RINDS 11. KEITR.
15
tie conceded that .the plaintiffs in error discharged the burden of proof resting on them. But this ,fraudulent intent is immaterial unless they traced to Keith knowledge of it, or information of suspicious circumstances, which ought to have 1e4 him to make inquiry, and which, if followed up, would have led to knowledge of such fraudulent intent. The burden of showing such knowledge or information of such suspicious circumstances was, as we have Baid, on the plaintiffs in error, and, in our opinion, they have failed to discharge it. We have qeen unable to find in the evidence any fact or circumstance tracing to Keith knowledge of Fennell's insolvency or fraudulent intent, or information of any suspicious fact or circumstance, which ought to have put him on inquiry, and which, if followed up, would have led to such knowledge at or prior to the sales. The bill of exceptions sets out all the evidence in the case and that which was excluded. If the whole evidence, with all in· ferences that the jury could justifiably draw from it, was insufficient to support a verdict for the defendants, now plaintiffs in error, the case will not be reversed, although there may have been errors committed by the court below in rulings on evidence, in charges given, and in the refusal to give certain charges requested by the defendants. Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Railroad Co. v. Moore, 121 U. S. 570, 7 Sup. Ct. Rep. 1334. Our opinion is that the verdict waB not only responsive to the evidence and the law applicable to the case, but that, in view of all the evidence, no other verdict could properly. have been rendered by the jury. rrhe judgment is affirmed. On Petition for Rehearing. (May 30, 1893.)
TOUL'MIN, District Judge. Rule 29 of this court provides that a petition for rehearing must be supported by certificate of counsel. The petition in this case is not supported by such certificate, and. for that reason should be denied. We, however, will not rest our denial of the petition solely on this ground, but will consider the petition on its merits. The counsel for plaintiffs in error claim that the court erred in holding that evidence that it was "generally understood in the community that Fennell was selling goods at cost" was inadmissible, and that the court was wrong in considering that the objective fact sought to be thus proved was that Fennell was selling goods at cost. They claim that what they sought to prove by this evidence was notice to Keith of the fact that Fennell was thus selling goods by showing that it was a matter of notoriety in the community, and that this fact was a suspicious circumstance, which ought to have put Keith on inquiry. If Fennell's financial embarrassment or insolvency was proved by proper evidence, then proof of its notoriety in the com·
Ie
FEDERAL REFORTER,
vol. 57. \
B1:'1;1nitywould be adniisslble"to bring home knowledge of the fact io,Keith{"'ho resides there. 1 Brick. Dig. p. 847, §§ 616--617. But the notoriety of a sale Ol" purchase in a community is nothing more than hearsay, and is inadmissible as evidence, and it is, in our opin· ion, inadmissible to raise 81 presumption of knowledge in the community ()f such sale or purchase. Steele v. Worthington, 7 Port. (Ala.) 266;' Yarboroughv.Moss, 9 Ala. 382. If, then, the court misconceived the purpose of the inquiry as to the notoriety of Fennell's selling goods at cost, as is claimed, we are still of the opinion that there was no error in the ruling of the court in reference to it. There was evidence, admitted without objection, that Fennell'sold an overcoat at a price below cost, and that he sold some other goods at very low prices, some of them, in the opinion of the witnesses, at cost; that no one else in the community had the reputation' of selling as cheaply; and that it was generally undersfuodtllat he was selling cheaply. , But the evidence further was was selling for cash and others on credit, that he bought for cash ,generally, and most other merchants there bought on anl:lthat discounts are given from 1 to 10 per cent. on cash purchasesl!t: 'lUSO appeared. that while Fennell actually sold some class somewhat cheaper than merchants there generally·didjthere were some kinds of goods that could be bought cheaper elsewhere,and it appeared that some of the goods bought from Fennell by merchants, or by other persons for them., were sold by such merehantsat the 'same prices. The fact that Fennell sold gOod$cheaper than 'oTher merchants generally in the same place did, nndthat he Sold some particular article, whether as a leader or otherwise, at cost or below cost, is not of itself such a suspicious circumstance as, if known to Keith, ought to have put him on inquiry, and which, if followed up, would necessarily or naturally have led to knowledge of Fennell's fraudulent intent. Considering all the factI' and circumstances as shown by the evidence" we are satisfied, with the conclusions heretofore reached by us in the case. ' , of Fennell's removing some goods from his There store in ScottSboro to Woodville some time in the fall of 1884, to, J{eith's purchase; but there was no evidence, direct and or circumsta:g.tial,of Keith's knowledge of this. There was also evidence ()f }i'ennell's removing goods from a store in Woodville, 20 miles from Scottsboro, about the time of the seizure by the marshal. '1'llls waS a very suspicious circumstance, but this occurred, even if known to Keith, after the purchase by him. Rehearing 'denied. McMULLEN v. NORTHERN PAC. R. CO.
(Circuit Court. E. D. Wisconsln. 'August 4, 1893.) , 1. REMOVAL olio CAuMS-P!tAOTIOE DICTION. ,',::: REFUSAL OF PARTY TO RECOGNIZE JUltIS,
Ip. a ,rllmoved to circuit court from a state court whiol;a had retl1sM to order the removal, plaintilf,after refusing to recognize the