GETJSHENEN, Assignee, etc., v. HARRIS and others.1
(Circuit Oourt, E. lJ. Wiaconsin. February, 1886.)
SET-OFF AND COUNTER-CLAur-DEMANDS NOT IN SAME RIGHT-MALICIOUS PROSEOUTION OF SUIT BY ASSIGNEE FOR BENEFIT OF CREDITORS-REV. ST. WIS. §
2656. In an action by an assignee for the benefit of creditors, appointed in another state, to recover the purchase price of goods sold bY' the insolvent to a merchant in Wisconsin, damages resulting from the maliclOus prosecution of a former suit for the same cause of action, before the money was due under the contract, cannot be made the subject of a counter-claim under Rev. St. Wis. 1878, § 2636.
At Law. Markham lt Noyes, for plaintiff. Flanders lt Bottum, for defendants. DYER, J. The plaintiff sues to recover the amount of an alleged indebtedness for goods and merchandise sold in October, 1884, by the tirm of Henry Levy & Son, of the city of New York, to the defendants, a firm doing business in Milwaukee under the name and style of L. Harris & Sons. The complaint alleges that on the fifteenth day of December, 1884, Levy & Son made a VOluntary assignment of their property and assets for the benefit of creditors, under the laws of the state of New York, and that the plaintiff was constituted their assignee in the instrument of assignment, and, as such assignee, became vested with the demand in suit, and entitled to sue for and recover the amount thereof. The allegations of the complaint are admitted by the defendants, but they interpose a counter-claim, in which they allege that t,he goods and merchandise in question were sold to them on a credit of fonr months, from December 1, 1884; that before this credit expired the plaintiff bronght an action against them in this court upon said demand; that the issue in that case was whether the demand was due when the action was commenced, and that on the trial of that issue there was a verdict for the defl3ndants. It is further alleged that the prosecution of that suit was malicious, and with. out probable cause; that the defendants sustained damages by reason of the wrongful conduct of the plaintiff in the way of impairment of credit and cancellation of their orders for goods, and those damages they now seek to counter-claim against the plaintiff in this sec.ond action to recover the amount of the plaintiff's demand against them. This counter-claim is demurred to on various grounds, one of which is that the cause of action stated therein is not pleadable as a JounteJ."oclaim again6t the plaintiff. The statute of the state provides (section 2656, Rev. St. Wis.) that where the plaintiff is a non.resident of the state, any cause of action
Heported by Robertson Howard, Esq., of the St. Paul bar.
GELSHENEN V. HARRIS.
whatever, arising within the state and existing at the commencement of the action, may be the subject of a counter-claim in favor of the defendant, but the counter-claim must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment
might be had in the action.
The plaintiff sues in a representative capacity. In legal effect, he sues as trustee of the creditors of Levy & Son. It is true that in the same capacity he instituted the previous suit; but if he brought that suit maliciously, he did so in his own individual wrong; and if any injury resulted to the defendants, it was an injury flowing from the individual act of the plaintiff in instituting and prosecuting the suit If the cause of action set up in the counter·oJaim in fact exists, I think it is clearly one against Gelshenen personally, and not in his repl,"esentative capacity, as assignee or trustee. The estate he represents is 110t chargeable with the consequences of a malicious wrong he may have committed, unless his cestttis que truBt participated in the wrongful act. The demand, to reCOVel' which the plaintiff sues, is part of the estate of Levy & Son, and belongs to ttl'" creditors of that estate, and is being collected by the plaintiff. as assignee, for distribution among the creditors under the assignment. The plaintiff had no authority, by virtue of his representative character, to incur the responsibility, or subject the estate to the liability, alleged in the comiter-claim. If, in the prosecution of the previous action he was actuated by malice, and had no probable cause for bringing the suit, he committed a wrong personal to himself, and by which he, not his cestuis que trust, or the estate he represented, incurred liability to the defendants. . The proposition seems so clear that authorities are not needed in support of it. But upon this question, Westfall v. Dungan, 14 Ohio St. 276, is quite in point. It was there held that, in an action by executors for the recovery of the purchase money of land sold by them as executors, the purchaser could not avail himself of false and fraudulent representations made by the executors at the time of the sale, in respect to its subject-matter, by way of counter-claim; and that t.he purchaser's remedy, if any, was against the executors personally. Cases cited in the opinion of the court, and there commented on, also have strong application here. If the wrong complained of by the defendants has in fact been done by the plaintiff, then the defendants ought to bring their action directly against Gelshenen, so that innocent parties who are interested in a speedy settlement of the estate will not be delayed by his wrongful conduct. This was the principle enforced in George v. Bean, 30· Miss. 151, where fraud was charged by a purchaser of property upon an administrator who had made the sale. '1'he demands here involved are not in the same right. The counter-claim is not one in favor of defendants, and against a plaintiff, between whom a severa.l judgment might be had in the action; and for the reasons stated,.
which it has not seemed necessary to elaborate, I am clearly of opinion that the demurrer to the connter-claim should be sustained, and that the plaintiff should have judgment.
UNITED STATES v. JOHNSON and others.
(Oircuit Oourt, S. D. Georgia, E. D. November Term, 1885.)
A conspiracy is the corropt agreeing together of two or more persons to do, by concerted action, something unlawful, either a8a means or an end.
8.UUll-MERE PRESENCE WITHOUT PARTICIPATION.
A mere presence on the occasion of the conspiracy is not sufficient to make one guilty. The person must incite, procure, or encourage the act, but if a person joins the conspIracy at any time after it is formed, he becomes a conspirator, and the acts of the others become his by adoption. 1
A reasonable doubt is not a mere guess-a mere surmise-that one may not be guilty of what he is charged; it is a doubt that you may entertain, as reasonable men, after a thorough review and consideration of the evidence,-a doubt for which a good reason arising from the evidence can be given. 1
In cases of doubt, good character is essential as a means of defense; but. where the charge is absolutely proven, it can be of no avail.
SAME-TRIAL-INSTRUCTION-SUMMING UP THE EVIDENCE.
It is the settled practice in the courts of the United States for the presiding Judge to sum up the evidence. and to call the attention of the jury to its salient and important points. This is done for the assistance of the jury, and it is not intended in any manner to derogate from their right to find the facts as they believe them to have been proven.
Where the indictment charges that the officers of the government were fired upon while searching for an illicit distillery, and the proof shows that the posse, at the time of the firing, had just searched a swamp without success, and were on their way to a certain man to get information by which they hoped to continue the search with more success, there is no variance between the allegation in the indictment and the proof. Where the indictment charges that the conspiracy is to injure and hinder a certain deputy collector of internal revenue in the discharge of his duties, by firing at hIm, and the proof shows that the firing was directed at the posse to which he belonged, and of which he was in command. he being present. there is no variance.
SAME -No VARIANCE.
Indictment under Rev. St. § 5518. S. A. D.lrnell, U. S. Atty., and Fleming G. Du Bignon, Special Asst. U. S. Atty., for the prosecution. Denmark «Adams and W. Oarswell, for the defense. SPEER, J., (charging jury.) In the regular and usual progress of investigations of this character, it now becomes my duty to give you.
and note 442.
discussion of the question of reasonable doubt, see U. S. v. Searcy. a.nte, 485,