754
FEDJtRA'L REPORTER.
194,554.
Bancroft, 3 Sum. '384; WilkinsOn v. Greely, 1 Curt. 439,;-000Iey, Tax'n, 202; 1 Desty, Tax'n, 102,138; 2.Desty, Tax'n, 1055; Burroughs, Tax'n,
.
There is no such explicit manifestation of an intention to levy a permanent tax of one dollar, by the act of 1881, as is implied in the cation to now enforce it against the taxing district of Brownsville, which was organized after the two years to which the levy would certainlyapply. ' The general result is that the plaintiffs are left to the same remedy that we applied in the case, and they can have a writ only to that extent, unless the defendants, by their answer to the rule, show some better defense than has been suggested by their demurrers to the petition. We need not say, of course, that we cannot enforce any judgments of the state courts, and that as to these the petition will be denied. If the parties cannot agree as to any credits to· be entered upon the judgments, that disagreement must be settled before the mandamus can issue, and, if desired, the clerk may, upon a reference, 'report the facts to the court, and the balances due. Some of these defenses would perhaps be more apon the demurrers propriate in an 'answer to the rule to show cause; to the petition, we take it, the defenses may be presented, and we have can be done,but without prejuthought best to settle the case; 80 dice to the defendants to make any defense desired by response to the rule. ' I am. authbrized to say that these were the conclusions reached by the court at the hearing, and that the circuit judge fully concurs in this Counsel will prepare the necessary orders. ,So ordered.
WADE,
U. S.'Marshal, for {(se,ete., ,
'IJ.
WORTsHU and another. January
. Circuit Oour',
s.p. G601'gW,,1J. D.
'
:i. &ME-MARsHALmay be said,tbat'wheI1ever the marshal performw,fn the en· MAY SUE, wuw." ': . Generally, it
:, for,cement of re,me,dl,"es, g,iven b.y. sta,t.e. , th,esame dU,ti,esWhich.are imposed by the law of. the state upon tbe sherd'fs of the state courtll, he is entitled to maintain the saine actions in the circuit court that the sheriff has in the state court. . ::: (Byllabui by the Oourt.)
Suit on Bond.
Char'le8 Nep1u!w West and Wade HamptcmWade" for plaintiffa. Ga'l'7'ard for defendants.
WADE
v.
WORTSMAN.
755
J. 'This motion is mg,de to remand a on a forthcoming bond ,made by defendants ,to. the marshal of this district, in an attachment cause brought by Curtis & Wheeler against L. W. Wortsman. The suit was originally brought in the city court of Savannah. Proceedings were instituted by the counsel of Curtis & Wheeler, who also represented the marshal, to remove the cause to this court. This was resisted by defendants, but that court directed the removal, and the defendants sought to reverse this decision by bill of exceptions to the supreme court of this state; but the decision was affirmed, and, when the cause was called for trial here, defendants made this motion to remand. It is insisted by counsel for defendants that the forthcoming bond is made payable to the marshal; that he is a necessary party; and that, since h.e is a resident of the same state with the defendants, this court has nojurisdiction of the suit. This was the question decided by the supreme court of Georgia in the decision just referred to, (Wortsman v. rendered November 9, 1886.) The court there uses the f9110wing language: "Where a levy was made by a marshal ot the United States, a claim was a forthcoming bond was given payable to such marshal and his successors, conditioned for the forthcoming of the property levied on. and subsequently the successor of such marshal brought suit in a state court on such forthcoming bond, for the use of the plaintiffs inexecution; were non-residents of the state, the marshal was merely a formal party, without interest in the subject-matter of the SUit, the plaintiffs in execution being the real plaintiffs in the action;. and they could remove such action court of the United States on the grounds of their nonr6$idence, although the marshal was a citizen of this state. The giVing of a for the forthcoming of property in a claimcase was a proceeding unknown to the common law, and is peculiar to the remedies provided by the statutes of this state; and whilf\, generally, an action on a contract should be brought'in the name of the party in whom the legal interest is vested/yet a suit· onsnch a bond is for the. benefit of the plaintiffs in ft. fa., who are the real parties plaintiff; and in this respect it differs from a bond given when an aflidayit of illegality is interposed toa levy. Ga. 3730.3728,3674, 3672, 3486, 3a25. 3324, 3267, 2903; [Governor v. Htcks,] 12 Ga. 189; [Glenn v. Black,r8l Ga. 393; rSharman v. Walker,] 68 Ga. 148; [Edwards v. Perryman,] 18 Ga. 374, 378." It now, however, that the court did not consider the argument of counsel for plaintiff in error there, wherein it was contended that while it may be true. that, in an action ona forthcoming bond under an execution, the marshal is merely a formal party, yet, in an action on a forthcoming bond under an attachment, the marshal isa necessary party. It is true that, in the supreme court of Georgia, Mr. Justice HALL,in rendering the decision, refers to the parties as "plaintiffs in executiQP," when it would have been more accurate to have said tiffs in attachment. Nevertheless it is impossible from the context, and from the references made, that the court could have misapprehended the nature of the record befor.e it, ,nor is there anything in the construction of the Georgia statutes which could, in the opinion of this court, haye led, that CQurt to a different conclusion.. . Section 3324 of the Code. of
756
FEDERAL REPORTER.
Georgia provides "that forthcoming bonds shall be payable to the levySection 3325 provides that, "upon thefaililre of the claiming ant to deliver such property according to the conditions: of said bond, the levying officer may immediately sue the claimant and security upon the bond, and recover the full value of the property claimed, and also all damages, costs, and charges that the plaintiff may have sustained in consequence of the failure of the complainant to deliver said property." These sections relate to claims and forthcoming bonds under attachments. Sections 3728 and 3729 of the Code relate to forthcoming bonds, where claims are made to property levied on by executions issued on They likewise are made payable to the levying ofgeneral ficer, and the decision of the supreme court of Georgia quoted above will equally apply to levies by meahs of attachment, and by means of common-law executions. The court must have considered their reasoning applicable, to 'both cases, because they expressly refer to' the sections of the Code providing for each. It follows, since this is the construction of Georgia statutes by the highest judicial tribunal of the state; that very great weight must be given to it; and, indeed, was not thejurisdiction of this dourt the matter under donsideration, suchdecisionwouM be para' ' Aside, however, from this as of this suit is inherent ,in the organization and purposes' of this ,court. TheattachmenLwas originally brought by non-residents,. By virtue of their citizenship, they were entitled to bring it in the courts of the United States. A claim was interposed; and the, defendants, hav'illgcome into this forum,took charge of property in custody of its officer; and gave pond for its production at the time and place of sale; and, if'they failed to produce the property when it was adjudged subject to sale, t()respond in damages for such failure. Can.it be said that the officer of this court, or the plaintiffs for whom he sues, are powerless to collect the damages occasioned, because the defendants have broken the contract which they made in order to obtain property 'already in the hands of the court? their backs ontha, jurisdiction Must the marshal and the plaintiff. of the national courts, and set their faces towards the state courts?' If this be true, then it is easily competent, in many suits ofa civil nature, where non-residents are plaintiffs, when attempt is made to enforce the collection of the debt by final process, by simply giving a forthcoming bond to transfer the entire litiga!tiorl' from the national courts to the state courts. The effect ofthis would De to produce two suits, in different jurisdictions, to collect the same debt '; ahd the national cOl1rts, instead of affording menns for the sure and speedy enforcement of contracts made with non-residents, would be transformed into instrumentalities for delay and vexatious litigation. It may, I think, be laid down as a general proposition that wherever the marshal performs, in the enforcement of remedies given by the state law, the same duties which are imposed by the law of the state upon the sheriff of ,the state courts, he is entitled to maintain the same action in this court that the sheriff has in the state courts. Nor do I conceive the question now under consideration as open. The
NORRIS
M'CANNA.
757
supreme court ofthe United S.tates inHuff v .. Hutchirlscm, 14 How', 587, held that "the marshal is competent to sue in a court of the United Sw.tes, on an attachment bond, citizens of the state in which he is himself a citizen, averring on the record that the suit is for the benefit of the plaintiff in the original action, and that they are citizens of anotherstate." He mayalso·sue on a forthcoming bond. See, also, McNutt v. .Bland, 2 How. 9; Irvine v. Lowry, 14 Pet. 293; Browne v. Strode, 5 Cranch, 303. A forthcoming bond is taken by the sheriff for; the benefit oUhe' plaintiff. Thompacm v. Mapp, 6 Ga. 262; Code Ga. § 13. The marshal having no interest in this suit save the proper performanee of his official duty ,his action being merely for the benefit of the plaintiffs,who 'are non-residents, his residence in the state cannot defeat the jurisdiction oUhe court, and the motion, to remand is denied.
NORRlS
a.nd'others ". McCANNA. December, 1880.'
(Oircuit Court,
w: n. Michigan, No n.
CONVEYANCES..,..!NTENT-QUESTION ]'oRJUny:'-How. COMP; ST. § 6206. . , Under How. Compo St. M:ich.' § 6206, the question of the intent in conveyances alleged to be fraudulent .is one of fact, and not of law; and, where a conveyance of his stock in trade' by a married man to hIs wife is impeached as fraudulent. the value of the stock largely in excess of the claims of the wife for advances to the husband, it IS not error to refuse to charge that that fact is a "badge of fraud," and that the jury might find from that fact that the transfer was fraudulent and void. the jury having been instructed that such facts were for their consideration in determining whether there wal fraud or not. ' t. ESTOPPEIr-By CONDUCT-TROYER AGAINST SHERIFF'-CQNSENT TO LEVY. Where the sheriff's certificate made no mention of the mortgage,nor indicatedany lien subject to which the levy was made, the mortgagee ofll stock o(,goods jJ,ttached by creditors of the mortgagor is not estopped, in trover against the sheriff. fJ;om maintaining that the under the. attachment, Was tortious, by the fact that his attorney consented to the levy, provided ··that it should contain a recognition of the mortgage.' : I. AND WIFE-PARTNERSHIP-DEBTOR AND CREDITOR. While the facts that a married woman, apparently occupied as a helper in the same shop where her husband had his general store, had asserted no claim of interest in the but on the contrary had suffered him to deal with them as his own, mIght estop her from claimmg, as against creditors of the husband who had attached the stock. that she was a 'partner, and so entitled to an interest. when her assertion of an interest in It would disappoint the creditors, who had become such while the appearances held out were that the property was that of the husband. yet she is not. estopped from asserting agamst such creditors that the husband was a debtor to her for actual advances to him as a loan. 4. TROVER AND CoNVERSION-TORTIOUS TAKING-DEMAND. W,here a.' transfer of goods by a debtor, on the fraudulent character of which attachments are based. is shown to be bonafide and valid, the taking under the writs is tortiQus, and a prior mortgagee of the goods may maintain trover against the sheriff without demand. . :MICH.
i.
:J