and others v. FLETCHER and another.
(Oircuit Oourt, D. Indiana, May 31, 1881.)
Extrinsic evidence is admissible to prove that a real party in a suit was not a party to the record, but that he prosecuted or defended the suit in the name of a nominal party; and, When so shown, the real party is concluded by the judgment as effectually as if he had been a. party to the record.
X. by fraud induced the plaintiffs to sell him certain goods on time. Plaintiffs afterwards brought an action of replevin against A., B· o and C., then in possession of the goods, and in that action judgment was rendered against the plaintiffs. Plaintiffs brought this suit. against the defendants to recover the value of the goods. Held, that. the judgment in the replevin suit was conclusive against the plaintiffs, it being shown that A., B., and C. were the agents of the defendants, who had appeared and defended the suit in their name.
Gordon, Lamb et Sheppard, for plaintiffs. Rand et Taylor and Baker, Rord et Hendricks, for defend-
ants. GRESHAM, D. J. This suit is brought by Claflin &; Co. against Stoughton A. Fletoher and Franois Churohman, for the value of a lot of dry goods which one George Hazard, by fraudulently representing that he was solvent, when in faot he was insolvent, induced the plaintiffs to sell to him on time. It is averred that Fletoher & Churchman bought the gooQs at .sale on executipn againat Hazard. after being notified of the latter's fraud, and that the plaintiffs had oancelled the sale and demanded possession of the property. The defendants answer that for some time before their purchase of the goods. they had been in the custody of John W. Cottom, Robert S, Foster, and Ellis 'G, Shantlin, as th& ag(')uts of the defendants; that prior to the ma.rshal's sal& the phl.intiffs dema.nded. possession of the. ,goods of such l:i.gents, who, under instructions from the defendants, refused
to surrender the same; that the plaintiffs then commenced an action of replevin in the superior court of Marion county, Indiana, against the agents, Cottom, Foster, and Shantlin, for possession of the goods; that the defendants appeared, and in the name of their agents controverted the title of the plaintiffs to the goods; that the right of the plaintiffs to the goods was litigated, and a verdict and judgment were rendered for the defendants, and that this judgment is in full force and unreversed. After admitting in their reply that they prosecuted their action in replevin to judgment, the plaintiffs aver that the defendants in this suit were not parties to the suit in the state court; that the suit in the latter court was not tried on its merits; that the right of the plaintiffs to the goods was not determined by that action; and that the plaintiffs failed in the state court because they had not, prior to the beginning of their suit, surrendered or offered to surrender to George Hazard the note that he hild given for the goods; for which reason the court instructed the jury ,to return a verdict'for the defendants. The judgment of the state court is conclusive between the: same parties and their privies. The defendants in the first suit ,were the agents of the defe'ndants in 'this suit. Through these agents the present defendants resisted Claflin & CO.'s (jlaim of ownership in the state court. Extrinsic evidence is admissible to prove that a real partyin a suit was not a party to the record, but that he prosecuted or defended the suit in t,he name of a nominal party; and whenever this is made to appear, the'real party is concluded by the judgment as effectually as if he had been a party to the record. It makes no difference that the first suit wl1.s for possession of the goods while the present one is for their value. The ownership of the goods was the controversy in the state court, and we have the same controversy in this court. The same proof that would entitle the plaintiffs to recover here, ought to have .entitled them to a verdict and judgment in the state court. It may be that the judgment of the state court was erroneous,
IN BE MERRITT.
but it cannot be reviewed in this collateral way. The merits were involved in the first suit, and the judgment in it is aliJ conclusive as if it had been on the merits. The issue in that suit was broad enough to entitle the parties to introduce evidence on the merits; and if the court Ulisapplieq the law to the facts before it, the judgment is nevertheless conclusive, and it Ulust stand until corrected in some appropriate Ula,n· nero Demurrer sustained.
(Di8triet Court, D. He'll) Jer8V1/. May 24, 1881.)
Previous to ,his bankruptcy, A; was superintending theruilnfng of a steamer, and, as treasurer of the corporation owning her, 'reoeivad and disbursed the moneys earned by the steamer. Odd, that, A., such a relation to the corporation,was not a merchant or tradesman within the meanin'g of the' bankrupt act, arid waS "not' subject to its penalties for not keeping proper books of account. ! '
On Specifications against Discharge. D. A. Ryerson, for bankrupt. B. Wayne Parker, for creditors. NIXON, D. J. Seven specifications are filed in this ca,se against the discharge of the bankrupt. The first alleges that the bankrupt swore falsely in various pf!>rticulars on his examination as a witness during the bankruptcy proceedings; the second, that he concealed certain property, therein speci. fied, belonging to him at the time of filing his petition; the third, that he destroyed, mutilated, and altered his books and papers with intent to defraud his creditors; the fourth, that he fraudulently admitted false and fictitious debts against his estate, claimed by his father and brother; .the fifth, that he hll-d knowledge that such debts were proved aga,inst his estate, and did not disclose the same to his assignee; th e