132

FEDERAL .REPORTER.

Dow v.

WELLS.

(Oircuit Oourt, D. Iowa, O. D. January 18,1882.)
NEW TRIAL-VERDICT, WHEN SET ASIDE.

Where, in an action for the possession of lands, the plaintiff showed a clear paper title, and the defendant's patent was shown to establish only color of title; and any question as to the priority of the plaintiff's patent could be established by further proofs; and the verdict of the jury was general, and was proLahly influenced by their sympathy, growing out of the fact that the pa,tentee under whom the defendant claimed was in some way connected, as heir or otherwise, with a soldier who fought in the revolution-a new trial was granted.

Brown cf: Campbell and W. S. Clark, for plaintiff. Parsons d; Runnells, for defendant. LOVE, D. J. In this case the plaintiff exhibited a clear legal title to the land in controversy. There could be no reasonable doubt of the priority of his patent; yet the defendant stoutly contested the plaintiff's paper title, and very possibly induced the jury to believe that the defendant's patent was entitled to priority. If the jury did so believe and find, the plaintiff is clearly entitled to a new trial on that ground alone. If the defendant had conceded the plaintiff's patent title and taken the verdict of the jury upon the question of adverse possession alone-a question eminently fit for the jury to decide-the court would feel disinclined to interfere with the verdict. But the defendant, having assailed the plaintiff's title and stoutly contended for the superiority of his own patent, and the jury having found a general verdict, it is impossible to say that the jury did not find against the validity of the plaintiff's patent, and give their verdict upon that ground. Under such circumstances, I think, the court ought not to give the defendant a judgment upon the verdict. The plaintiff ought not to lose a clear title to the land by a single verdict founded possibly upon a clearly erroneous view by the jury of the plaintiff's paper title, more especially where the losing party has no appeal. It seems to the court that any question as to the priority of the plaintiff's patent could be removed by further proofs, and the jury be left in a future trial to pass upon the sale question of the defendant's rights under the statute of limitations; the defendant's patent being shown to establish color of title. Alone it could certainly be established beyond question that the plaintiff's patent was first issued and recorded. This would take out of the case a matter which may have influenced

IN BE SCOTT.

133

the mind of the jury; namely, the claims of the defendant upon their sympathies growing out of the fact that the patentee under whom the defendant claims was in some way connected, as heir or otherwise, with a soldier who fought and suffered for his country in the war of the revolution. As this fact was predsed with great earnestness and force upon the jury, they may have been influenced by it. It is needless to add that a party has a right to have his legal rights determined in a court of justice without reference to what auy one under whom his adversary claims performed in the revolution. The verdict is set aside, and a new trial granted. It is further ordered that the cause be assigned by the clerk for an early day of the next term.

·

In

t'6 SCOTT.

(District ('ollrt, D. Oalifornia. January 31, 1880.)
1.

BANKHUPTCy-CONCEALMENT.

The concealment contemplated by the statute is a wilful and fraudulent concealment, and not a mere omission through mistake or accident.
2.

SAME-PREFERENCE.

If a bankrupt devotes materials to an inconsiderable amount, which he had procured for family use, to secure a creditor for a small debt, the act caullot be deemed a fraudulent preference.

Daniel T. Sullivan, for bankrupt. Wright If; Hamnwnd, for opposing creditors. HOFFMAN, D. J. The objections relied on at the hearing of this case were: 1. That the bankrupt obtained a considerable sum of money from one of his creditors on the fraudulent pretence that he would give his note therefor indorsed by one Moss, which indorsement he failed to procure. The proofs fail to support this objection. The bankrupt undoubtedly promised to procure the indorsement referred to, but he made this promise in good faith, and with reasonable ground to believe in his ability to fulfil it. The parties chose to furnish him the money without exacting the fulfilment of the promise. He made no false pretence within the meaning of the criminal law, for he merely undertook to do a certain thing in futUTO, and, so far as appears, he would have redeemed his promise had not subsequent events induced the party on whom he relied to change his mind. Moreover, the fact that one or more of his debts has been created by