Where a sheriff was sued for taking goods under an attachment,
which goods had been previously assigned under circumstances which
were alleged to be fraudulent, it was proper for the court to
charge the jury that if they believed from the evidence that the
sale was made for the purpose of hindering, delaying, or defrauding
creditors, it was invalid as against the defendant, and that
whether the sale was or was not fraudulent was a question of fact,
to be determined by the jury under all the circumstances of the
case; that if the sale were secret, and no means taken to apprise
the public of it, these were facts which threw suspicion upon the
transaction, but did not make the sale fraudulent in law as against
the defendant.
A decision on a motion for a new trial, being addressed to the
discretion of the court, is no ground for a writ of error.
This was an action of trespass brought by Norton, Jewett &
Busby, against Warner for taking certain goods in a storehouse in
the Village of Lasalle. Warner justified the taking, as Sheriff of
Lasalle County, under certain writs of attachment against one
Haskins, the former owner.
Page 61 U. S. 449
The jury found a verdict for the plaintiffs, assessing the
damages at five thousand six hundred dollars and sixty-four
cents.
The bill of exceptions shows the whole case, and it is inserted
in extenso because the questions of law involved have been
decided in different ways by courts of justice and elementary
writers do not agree about them.
"Be it remembered that on the trial of this cause, plaintiffs in
this action claimed title to the goods, for the taking of which
this suit was brought, by a sale of the goods alleged to have been
made by one Haskins to them, through one Isaac Anderson, as their
agent."
"The proof of the plaintiffs tended to show that Beman, one of
the plaintiffs, had a claim as creditor against Haskins of about
$1,200, and that the firm of Norton, Jewett & Busby, had a
similar claim of about $3,000. That each of these claims had been
put in the hands of one Anderson by the owners thereof respectively
for collection, with authority to settle or arrange in any way.
That on the 10th of January, A.D. 1855, the goods were chiefly in a
hardware storeroom, and in the tin shop attached thereto, in the
Village of Lasalle, and that up to that time Haskins had been
carrying on the business of a hardware retailer, and of
manufacturing tinware in his tin shop adjoining; that while he was
absent, his business was conducted for him by one Atherton, as his
head clerk, who employed the operatives and superintended them, the
business being done in the name of Haskins; that on the tenth of
January, 1855, Haskins sold his stock of hardware and tinware to
Beman and the firm of Norton, Jewett & Busby, through Anderson,
as their agent as aforesaid, Anderson canceling the aforesaid debts
and giving his notes on time to Haskins for the balance of the
price agreed upon; that thereupon, by way of putting the purchaser
in possession, Haskins, Anderson, and Atherton, being in the
storeroom, Haskins got the key of the front door and gave it to
Anderson, and Anderson gave the key and charge of the store and tin
shop to Atherton, who up to that time had been carrying on the
business for Haskins, but then undertook to act for Anderson."
"That Anderson left town, and about the same time Haskins left
town, and neither of them returned until after the taking by the
defendant, Haskins never having returned to reside there and never
having since resided there or interfered with the goods in any way
after the sale; that Cephas H. Norton, Albert, Jewett, and Benjamin
Busby, were the ostensible partners of the firm of Norton, Jewett
& Busby. but that Anderson,
Page 61 U. S. 450
in preparation for the bringing of this suit, was informed by
the ostensible partners that there were special partners; that John
C. Phelps was a special partner, and a brother of John C.
Phelps."
"There was no distinct evidence in the case to show that John J.
Phelps and Isaac N. Phelps, or either of them, were members of the
firm of Norton, Jewett & Busby, or that they ever were in any
way interested in the property taken, but the witness stated he
believed or supposed the parties named in the record were the
parties in interest, but he did not actually know it of his own
knowledge."
"[It is but fair to state that while this point was made by the
defendant, it was not pressed or insisted on, and the court thinks
the plaintiffs' counsel might so infer, and therefore might not
have thought it necessary to furnish additional proof.]"
"Plaintiffs' proof further tended to show that defendant was
Sheriff of Lasalle County, and that as such he did, on the ninth
day of February, A.D. 1855, take and carry away the said hardware
and tinware. Defendant offered evidence tending to prove that
before and at the time of said sale, said Haskins was in failing,
and that certain creditors by judgment had sued out writs of
attachment, as set forth in defendant's special pleas, against the
goods of said Haskins, and that said taking complained of in this
suit was the levying of legal process upon the said property as the
property of said Haskins."
"Defendant further offered evidence tending to prove that said
sale was made secretly, but several of the plaintiffs' witnesses
stated the sale was not made secretly, but that while the invoice
was being made out, people were coming in and out of the store, as
usual; that no steps were taken by anyone to make it known till
after said levy; that from the time of the sale, said Atherton
continued to control the goods and the business as before, and to
all appearance was doing so for Haskins, as he had done before;
that he made sales to customers as formerly, without notice to
anyone of the change in proprietors, and in some instances made out
the bills and receipts of said sales to customers in the name of
Haskins."
"That no change was made in keeping the books; that the servants
and operatives about the store and tin shop continued to work under
the direction of Atherton, with no knowledge of any sale and
supposing the business was being carried on as formerly in the name
and for the use of Haskins, but it did not appear that any of these
things was authorized by the plaintiffs or known to them. And that
this condition and course of things continued until said goods were
seized by said sheriff on the 9th day of February, 1855. "
Page 61 U. S. 451
"After the evidence was given to the jury, the court charged as
follows, substantially:"
"1. That the jury must be satisfied from the evidence that the
plaintiffs named in the declaration had a joint interest in the
property sued for, or they must find for the defendant."
"2. That if the jury believe from the evidence the sale was made
for the purpose of hindering, delaying, or defrauding creditors, it
was invalid as against the defendant."
"3. That whether the sale was or was not fraudulent was a
question of fact, to be determined by the jury under all the
circumstances of the case."
"4. That if the sale was secret, and no means taken to apprise
the public of the sale, these were facts which threw suspicion upon
the transaction, but did not make the sale fraudulent in law as
against the defendant."
"5. That the jury were to determine the facts as to the
possession after the sale. If a sale is made by a party, and the
vendor remains in possession, it is ordinarily a badge of fraud and
requires explanation. But in this case there did not seem to be any
evidence tending to show that the vendor Haskins was in possession
after the supposed sale except that Atherton retained possession,
and as to his possession the jury would determine. If it was the
possession of the plaintiffs, and not of Haskins, the sale was not
necessarily fraudulent."
"6. The court declined to charge the jury that as a matter of
law under the facts in evidence, the sale was fraudulent as to the
defendant, but left it to the jury to decide whether the sale was
in good faith, and for an honest purpose."
"After verdict, a motion for a new trial was overruled. To which
instructions, as then given, the defendant's counsel, and to each
severally, then and there excepted, and also to the overruling the
motion for a new trial."
"Exceptions allowed."
"THOMAS DRUMMOND [Seal]"
Page 61 U. S. 456
MR. JUSTICE McLEAN delivered the opinion of the Court.
Page 61 U. S. 457
An action of trespass was commenced by Norton
et al.
against Warner charging him with having seized and carried away
personal property of the value of ten thousand dollars. The
defendant pleaded not guilty, and by several special pleas set up
that certain creditors of Augustus A. Haskins, who had left his
residence at Lasalle, procured a writ of attachment, under the
statutes of Illinois, which was directed to the defendant, as
sheriff, in virtue of which he attached the personal property of
Haskins, which is the trespass charged &c.
The bill of exceptions taken on the trial will show the points
of law which were made on the facts. The proof of the plaintiffs
tended to show that Beman, one of the plaintiffs, had a claim as
creditor against Haskins for the sum of twelve hundred dollars, and
that the firm of Norton, Jewett & Busby had also a claim of
about three thousand dollars; that each of these claims had been
put into the hands of one Anderson for collection, with authority
to settle them; that on the 10th of January, 1855, the goods were
chiefly in a hardware storeroom, and the tin shop attached thereto,
in the Village of Lasalle; that up to that time, Haskins had been
carrying on the business of a hardware retailer and manufacturer of
tinware; that while he was absent, the business was conducted by
one Atherton, his head clerk, who employed the operatives and
superintended their work; that on the 10th of January, 1855,
Haskins sold his stock to Beman, and the firm of Norton, Jewett
& Busby, through Anderson as their agent, Anderson canceling
the aforesaid debts and giving his notes on time to Haskins for the
balance of the price agreed upon; and thereupon, by way of putting
the purchaser into possession, Haskins, Anderson, and Atherton,
being in the storeroom, Haskins got the key of the outer door and
gave it to Anderson, and Anderson gave the key and charge of the
store and tin shop to Atherton, who, up to that time had been
carrying on the business for Haskins, but then undertook to act for
Anderson.
Anderson and Haskins left Lasalle and did not return until after
the attachment was laid on the goods. Haskins never returned to
reside there, and exercised no ownership over the goods after the
sale. Norton, Jewett & Busby, were the ostensible partners of
their firm, but they informed Anderson that John C. Phelps and his
brother were special partners. There was no further evidence to
show the interest of the Phelpses except the belief of the witness
that they were parties, though he could not so state from his own
personal knowledge. An objection to this defect of proof was made
but not insisted on.
The plaintiffs' proof further tended to show that the sheriff,
on the 9th of February, 1855, did take property attached and
Page 61 U. S. 458
removed it, and evidence was offered to show that before and at
the time of said sale, Haskins was in failing circumstances and
that certain creditors had sued out writs of attachment, as set
forth in defendants' special pleas, against the goods of said
Haskins, and that the taking of the property complained of was by
legal process.
Defendant offered further evidence tending to prove that said
sale was made secretly, but several of the plaintiffs' witnesses
stated the sale was not made secretly, and that, while the invoice
was being made out, people were coming in and going out of the
store as usual; that no steps were taken by anyone to make the sale
known until after the attachment was laid; that from the time of
the sale, Atherton continued to control the goods and the business
as before, and to all appearance was doing so for Haskins; that
sales were made to customers as formerly, without notice to anyone
of the change of proprietors, and in some instances the bills and
receipts of sales to customers were made out in the name of
Haskins. No change was made in keeping the books; that the servants
and operatives about the store and tin shop continued to work under
the direction of Atherton, with no knowledge of any sale, and
supposing the business was being carried on as formerly, and for
the use of Haskins, but it did not appear that any of these things
were authorized by the plaintiffs or known to them, and that this
condition and course of things continued until the goods were
seized by the sheriff.
After the testimony was closed, the court charged the jury
first, they must be satisfied from the evidence that the plaintiffs
named in the declaration had a joint interest in the property sued
for, or they must find for the defendant.
The jury found for the plaintiffs, which shows they were
satisfied with the evidence on the point made or considered the
objection abandoned. If it were not insisted on in the court below,
it cannot be raised here. There is no error in this charge of the
court.
The second, third, and fourth charges were,
"That if the jury believe from the evidence the sale was made
for the purpose of hindering, delaying, or defrauding creditors, it
was invalid as against the defendant, and that whether the sale was
or was not fraudulent was a question of fact, to be determined by
the jury under all the circumstances of the case. That if the sale
were secret, and no means taken to apprise the public of it, these
were facts which threw suspicion upon the transaction, but did not
make the sale fraudulent in law as against the defendant."
It is insisted that the sale was void as matter of law
against
Page 61 U. S. 459
creditors, and should have been so held by the court, and the
case of
Hamilton v.
Russell, 1 Cranch 310, 1 Curtis 415, is cited as
sustaining this position. In that case, Hamilton made an absolute
bill of sale for a slave on the 4th of January, 1800, which was
acknowledged and recorded on the 14th of April, 1801. The slave
continued in the possession of the vendor until an execution was
levied on him as the property of the vendor. Trespass was brought
against the plaintiff in the execution, who directed the levy to be
made. The Court held, under the statute of Virginia against frauds,
that an absolute bill of sale, unless possession "accompanies and
follows" the deed, is fraudulent, and the case of
Edwards v.
Harben, 2 Term 587, was cited. It is admitted that the statute
is in affirmance of the common law.
In his 3d volume of Commentaries, Chancellor Kent has an
interesting chapter on this subject in which the case of
Edwards v. Harben and many other authorities are cited,
and he favors the doctrine that unless the possession of goods
follows the deed, it is fraudulent
per se. But he states
many exceptions to this rule, as where the possession of the vendor
is consistent with the deed or the circumstances of the case. And
he says, in
Steward v. Lambe, 1 Brod. & Bing 506, the
court of C.B. questioned very strongly the general doctrine in
Edwards v. Harben that actual possession was necessary to
transfer the property in a chattel, and the authority itself was
shaken. And he observes the conclusion from the more recent English
cases would seem to be that though a continuance in possession by
the vendor be
prima facie a badge of fraud, yet the
presumption of fraud may be rebutted by explanations.
In the case of
Wood v. Dixie, 7 Q.B. 894, the counsel,
who was interested in maintaining the doctrine of
Edwards v.
Harben, admitted that
"some doubt has existed whether upon certain facts, as, for
instance, want of possession, fraud is a question of law to be
decided by the court or of fact for the jury, but it seems to be
now established that the question is for the jury."
In
Martindale v. Booth, 3 B. & Ad. 498, Parke,
Justice, says the
dictum of Buller, Justice, in
Edwards v. Harben has not been considered in subsequent
cases to have that import; the want of delivery is only evidence
that the transfer was colorable. In
Benton v. Thornbell, 2
Marsh. 427;
Lattimer v. Batson, 4 Barn. & Cress. 652,
the same doctrine is laid down. In the more modern English cases,
the stringent doctrine of
Edwards v. Harben has been
departed from, and the want of possession of chattels purchased is
considered evidence of fraud before the jury. In
Kidd v.
Rawlinson,
Page 61 U. S. 460
2 Bas. & Pull. 59, Lord Eldon admitted that a bill of sale
of goods might be taken as a security on a loan of money, and the
goods fairly and safely left with the debtor. And this decision
conformed to Lord Holt's view in
Cole v. Davis, 1 Lord
Raymond 724; and Lord Eldon, many years afterwards, declared, in
Lady Arundell v. Phipps, 10 Ver. 145, that possession of
goods by the vendor was only
prima facie evidence of
fraud. In
Eastwood v. Brown, 1 Ryan & Moody, Lord
Tenterden held want of possession was only
prima facie
evidence of fraud.
It would seem to be difficult on principle to maintain that the
possession of goods sold is
per se fraud, to be so
pronounced by the court, as that cuts off all explanation of the
transaction, which may have been entirely unexceptionable. If
circumstances, at law, may be proved to rebut the presumption of
fraud, the case must be submitted to the jury.
But the case before us is not similar to that of
Hamilton v.
Russell. There was a change of possession in the goods
purchased by Anderson by the delivery to him of the key of the
outer door of the storehouse, which he delivered to Atherton, who
had agreed to continue in the business as the agent of the
purchasers. From the time of the purchase, Haskins had no
possession of the property, nor did he exercise any acts no
ownership over it. He was absent from Lasalle from the time of the
sale until after the attachment was laid.
Now whether this was a colorable delivery or not was a matter of
fact for the jury, and not a matter of law for the court. It is
clearly not within the case of
Hamilton v. Russell.
Few questions in the law have given rise to a greater conflict
of authority than the one under consideration. But for many years
past the tendency has been, in England and in the United States, to
consider the question of fraud as a fact for the jury under the
instruction of the court. And the weight of authority seems to be
now, in this country, favorable to this position. Where possession
of goods does not accompany the deed, it is
prima facie
fraudulent, but open to the circumstances of the transaction, which
may prove an innocent purpose. But if such explanation may be
given, it is a departure from the stringent rule in the case of
Edwards v. Harben.
It is urged that the fourth instruction is erroneous, as the
jury was told, though the sale was secret, and no means taken to
make it public, it was not fraudulent in law against the defendant.
Whilst in the old cases it was held that the possession of the
vendor of goods sold was fraudulent against creditors, no case, it
is believed, has been so held by the court on the alone ground of
secrecy in making the contract. It is
Page 61 U. S. 461
a circumstance connected with other facts from which fraud may
be inferred. But if the secrecy supposed amounted to absolute
fraud, yet the court could not have so pronounced in this case, as
there was evidence controverting the supposition of secrecy, which
the court could not properly take from the consideration of the
jury.
The fifth and sixth charges were that the jury was to determine
the facts as to the possession after the sale, and that if a sale
is made by a party and the vendor remains in possession, it is
ordinarily a badge of fraud and requires explanation, and under the
sixth they left the case to the jury, to determine whether the sale
was in good faith and for an honest purpose, which instructions
were, as we think, correct and in accordance with the general
doctrine on the subject.
A decision on a motion for a new trial, being addressed to the
discretion of the court, is no ground for a writ of error.
The judgment of the circuit court is affirmed.
