents, or otherwise. Plaintiff testified "that he was passing from the dining car into one of the sleeping cars in company with other persons, all of whom had a right to be in the sleeping car, and that immediately after the rest of the party had passed into the car, he, being the last one to cross the platform, raised his foot to place it upon the threshold of the door, when it was shut with such violence that a blow upon his knee threw him back across the platform of the car, onto the railing, and broke the skin of his knee." He further testified" that, in conversation with the porter of the car, had with him immediately, the porter expressed his regret at having shut the door upon him; and a short time thereafter, in another conversation, stated that it was a wonder that he was not killed, as it As to the liability of carriers towari!s those t!aveling on free passes, see Camden & A. R. Co. v. Bansch, (Pa.) 7 Atl. Rep. 731; GrIswold v. New York & N. E. R. Co., (Conn.) 4 Atl. Rep. 261, and note; Waterbury v. New York, C. & H. R. Co., 17 Fed. Rep. note, 674; .A<,nes v. Milwaukee & N. R. Co ,<Wis.) 30 N. W.Rep. 282; Lawson 1'. ChIcagO, St. P., M. & O. R. Co.,' (Wis.) 24 N. W. Rep. 618, and note.