w"re so limited that it become legally bound for any additional lum, either upon an open account. or as maker or guarantor of these notes. The section of the statute referred to is Dot ambiguous, and I find no warrant for the construction of it contender,l for by counsel fOI' the plaintiffs. I cannot assent to the proposition that congress has, in fixing a limitation of indebtedness, intended to exclude from the computation thereof liabilities upon notes of circulation, accounts for deposits, and fOl:moneys collected, bills of exchange drawn against actual credit, and surplus accumulations belonging to stockholders, and to authorize the incurring of liabilities for other purposes equal to the entire no surplus whatever as a margin for safety or basis for confidence. The insist that the violation of the statute by contracting debts in excess of the limit is not a defense available to the bank or the receiver who represents it. The receiver, however, represents,not only the bank, but also all of its creditors and the government of the United States as well. If the govermuent can, by any proceeding, enforce this law, the receiver .can in this suit apply its provisions for the protection of the innocent depositors. Furthermore, there is no ground for estoppel, even againstthe bank. Contracts, of corporations creating debts in excess of limitations fixed by their charters are void, and such debts are not 001lectible by law. Crampton v. Zabriskie, 101 U. S. 601; Davie88 00. v. Dicki1l8O'T/.,1.l7U.S. 657,6'Sup. Ct. Rep. 897; Litchfieldv· .l:!allou,1l4 U. S. 190, 5 Sup. Ct. Rep. 820, and 7 Amer. & Eng. Corp. Cas. 378, note. men are presumed to. the financial condition of corporations to whom they give credit, and, if one voluntarily becomea a creditor for an additional, amount after a statutory limit ,has been reached, his position in a court of law is no better than that olone who knowingly becomes a party to an illegal contract. 15 Amer. & Eng. Ene. lAw, 1138. Motion for a new trial denied.
of 4tlJ')6az". E1,ghth. oircuit.Hay 2S, 189J.) .
Jl!:aO:aS-DISQUALIJ'ICATION-PJUOR SERVICB AS TALESMAN.
th'der Rev. St. 5 812, amended by Act Congo June 30, 1879, 5 2, a juror called talesman is not SUbJect to challenge merely because he has served as a talesman in. another cause in the same court and term.
8.ul:B-.A.noPTING STATB PRACTICB.
Aet Cong. IB72, requiring federal courts to conform to state practice "as near as maybe, " only adopts such rules. of state practice as are not inconsistent with any act of congress upon the Sllome subject; and hence Code Civil Proo Kan I 270, e?-acting that prior service as a talesman in the same court and term shall btl sU.ftlClent .ground for challenge, is not binding on federal courts, It being other. WIse prOVIded by Rev. St. U. S. 5812.
.. OPDlIO.BVlDBlWB-VALU. OJ' GOOD&
The pur<:haser of a stock of goods is competent to testify as to its value \0 a. aotionagamst a J!1arsh!11 for wrongful attachment, where it appears that the hM aSSIsted in taking the invoice at the time of the purchase, and had been sellmg from the three days at the time of the seizure, and sUbaequentlT BOld the balance not seIZed,
v, ca,ti'bn 1M "a. '.J,ta.1Je ooll.\'tll.hat a,tter thl:\' ..
lb\',e.' the gOod.S st,ill' retMlllld by' th.e .p.ll.r.",' J!.im price
' ..... , ...... , . '
;} ,11.e" aiita <the
, . pose '&t ; iti:b
gpods tp.e .sale, Q:lBy be. r!lb1-lttal, for the pur..,Of tliaf.1;hevBluEl·bf·'sliClIl goods was 'so lI$ to show wautQf.gQOd,taJ.tbOIl tho
'I _. , ' : ··
T. J'BMJI1:ULU1', ,i:NOWJ,.IIiDGIl-INSTKypTION· .'" Un a: qnlleitilu6s"to whlltber' tbepu:rehase from an insOlvent: debtor for $6,000 of
'·. s"'ClI .()f: goods involeeq IOtf12;OOO wall f,!.l!fraud of crel1ito" Is to cbarge the tPe knqwledgl:!9 f lolle vendor'S fraud must 1)e s!1'own or QtherWL88, 'WIthout stating that, if tM' circumstances "['W'8N sU'G1'1 'iIII!IlCtlputthe IIwqhaser oninquiry, ,be WOUld: be ,with all the
. b,islo'<M\9';III19Qk.;t.o a Jh\\!Mto\:lll:nt suecl. for the price, and" at. IItol1 as tb,e ,property.!'f tbe on tbe ground th.at bis sBl. thereofl'wi!t In.· fraUd' of'cted1tors.·;'Hi!iiIJ.·that,·ln an'aoii()uby,tbe third person "ag"'in._ WjlS, the 1>1,1r.' .. fraudUlent, ,as:by tbe for.!p of 11111 he had ,J 'BrmeCl title; 'al1d lobe was· whetlie1' .'liere was suoh fraud ) Mm,' ., ,
' . .
. ""","j ;'::.... ': .;'" ,. .. , j" Oolliilsand W. H. Bffitch,·trading &: Ii.,Wnlker, James McMurray, Howard, and for. Verdict and .. ... Reversed. Kltne,f(wpl!unhfl's In .error. . C. S. Bowman and e.Bitchet, for'defehdknts in error;: Before CALDWELL and SANBORN, Circuit Judges, and SHIRAI, District Judge.
StateSfot the DistriCt of
SHIRA8, District Judg,e·. From the record .9ause it appears that in the spring of a¥!d-'previ'ous 'thlfteto,oQe' Henry Cannon was engaged in ,B?9pll1\ng insolvent, he sold entire st,)ck of goolIs to firm of 001h118 & Bretch, they to pay therefor 50 cents ohthe dollar of the cost marking. The at fotw9ich the purchasing firm gave thel1' oheck,·oo"the sum of..$(3,OOO. E. H. Van Ingen & Co., creditors of said Cannon, broilghfan1lCltion, the distrle,tQrKansas, for: the and caused the writ upon part Qfthe stocldransferred to Collins & Breroh,,'who'tberenpbtl s\ledthe for thedam.i /l'hE! case w/lStdell, i,i" ages caused them by such taking thecirellH"oourLfol' tbedistrict of Kansas, and a verdict and judgment whien: the present writ of' error wMeued out from this cC)Ul1t.
. The'principal :queation.discussedby counsel in-support ofthe'err6rs alleged arisel'l upon th.e ruling; of tbe,tcilli1 court in overruling a challenge made for cause by plaintiffs in erro,rJo,a juror called .Rsa the ground ,of challenge being, tbat thei pellsonso caned had, during the same term of said court, served as a. talesman on the triatof another cause, and was therefore subject to challenge under. the provision of ,section 270 of t.he Kansas Code of CivilPt;ocedurej;which enacts that service as a taleS· the trial of any cause in the same court and term is gro'.1nd·for challenge. The question for, decision is whether this section of the Kansas statute is applicable to cases pending.in.a fedeml court of that state. The is that the aot of congress of 1872" makes the state practice the rule for the guidance of the rederalcourts. lfthere was no legislation by congress upon the subject-matter, the argument might be conclusive; but it is well settled that the practice act of lR72 does 110t put in force til" statestatuhis inrega.rdto matters- touching which congress has legiS'lated. In, that event(courts of the United States are bounr! to look to the act of congress as tbeir guide, and the provisions of the stat" law are 113 U. S. 713,5 Sup. Ct., deemed inapplicable. Thus iIi & parte Rep. 724, it is. said:. "But the hct of 1789, which made the laws. or the states rilles of decision, 'QLherwise provided by the conslitution, made an exception .wht'oit treatirs. or statutes of the Dnitl'(} Statt's.' The act of 1872 evid"ntly conthe courts to con I prm to state. prae. templates the .same exception by lice as neal' as may be. No doubt it would be implied. as to any act of congrt'ssl\f1optlng state practice in gener'alterms. tbat it should not be inconsistent withiany expresR statute of the United lStatl's on the same.subjl'ct. There acts of c\>ngrpss prl'scribinK modes or procedure in the circuit are of the.United lStates variance with the laws of the stlltea and in wldeh the courts are held, Among these are the modes of impaneliug jurors, tllPiI' qllailticatlOns,thenullluer of challenges allow,·d to "Ilch party. ilr · ... We think it may be furthl'r added, in the same direction, that if congress has ll'glslatPd 00 thissuuject, and prescribed a definite rule for the government of its own courts, it Is to that extent exclusive of any legilllatioD of the states in the saint' matt!'r." Section 812 of the Revised Statutes of the United States declares that"No person shall be summoned as a juror in any circuit or district court moret/Ian once in two years, alld it shall be sufficient cause of challenge to any juror', called to be swurn in any causa,. tlutt he has b"en sUlumoned and att!'nued said court as a juror at any term of !laid court held within twoyearll prior to the time ot 8uch challenge." By the provisions of section 2 of the act of June 30,1879, it is enacted that no person shall serve a.s a petit juror more tha11 one term in any 011e year, thus shortening the time named in section 812. Section 812 declaresthat "it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned,» etc.; thus includ. ing all persons called to be sworn, Whether they are members of the regular panel or are called as talesmen. Thus we find that congress has by legislation determined when a person called to serve upon a jury may he challenged upon the ground of previous service in that capacity, and the rule prescribed by the state statute cannot, therefore, be made appli.
cable in :tRe. federal courti''':A.s it is :not claimed that theJuror ,who was challenged,;: had, been' summoned im'd attended at an)' term prior to that at called as a talesman, no ground ofchallenge existed un.. der the ;provisionsof the statutes of tne United States, and the trial court did not ;the challenge in' question. ,Sevellal :assignments of'error! are based upon the fact that Collins and Bretch, tha"plaintiffil' in"the action I were permitted to testify to the value oftha'goods taken bytbe marshal; the ground of objection being that it did(notlsppear! that:they were qualified by previous experience to testify;ooth:equestionof\Tl!1ue. Both ,witnesses stated that they knew the character oNhe good.s-taken, and had been selling from the stock for a few days before the seHmre by the marshal, and thoughttliey knew the fair value thereof. Fromithe'evidence it appeared that these parties had aiided in tJaJring the iuvoice;of the' goods II.t the' time the purchase. '±'hey had been in possession, selling the goods, for three days before the levy byth"'m'8rshal, and th.ey had sold outthe balance not taken under the writo! attachinent, 'aoorhence it appeared that they had some means of knpwirig, the value: of lhe'goods. Their testimony was therefore competent, the jury being the judges of the weight thereof, and the trial court did' l'lQtjerr in admitting the same. If was"sh6wn by the e'ridence·,that; after tha levy ofthe attachment by the mAtshrtl,certain other credit6rsof Cannon had sued out a writ of the sanie up'op remainder seized ,b,y ,had replevied thesegQods in cQurt, stating in an affidavit filed in such case that the goods s()replevied were worth $6,000; that in the trial court juugmentin the replevin suit was rendered iIi'fa.vor of Collins & Bretch. ",;",:!. . '" ' , .' In the case, at bal offered evi<lencetending to show ,n'q ;l.\ppeal had:oi;, ;\YQ\1-i<i be taken,from the judgmellt thus reJ:\dered iQ Iltate,court.n) Upon, objection the court ruled that such fact was immaterial, and rejected the evidence. Error is assigned on this 'r'p.e argJ;tment in, 'favoroft1}e aqmissibility aLthe e¥idence is that iqf:l,weUsllttled.that"R. 9op,q,fide purchaser of good!! fraudulently sold by an insolvent· debtor is: 'only protected to the extent of the payment made up to the time of notice ofthe fraud by the vendor, anu therefore in thil:FcaE«dt was comp'etent to show that the goods replevied from the sheriff were worth $6,000, and had beenfinally adjudged to be the property ofCollins & Bretch.,' il:11he' prerl:1isedoes not justify the conclusion. If 'the purchase made by Collins&l3retch was valid, or, in other words t if the, were bona fide pur.chasers. forva!ue, they 'became the owners, legally I'ofihelgoods transferred to them, and their interest thefein: canhot ,be limited ,tt> the amount paid by them. Under the rule claimed to bl'l}a.pplicabile to the case; it ranot held that· the bona fide purehaser.forvalue, is not: :the' owner of, and entitled to all the goods purchased !in' easel' receives notice ofthafraud befor-e comthe pri()eilt made, then he is required to pleted fortne the creditorBof the fraudulent vendor.
WALKER tl. COLLINS.'
The facfs of this case did not justify the application of the rule contende4 for, and hence the court did not err in rejecting the offered. It is further claimed that the trial court erred in admitting evidencQ sum had bElen realized from the sale of the goods remaining after the marshal had made his levy, together with evidence of the expenses conn,ected with the sale thereof. The theory upon, which this evidence was admitted that it would throw some light upon thy question of the actual value of the goods sold by Cannon to Collins Bretch. That question was certainly a material one in the case, fOf the adequacy or inadequacy of the price paid was a circumstance to bl\' weighed by the jury in determining whether the purchase was or not made in good faith. The evidence tended to show that the goods sold by Collins & Bretch in the ordinary way of business, and that due effort was made to realize their fair value, and the result thereof wou14 certainly be some evidence upon the question of the fair market of the goods thus disposed of; and, as we have already said, this value was a matter to be weighed by the jury in .determining the validity of the sale to Collins & Bretch. The evidence objected to was introduceq in rebuttal for the purpose of meeting the claim of defendants that value of the goods sold was largely in excess of the price paid, and was not error to admit it. Several assignments of error are based upon the refu!:lal of the court to give a number of requests submitted onbehalf of the defendants. A rad l ibal error exists in all these requests, due to the fact that they are not, applicable to the issues actually on trial bAfore the court and jury. It be borne in mind that E. H. Van Ingen & Co. had not sought to, rescind the sale made by them to Cannon on the ground of fraud prac-1 ticed on them, but had affirmed the sale, and had brought suit to the price of the goods sold, aided by attachment. The issue of fraud on, trial ihthis cause, therefore, didnot arise outof the facts of the made by Cannon of Van Ingen & Co., but out of the sale made by non to Collins & Bretch. No matter how much fraud existed in the pur:, chase made Cannon fromVan Ingen & Co., if the latter did not choose; to rescind the sllle, but on the contrary affirmed it, then Cannon owned. the goods by good title, and had the same right to sell the same as he! had to sell the other portions of his stock. Holding the title thereto,' the sale to Collins & Bretch passed the title to the latter, subject to right of creditors to impeach such sale on the ground that it was in, fraud of their rights. To show the theory involved in the instructions requested by defendants, it is only necessary to quote the third and fifth of the series, which are as follows: "Third. If. Cannon bought the in question, or any part of them, on, the strength of false and fraudulent statements, and then sold and disposed' of the same, .and then used the money so obtained for the same to pay debts' other tban those incurred in the purchase of the goods, then such sal.e would be, in law fraudulent, and the law would imply that it was made for the purpose, of defrauding creditors. It . · "Fifth. If Cannon, by reason of false statements as to his financial stand-" iog, obtained the goods in question, or any part of them, and then sold them
false would not'
or qa,d t" believe, 'for Buch goC)c]s, Bo,oQtainec! by false flahi'''iV-19i.,ta 'be Ill! ttaud' of and Bucb credi tors would bad passed into tbe hauds()f blJnClf,fitle purcbase,:sfoJi. value, withuut:nOtlce;" ,4,!)dkpew:
As :alreadysaid,H Ipgeij&,db'.did a/right to rescind the sale of the ,go,od's .made by but the affirmed it, then the goods so file. of. aud he had the right to make dispositioh thereof thl,lt he might choose. and Ifhe sOld 'the and t.heproceeds ip thepayniellt of debts oWing. b.y him. as a matter of law. be hdd to be fra-udlilent would the fact goods baa obtained byfratl4 Van Ingen & ofCai:Hl,pnto the o(the goods, as is claimed in the fifth . IHe clearly apparent that counsel lor the deftlD4nnts, in all the Rubniitted, mistQokthe issues involved, auitti'eated. thec!1se as thougll Van Ingen & Co. pad the sale made by them., whichis.rioi true; ,and hence 1l.1Ctbe asked lVete',properly refused., and noneof the assignments of error based on the rHuelfl onhe cotirt to give these requests are welUaken. The trial court rightl..r apprehended the th:at involved;, and rightly instructPid tb'atthe. matter at whether the Sale !lnd transfer made lJyCaollon to Collins & Bretchwlls fraudulent and void as to the creditc)t8i ofthe f o r m e r . : ,:... . . . arising 011 the errors assigned is whether the court correctly instructed the jury on question of good or bad faith on the part ()f Collins & Bretch in connection with the purchase maue by them. Thcf ninth insttuctiqu by the court, and excepted to by the defendllnts, fairly presents the questioll. the instruction being as follows: "No.9. Even if)'ollshould tllat it has heen shown by the greater wl'ight of e\'idence that, in thiS sal" to the pla,ntilf of the goods in quelltion,. Cannon intended ,to tlefl'a'Udhis creditorB, as the defendants claim, butthlltthe plaintilfs hadlDoknowledge or notice of such fraud. tlten in that case you are to lind for lheplaintilfsupon the propositions I have explained to you. In other words, torender:thhi !sale Yoill, ootb the seller and buyer must. ha,ve bl>en lI:ctinlC inl:lad ,faith; if the plaintiffs bought from Cannon ingolJd faith, tbl'J' gpudLlt1e, whatever may the intention of Cannon; tbat is, in the ,absence of knowledge upon their part of any fraud or misrepresentations 'made by him...
The evidence fraud on,the part of Cannon, and this instruction. assuming that the jury might find the sale to be fraudulent on plirt of then instructs the. jury that they must find fQr the plaintiffs, if it that the plaintitfs had no knowledge of such fraud; and, further, :that whatever may have been the intention of Canoon, the absence' knowledge upon their part of fraud or misrepre!reiltation on part 'of Cannon 'wOuld validate the sale to them. In the given by the court the jury w,ere further instructed CCtha.tthee.vidence must sp.ow in 13omeway, either by circumstances or
othel:wille.;to Y01.J,r>sausfactiori, that plaintift'sbad knowledge of the fraud.» In our judgment,these hlstructions are misleading, in that the jury must1ul.ve understood therefro.m that to· defeat the sale on the ground'offraud actual knowledge of the fraudulent purpose of the vendor must be brouJl;ht home to Collins & Bretch. True, it is stated that miJl;ht be proved by but still actual knowledge. pro\red directly or circumstaritially, is the criterion furnished the Jury for determining whether the ,vendees could, be held to be partici'pants in the fraudofthevendor. 'The jury was' not instructed that if the purchase was made by Collins & Bretch'under such circumstances as that the purchasers were thereby put upon inquiry as to the purpose8 of 9aunoll. making, the. sale ..f<) ,them, and instead of making inquiry they\\volded doing,so, tht'n. the jury would be jU$tified in holding them chargeable with arl' the due inquiry would have developed. That such is the recognized rule in Kansas is settled by repeated decisions of the court of. that state. Gollober v. ,Martin, 33 Kan. 255, 6 Pac. Rep. 267; Waferv. Bank. 46 Kan.597; 26 Pac. Rep. 1032. See, also,J0nt'8 v. Simpson, 116U.S. 609,6 Sup. Ct. Rep. 538. A full and very ,clear· statement of the general rule 8pplicableto a question of this character is found in the opinion of CALDwELL,J., in Singer v. Jacobs, 11 Fed. 'Rep. 559. The facts of tHe case now before-the court are such that the jUry could not fairly'decide the issue before them unless they viewed the facts in the light of the principle stated, and the court was 'therefore called upon to instruct the jury in regard thereto. The '.>mission to properly instruct the jury in this particularmade the instructions given and excepted to misleading, and therefore erroneous; and, 8S the error touches. vital issue between the parties, the judJl;ment below must be reversed,and the cause be remanded to the circuit court, with iustruc> ,UoDil 1.0 Irant. a lltlW trial.
(CCrcuUCOWI1 0/ AppeaII, Eighth C,,"cui&. Hay lil8. 1_)
A district attorney is entitled to mileage for travel· by the most conven'_t ancJ practicable routes. In the dilK:harge,ol hla oftloial duties,thouBh 8uoh rout.e8 are DOt the routes.
A district attorney Is entitied to mileage from hit place of abode tc) the pl80e of any belorea commissioner, of a person. obarged witb onme, and to his per diem for the examination of suoh person before sucb commissioner, In any case where, in his judgment, It. WaB necessary lorhimiOattend, and he did aotuallJ' atttmd, suoh examination.
I. SAME-DI8CRETION OJ' DT8'I'RTCT A1"rOllNBT.
Where the district attorney actuqlly and nl!l!etl811rfiy MTels from' tlJe place ot his abode to the place for atl examination, before II commissioner. of II person with crWle, in the disl'harge of his official duty/ he is entitled to mileag. for AUCh travell ' notwithstandinl\' such place of exam nation is at the official headgnarterll ot IUch district attorney.