Harris v. D'Wolf,
29 U.S. 147 (1830)

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U.S. Supreme Court

Harris v. D'Wolf, 29 U.S. 4 Pet. 147 147 (1830)

Harris v. D'Wolf

29 U.S. (4 Pet.) 147


The plaintiff in replevin, James D'Wolf, claimed the merchandise under an assignment executed by George D'Wolf and John Smith to him in consideration of a large sum of money due by them to James D'Wolf and in consideration of advances to be made to them by him. The assignment transferred four vessels and their cargoes, three of which vessels were then at sea and one in New York ready

to sail, the property of the assignors. The assignment was to be void on the payment to James D'Wolf of the money due to him, and if it should not be paid, the assignee to enforce the pledge by process and arrest in all countries or places whatsoever and to sell the same for the payment of the amount due by them, the assignors, to George D'Wolf. The merchandise for which this action of replevin was instituted, was part of the return cargo of one of the vessels. The defendant Harris pleaded that the merchandise was not the property of the plaintiff, but of George D'Wolf and John Smith, and justified the taking of the goods of the plaintiff, as marshal of the District of Massachusetts, by virtue of a writ of attachment sued out in the Circuit Court of the United States for the District of Massachusetts, in which suit judgment was obtained against George D'Wolf. On the trial, the plaintiff in the replevin proved the assignment, that large sums of money were due to him by George D'Wolf and John Smith, that the goods were part of the property assigned, that he had used all proper means to take possession of the goods, but was prevented by the attachment issued by the United States. The defendant proved that the goods were imported into the United States by D'Wolf and Smith, and that at the time of the importation, they were indebted to the United States for duties which were due and unpaid to an amount exceeding the value of the merchandise attached, and that the Octavia, one of the vessels assigned, with a cargo on board ready for sea, was at New York at the time of the assignment, which ship was not delivered to James D'Wolf, the assignee, nor were the bills of lading assigned, the cargoes on board the vessels being consigned to the masters for sales and returns.

By the court:

"In the case of Conard v. Atlantic Insurance Company, 1 Pet. 306, it was decided that the nondelivery of a vessel assigned to secure or pay a bona fide debt did not make the assignment absolutely void. This Court is well satisfied with that opinion."

The deed of assignment conveyed to the assignee a right to the proceeds of the outward bound cargoes on board the vessels assigned to James D'Wolf.

The failure of George D'Wolf to deliver to the assignee the copies of the bills of lading which were in his possession, did not leave the property subject to the attachment of creditors, who bad no notice of the deed. It was held in the case of Conard v. Atlantic Insurance Company, that such a transfer gives the assignee a right to take and hold those proceeds against any person but the consignee of the cargo, or purchaser from the consignee without notice.

That the consignees of the merchandise were indebted to the United States on

Page 29 U. S. 148

duty bonds remaining due and unpaid at the time of the importation, did not, under the sixty-second section of the act of March 2, 1799, make the merchandise, as to the United States, the property of the consignees, notwithstanding the assignment, and make the attachment of the United States for the debt due to them sufficient to bar the action of replevin brought by the assignee.

In the circuit court, the defendant in error instituted an action of replevin to recover a quantity of merchandise claimed by him under a special assignment executed to him by George D. Wolf and John Smith to secure debts bona fide due to him, and which merchandise had been seized by Samuel D. Harris the defendant in the suit, as marshal of the United States, under executions issued at the suit of the United States against George D. Wolf and John Smith, on judgments obtained against them for duties. The marshal claimed to hold the merchandise as subject to the executions, and the cause was tried in the circuit court in December, 1827, and a verdict under the charge of the court was given for the plaintiff. At the trial, the defendant prayed the court to give certain instructions to the jury, which the court refused to give, to which refusal the defendant excepted and prosecuted this writ of error. These instructions appear in the opinion of the Court.

The case was submitted to the court without argument, by the counsel.

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