technicalliability'against them" for not ,giving the security which they had agreed to give; but, as has rbeen already said, that did not change the character of the principal indebtedness, and did ,not make it an indi'vidual debt i-nateailof a partnership ,debt. The theory of'the declaration: is in accdrdance with this It does not proceed upon a possible te.chnicalliability against the bankrupts individually, but upon the original indebtedness on the two indorsed notes. The declaration alleges that, while thebanktuptsdid notcinake the conveyance which they had agreed, it would' have been useless if they had, because the propertywhich was the subject,Clftbe agreement was'incumbered to its full \falue; and therefore would not lin any: event have been available as a security to :the plaintiff. LOOking at this case in its general sCope and bearing, as it appears by the faetiiflet forth in the decltl.ration, and consideringthevariou8 equities ofthe individual creditors of 'Dobschutz, and ,the oharacter of the debt due to the plaintiff. I think that the decision of the district court wilsrigbt,and that the' plaintiff: ought not to be permitted to prove the claim $eNorth in the declaration against the individual estate ofDobtichutz,' rand therefore -tbatithe demurrer to the deolaratioD 'UlWlt be susI" ·
TARSNEY 11. TtmNER.
(Oiriuft own-E. D. MiCMgan.Ootobel' 11,188001 '
AND Wma." . ' , ,When, by'dit:eotion of a wife, the rent. of her separate estate are paId to her "husband with the understlindillg that he wtll: invest themfot her benefit, thi8 'ore8utJicient to con8titu,te a valid oO,Aslderation for Jl 8ub8equent deed frolP , ,ate8 ' hilP to her, a8 ap;ain8t the olailP8 of other creditors.' '9.'S..(JI[I!I:'-B,1i:AnINcf CRBDtBIIJI'rY OJ' WITNBS8. When a party who a88ail8 a conveyance from hU8band to wife, a8lPa4e in fraud of ore.Qitor81 Co,118 the qU8band ap.d wi1e, as witne88e8 qn.d, read81;heir , deposition8 11 cOOrt, he therebyvouohes for theit-oradl billty. and eannot. be heard, in argulQent. to ,que8tion thlli" veraoity", ,'
," J ' ! , ' , ; '
In Bank1'upto,. Bill tQ ,eet ifrn.udulent Wimll'l"e:t-ilff'apll'l", for ' " Camp e:t- Br()()lesandGrijfi". e:t- Dickin8O'll., for defendant. 1873" Hemy Turner'and wife took uptheirresidence iti: East:Saginaw. 'They were apparently in easjtcircumstanees. He soon tlnarea:>fter ,acquirtetl title: to, property, real and personal, worth $50,OOOp'b'ut'by severalinstrumentsbeafingdate fromthe:13th of March ofIJecember; 1877 ,inClusivejhe conveyed,the 'same to deto fendant; hUl'wife, reciting :anaggl'egate: 0[$58,365., On the 31st;af August,. 1878 ,-eight months· and, a' haliflafteutheexecution -of.the lastlof'sai«r canveyances,,-ho :filed-a petition .in the' district court
for this district, praying to be allowed the benefit of the bankrupt law, and was accordingly in due time adjudged a bankrupt, and complainant was appointed assignee of his estate. His liabilities as proven amount to $1,700, and his assets to $191.50. The assets being insufficient to pay the debts, complainant filed this bill for the purpose of having said conveyances annulled, on the ground that they executed without consideration, .and with the intent to hinder, delay, and defraud creditors; The defendant has answered, explicitly the alleged fraud, and affirming that said conveyances were executed in good faith, and for the considerations therein recited. The issue is therefore one of fact. There is no positive evidence of an actual fraudulent intent in the execution of these conveyances, or either of tJJem; but it is insisted that there are badges from which the fraudulent intent ought to be inferred. A badge of fraud is anyfact calculated to throw suspicion upon the particular transaction. badges of fraud are not conclusivej they may be explained. Has such explanation been made in this case? In this regard np proof has been otfered except the evidence of the defendant and her husband. They were called and examined by the complainant. Their examination consumed four days. They were asked a great many qUestiOllS, pertinent and impE'rtinent, collateral and frivolous, but their answers, if.true, clearly disprove complainant's case. They say the dej(mdant owned a separate property in China which yielded an annual rent of 85,000, which, by her direction, was paid to her husband; that he used this fund so paid to him to pay for the property (or a portion of it) in controversy, and took the title in his own name; that in this way he became her debtor, and that he honestly and in good faith made the conveyances assailed by this proceeding in liquidation of his said indebtedness. The complainant, however, after thus taking and reading the depositions of these witnesses, contends that they contain discrepancies and contradictious which cannot be reconciled, from which he deduces the conclusion that their testimony is false. Is he at liberty to thus assail the integrity and truthfulness of his own witne!'sE's? He not only took, but read, their depositions on the trial of the case, and thereby vouchE'd for their credibility. But he was not absolutely concluded by their evidence. The courts recognize the possibility of surprises in such matters. One may without fault examine an unworthy and unreliable witness, and afterwards discover that he has been duped and imposed on. He is, therefore, not concluded by what the witness may say. He may show by other evidence, if he call, that the facts are otherwise than deposed to by such witness, or, as in this case, where the evidence is in' depositions, decline to read them ou the hearing. But he will not be permitted to impeach the reputation for truth, or impugn the credibility:: of his own witneRs. Greenl. Ev. pp. 442, 443; and 2 Phil. Ev. (4th Amer. Eu.)pp. 982,983. Nor will he be permitted, by argument based on the assumption that the witness is interested against him, and is disbonest, to destroy the eflectwhich the law requires the court to give to evidence (as against the party otfering it) voluntarily adduced· by a party to a cause. If complainant believed .the depositions of these witnesBes,
ashe now contends, to be untrue, he ought ndt to have read them. If false, why offer them in evidence? What purpose could they subserve to be firstread and then argned away as being untrue?, The absurdity of such a practice is obvious. To tolerate it would but bea waste of time. Having introduced the depositions, complainant is bound thereby, unless there is other proof in the record showing the fact to be otherwise. There is IlO such proof, and it .ollows thai cbmplainant is not entitled to a decree on the ground that the conveyances mentioned were made to hinder and defraud creditors. But complainant urges another ground of relief. He insists that, conceding the testimony of these witnesses to be true, he is entitled to a decree. They both adinit that the rents realized from defendant's separate property, which constitutes the' consideration for the conveyances attacked, were paid' to the husband by the wife's direction and request; Rnd thereupon it is contended that "when a married woman, living with' her husband, consents to and permits her husband to receive the inC'ome of her separate estate," the estate thus received "becomes absolutely his, alld that he is not answerable to her 'for it," and that theteceipt of such income" is not a sufficient· consideration to support a' conveyance from the husband to the wife," as against his creditors, unless there is an agreement by hinI "to repay or invest the same for her." We concur in the proposition as stated; but we think 'the evidence (if the testimony ofthe witnesses lIlentioned is to be received as true) brings this case within the exception. The rents realized [rom defendant's property were by her direction paid to her husband, but it was so paid upon an "understanding" that he would invest the same forhei' benefit. This understanding was repeatedly recognized by him. He thus became her debtor, morally and legally. His obligation to account was enforceable in a court Of conscience, and the'conveyances made in discharge thereof are supported by a valid consideration. Complainant's bill will be dismissed,with costs.
F. S. &G.
(Circuit Court, W. D. Mi88oUri, W. D. May, 1880.)
MASTER AND SERVANT-DUTY TO EMPLOY SKILLFUL FELLOW-SERVANTS.
A company employing helpers to its blacksmiths is bound to see that they are, reasoiJ,ably skillful in that work; but this duty is discharged if the foreman em· ploying exercised ordinary care therein. .
A blacksmith, injured by the careless blow of a skillful helper, cannot. recover. from tl:l,e;;r. commp.D master, unless the helper was habitually careless,aJ;ld that fact was known to the master, and not to the blacksmith. ' . A servant, injured by a mere accident, incident to the. work in which he is employed. cannot recover from his master.
SAME-AoCIDENTS..;,;,RISKS OF EMPLOYMENT.
Action for damages for personal injuries.