vol. ISO. ,"
Jj] No. -175. '1.' foBIWll!NIsHitlb'r'fu'N.....:CS1BG.'·Xl' Wnrl'ING;
. . 1_)
49 Fed: Rep. 3M, I. U. 8.
uired to I'tllluce ita
,I" . .n, allegl1li sale of .persopalproperty an In. .' stl'tXction' thlit fraud 'Ii tteVe1"preSllltled; but must be proved, IS !lot· reversible error ,-<, ; alBO'to at4te that fraud,lik&: otb,er fact, be proved by clro
·1.:hA.ll'DULlIIN!Il:6oln1lJ!,Ajr6B.....,AOTION TO. SJrr
oJ' CRBDIT<>RS...:.rNSTRUOTIONS. In an action to set aside an assignment the bElbetit of credtiors an instruction ;, duty of to make. suoh an asslgnment ls · stateis, error. Sanger v.Ji'Low, 48 Fed ·,mp.J1511, 4U.·st . , . .
,.'.' '. tr:anBfer a ll0rtiC!n of hlsllx:dperty, at full value. to aored.. 'tttw,"fn'kla1liientOf ··pr&:uls'ting debt,' just, before making a· general assignment .' : ·. fl1'\l1rM6, the of bis a,nd, to :the assignment for :, must be.hown..that the tru. ee was cognizaJit 6! ox: particlpated in the , . I. fryllld,' .:Emer8on v; 'Se/liter, 6 Sup. Ct. R.ep. :981, 11S ·U. 8. 8, foll()wed· ..... B.dIB....lhlliJ'BBENOB.... ' . : . ;_ .. . byMSO:wJl acts make infants ot. tender years . bili'pattl/ere ill.bU:Sfli\<jsll,but, 1'1 be ie ii'ldehtedto them. he'may prefer them In mak· benefit of b,is creiiitors.· , ' . . .'.. '. ,. 1 Io.,anactjon to set jP,llide an assignment for the benefit of creditorsbeoanse the . ., "8ignoi' bad ueetl· a portion of his property in paying a pre-exiBting debt, itis not ';P:!m.eI'W that tjle.lI4lsignor had oo1l,veyed hls entire propert.Y to the same credftol,' at.SO cents ou the Ciollar, whlch' conveyance bad been relilll'DdM'up'Ol) the'adtieedf COunsel,,4nd' the'partiei placed in 8tatu quo, before the of the .. ' : , ,'. · ,'f. Of.J'R09.· . ' . ' : ' n biiltruction that.· the 'burden was. 'on. the. U,signee to. e:rplalll: any diminntion.i.1l .(' of the .allslgAot of the c!lDve,ancewhicb was f8, .that .Qf asslgnmellt w.asl1ghtfully refused; for. although such (act .night tend to show fl'al1d; the assigne8'Qan only be reqUired to account for the "(prOpertY . ....·.. , . : . . of or vl1lueby tbllma'ker of a .note, about to 88sign for tIM ,: 'lJeltilt't)ffhisoredltortl, t() his surety thereOIl,;:lio. enabillthe latter to pay the not!tt "ll',.IJ9t . 'pb,a, fraUdUlent. . of th e, l\Ilsetlll,ll to illvalidate the aBSlgIlIDeJli, . , .. , '
" .'01,) .,'
Q.-GOODIl.TO SBOURB NOTB. '" . ·
In Error to the United States Court in the Territory. Al.'tion by Adolph BaeT, Simon Seasongood, a\:l:lfLewiJ!l Bierman, trading as Baer, Seasongood & Co., against C. C. Rooks, William Rooks, and Agnes Rooks, trading as C. C. Rooks & Co., and Erlmund H. Doyle, intervener. Verdict and judgment for defendants. Plaintiffs bring error. Affirmed. The action was commenced by attachment on a stock of goods in the hands of Doyle, to whom defendants had made an assignment for the benefit of creditors; it being alleged that Buch assignment was fraudulent and void. Statement by CALDWELL, Circuit Judge: C. C. Rooks, under the name and style of C. C. Rooks &: Co., waa ,.ngaged in business as a merchant at in the Indian Terri-
tory. - 'Rooks represented 'to Borne of his-creditors that ,two children he" Was raising, a boy arid a girl, aged' respecti*ly'8and 14 years, were· his partners. This alleged partnership need not be further noticed. In February, 1890, Rooks owed between $23,000 and and had a stock of goods whichirivoiced at cost and carriage between $19,000 and $20,000. At this tidle the indebtedness of Rooks J. McAlester, including the sums for which McAIE'sterwas surety for Rooks, amounted to about$6,500. On the 27th of February, 1890, Rooks sold his stock of goods to McAlester at 80 cents on the dollar in satisfaction of the' 86,500 due to McAlester, who was topsy Rooks the balance of the purchase price for the goods in three equal payments, in three, six, and nine months. The day or day alter this sale was consummated, 1'10Alester was a.dvised by couJ,lsel that he would probably have trouble of kooks, and thereuJlon the sale was rescinded, with the and both pardes placed back where they stood before negotiations were begun. On the 1st day of March, afterwards, Rooks sold and delivered to McAlester, out of his store, goods enough, invoiced at cost and carriage,: to pay McAlester the $6,500 before meritioned. As soon as the goods sold to McAlester were taken out of the storehouse of Rooks, he execnted and delivered a general assignment of all his property subject to execution to E. H. Doyle,as trustee, for the bpnefit of his creditors, with preferences to certain of his creditors, who were named in a schedule annexed. Upon the delivery of the 'deed of assignment the assignee took possession' of the stock of goods remaining in Rooks' storehouse. This deed of assignment was executed before the Arkansas statu te on the subject of assignments forthe benefit of creditors was put in force in .the Indian Territory. On the 4th day of March the plaintiff in error sued out a writ of attachment Rooks, in the name of C. C. Rooks & Co., for. the sum of 8572.59 and for $30 costs, upon the ground that they had sold, conveyed, or otherwise. dli!posed of their property with the fraudulent intent to cheat, hinder, and delay their creditors. This writ of attachment, by direction of the plaintiffs, was levied by the marshal on the stock which Rooks had assigned to Doyle, as trustee, for the benefit of his creditors. In apt time, Doyle intervened in the suit of plaintiffs against Rooks, and claimed the goods attached, as trustee under' the deed of The plaintiffs answered the intervening petition of the assignee, alleging: "That the pretended deed of assignment is fraudnlent and void as to the creditors of the said firm, because the said O. O. Rooks. J. J. McAlpster, and E. H. Doyle. the i!ltervenet' herein. abl)ut the time of thepretenlled execution of the said deed of assignment, the said C. C. Rooks, J. J. McAlester and E. H. Doyle. with 'the fraudulent intent to convert and appropriate a large amonnt of the assets of said firm for the bl'nptlt of J. J. Jl.lcAlester and C.O. Rooks, agreed to and did deliver to the saidJ.J. McAlester a large amount althe /toods and merchandise of said firm. of about the value of $15.0UO. That after the execution ofthll pretended deed of asSignment the said C. C. Rooks. J. J. McAl!l8ter, and the intervener,;E. H. Doyle. With the fraudulent intent to delaY, cheat, and hinder the crpditors of the said firm, and to convert the sallle to the use of the said J. J. MoAlester, took from the said
ltoCkof:gooosmerchandis60f about tbe value of $1.5,000.00, and uelivere!! the,sarpeto the said J. J. McAlester, who converted the same to his own '¥l'.". : , The defendant Rooks traversed the affidavit .for attachment. The issue bnlbe interplea alld the issue. on the attachment "lere ttied, together before a jury, wpo found, bc;>tl;1 issues against the plaintiffs j whothereu pon sued Qutthis w:ri t of error· .IsaaoH. Orr, H.I.. B. Maxey, and G. B. Denison, for plaintiffs in error. G.W.·Paaco, for defendants in. error. . . Before CALDWELL and SANBORN, Circuit Judges, and BarnAs, District .
Ju<;tge.<atter the facts.) The first error assign¢<! is that the eoui"t;r;eft.ised to instruct the jury in writing before arWehava already dec,ided that the court is not required to charge,l!J, cllief in writing.. llaiilroa.d v. Oampbell,4 U. S. App. 133, 354 . . The staterpent is made the,brief of counselfor in error that recordln.this CRse disclOSeS the fact that the ptaip,tiffs ',SUbmitted to the court a series of instructions, and requested give or ,refuse them before the this is an error. :. What t,herecorti dOlils show is that, "the evidence being concluded on. bqtJ1:. sides, the by t4eir attorneys, requested the court to lnstJ:uqUhe Jury, in writing, beforel;\rgument, which the court refused 'l'his reto dQ,alld to which rl'lfusal plllintiffs at the and,. exceptionopYiQuslyrel!tte, to the, chl!.rge}n chief, and not to special asked" py sidfll. . The remalning errors assigned relate; to,. the instructI"ons given and:.' ;refused. The court told the jury that "fJ;;:l.\ld,is never b1J.(must .,be proved," and this was exto;. and the g1'9qnd for the ,exception is that the c(ml'tj dtt;lnot in connection state that fraud, like any other proved by, evidence.'. But no suggestion fact, the. time, aqd no request preferred, to that effect. It is ,thlilpre:vailing practice, in cases involving issue of fraud in fact, for, the 90urt.to repeat til the jury this trite scrap of judicial phraseology, lUld it is commonly followed by a statement that fraud, like any other fact, may be proved by circumstantial evidence; but it would be an unwarranted impeachment of the intelligence of the juries of this country to Buppose that they do not have a knowledge of these common truths. Evw-yman knows that fraud,' no more than murder, trespass, or debt, is presnmedligainst a man, and thatfraud, as well as murder, trespass, or a debt, mll-Y be proved by 'circumstances as well as by the positive testimony of an eyewitQess. When the court tens a jury that the.burden is on a party to prove a,given fact, it is not required to enumerate all the vario1Xs'kinds and degrees of evidence by which the fact may be proved,a,s it may be proved by paper writing signed by the party, or. by the oral evidence of eyewithesses, or by the admissions of the party, or by jury.k!lows, without being told so in t,erms,
BAER 11. ROOKS.
that every fact and circumstance which the court permits to go in evidence before them is put there for their consideration in the determination of the facts of the case. If a party conceives that the evidence discloses any fact or circumstance which the law regards as a badge of fraud" or prima facie evidence of fraud, he may, if the court omits to noticedtiri its charge, prefer a request for an instruction to that effect. The court charged the jury that it was the duty of an insolvent debtor to 'make an assignment of his property for the benefit of his creditors. A similar charge was considered by this court in Sanger v. Flow, 4 U. S. App. 32, 48 Fed. Rep. 152, and was held not to be a reversible error. The court rightly told the jury that if they found the transfer and delivery of the goods to McAlester, in satisfaction of the debt due from Rooks to him, were made before the execution of the deed of assignment, that the validity of the deed was not affected thereby, and that order to vitiate the deed of assignment on the grounds of fraud the fraudulent intent must have existed, and the assignment was the means by which the fraud was effected, and must operate to the detriment of the creditors of the assignor, or reserve some benefit to the assignor himself. No subsequent act of the parties can affect or invalidate an as-' signment made in good faith." The plaintiffs have no reason to complain of this instruction. Estes v. Gunter, 122 U. S. 450, 7 Sup. Ct. Rep. 1275; Hill v. Woodberry, 4 U. S. ;App. 68, 49 Fed. Rep. 138. The charge was too favorable to the plaintiffs, in that it does not tell the jury that to render the deed void for fraud the trustee must have been cognizant of or participated in the fraud. Emerson v. Senter, 118 U. S. 3, 6 Sup. Ct. Rep. 981. Rooko could not by his own act make infants of tender years his part-. ners in business; and, if he ,vas indebted to them, he had an undoubted right to prefer them in his assignment, as was done. Several of the requests for instructions preferred by the plaintiffs related to the sale of the goods by Rooks to McAlester which was, upon the advice of counsel, rescinded, and the parties placed in statu quo,' some days before the making of the deed of assignment or the suing out of the attachment. These are conceded facts, and the instructions, therefore, based on that annulled and rescinded transaction, were irrelevant to the issues to be tried. The plaintiffs asked the court to charge that if Rooks pain to McAlester $5,000 in goods to pay a note for that amount, on which McAlester was surety for Rooks, before the maturity of the note, that would be a fraudulent disposition of the goods on the part of Rooks. The assignor had a right to use his property to pay debts to become due as well as those already due, and he had an undoubted right to protect parties who had become his sureties, whether for debts due or to become due. Estes v. Gunter, supra. The plaintiffs asked the court to instruct the jury that it was "incumbent upon the defendant and intervener" to account for any diminution in the stock of goods between the date of their first sale to McAlester,
the ,date theywendevied upon by' themal'8hal,' and, not done so to your satisfaction, you should fin.d for the has .referepooto the saleo!. tbegoods to Mc.Alester,whioh WIlS .rescinded in tOto. long before the assignment was made or thtNI;ttachment(is8ued. Mc.Alesterhad possession of the goods oneUlly.uD1ier, that, sale., and then tllansferred them back to Rooks, who continuBd t(}.ae11 and pay debts(tut of, them .until the deed of assignment·was dellivered to.theassignee, from; whom theyw.el'e subsequently takell,Dy'the! marshal. The instructiolbftSSerts, in effect, that if there was any diminution· in. the amount or value .oftheg()ods between the time they were sold to McAlester, in February, and the 5th day of MarchI: when they were ,attached, iliehurdenwas ,00 the intervener to account for the diminution, and that, if. he Jailed to do so, his title under the deed of assignment was void.· No such burden rested upon the intervener·. Theintervenellis only required to account for the goods he received. He is notlrequired to :show, under penalty of a forfeiture of his under the assignnlent, what disposition the goods the assignment was. made, or to explain any diminution in the amount of thegoQds before they came into his possession as. trustee under the deed. If there was any considerable diminutton: ifl<' the amount: of the goods between the dates mentioned, it might,b!l.VE' heen a circUMstance to support the truth of the affidadt f9r'attachment .. · .But, in the .form in which it was asked, it was rightly,'refused, and cannot be made a ground of exception upon either We'bave looked very carefully through the record in this case, and see no error of which the plaintiffs can jusH)' complain. 1'he assignoraeemsto havedooe no more than to have exercised his undoubted right at common law to .appropriate· his property to the payment of some of his creditors to the· exclusion of others. This right he could exercise befot1ehe made the assignment, as he did to some extent, and he could also exercise it by making an assignment giving prelerllnces, as \V&IS done. J udgmentaffirmed.
court, D. Marvwnd. May 16, 18l12.)
'l'he pl'ovisl0!1s of the Maryland Code, art. 84, giving to the owner of an:y shore oftbe;tJhellapeake bay andits tributaries, upon whose land logs are cast by wlDd and tide. a Uen upon the of 25 cents for each log, and fOJ;biddil\g the owne.r of the logs from them .without paymeut, ,held to be vtYid and constitutional leglalation Within the properelrerciseoftbe police power of the state. HeLd, tbat tbe atateleglslat.ion w;as not an unconstitutiQo,al and arbitl1lry witb pri. vate rlg/lts; ·tbat It was not an attempt to regulate comm .and that It did not depriVllthe'owner of the logs of his property without due process of
LA.W-PQLIOIll POWER-DIUFTIlID LOGs..