1. In the construction of the Bankrupt Act, the fact that a
debtor signed and delivered to his creditor a judgment note payable
one day after date, giving to him a right to enter the same of
record and to issue execution thereon without delay for a debt not
then due, affords a strong ground to presume that the debtor
intended to give the creditor a preference, and that the creditor
intended to obtain it, and it is unimportant whether the preference
was voluntary or given at the urgent solicitation of the
creditor.
2. Where, in the case of a person decreed a bankrupt, a question
of insolvency at the particular date (when the debtor gave a
security alleged to be a preference) is raised, the court may
properly charge (much other evidence having been given on the
issue),
"that if the jury find that the quantity and value of the assets
of the debtor had not materially diminished from the day when the
security was given till the day when he filed his petition in
bankruptcy, and the day when he was adjudged a bankrupt on his own
petition, they may find that he was insolvent on the said
first-mentioned day when he gave the security."
3. In a suit by the assignee of a bankrupt to recover the
proceeds of the bankrupt's property, sold under at judgment given
in fraud of the Bankrupt Act, the measure of damages is the actual
value of the property seized and sold; not necessarily the sum
which it brought on the sale. The sheriff may be asked his opinion
as to such actual value.
4. The giving of a warrant to confess a judgment may be a
preference forbidden by the thirty-fifth section of the Bankrupt
Act, though not mentioned in that section in the specific way in
which it is in the thirty-ninth section.
5. It is not a true proposition of law that the federal courts
will not take jurisdiction of a suit to recover the proceeds of a
sheriff's sale of a bankrupt's property, made under a judgment in a
state court alleged to have been confessed in fraud of the act,
because the judgment has been perfected
Page 88 U. S. 326
by levy or sale and distribution of proceeds of sale among the
lien creditors entitled by virtue of their liens under state courts
to receive distribution.
6. When a debtor has once given a warrant of attorney to confess
a judgment, he knowing beyond peradventure that the holder of it
could enter judgment, obtain a lien, and get a preference, it is
doubtful whether even his
acts afterwards in opposition to
the enforcement of the judgment are evidence against an assignee
seeking to recover from the person to whom he gave the warrant the
proceeds of a sale made on a judgment obtained on the warrant. The
fact that entry of judgment on the warrant was a surprise to him,
and wholly unexpected by him, is certainly not evidence.
The Bankrupt Act enacts:
"SECTION 35. That if any person, being insolvent or in
contemplation of insolvency, within four months before the filing
of the petition by or against him, with a view to give a preference
to any creditor or person having a claim against him . . .
procures any part of his property to be . . . seized on
execution . . . the person . . . to be benefited thereby . . .
having reasonable cause to believe such person is insolvent, and
that such attachment &c., is made in fraud of the provisions of
this act, the same shall be void, and the assignee may recover the
property or
the value of it from the person so receiving
it, or so to be benefited."
"SECTION 39. That any person residing and owing debts . . . who
being bankrupt or insolvent or in contemplation of bankruptcy or
insolvency shall . . .
give any warrant to confess
judgment, or procure or suffer his property to be taken on
legal process with intent to give a preference to one or more of
his creditors . . . shall be deemed to have committed an act of
bankruptcy, and . . . shall be adjudged a bankrupt on the petition
of one or more of his creditors."
These provisions of law being in force, S. & W. Burns were
lumbermen and merchants doing business as partners in the County of
Jefferson, Pennsylvania. They became indebted to the Clarion Bank
in the sum of $10,000, the bank having discounted their two notes
for $5,000 each. The one note was due July 16-19, 1867, and the
other August 6-9.
Page 88 U. S. 327
On the 9th of July, S. Burns, one of the partners, having died,
the officers of the bank insisted upon a change of the security,
and the surviving partner, yielding to their importunity, gave the
bank an acknowledgment of the debt, payable one day after date,
coupled with a warrant of attorney to confess judgment for the debt
and costs.
On the 18th of July, the judgment was entered up in Clarion
County under the warrant of attorney authorizing it, and by
exemplification it was transferred to Jefferson, where Burns lived,
and had his property and business.
On the 19th of July, the attorney of the bank filed his praecipe
for a
fieri facias, which was probably issued on the same
day or the next day. On the 22d of July, the Sheriff of Jefferson
County had the writ certainly in his hands, and made a levy on
Burns's goods. The property levied on remained in the sheriff's
hands unsold for want of time to sell it before the return day of
the writ.
To the next term afterwards, a
venditioni exponas was
issued, under which the sheriff sold the goods and paid the bank
$9,359.50. The balance of the debt and costs was afterwards made by
a sale of land in Clarion County.
On the 30th of July, 1867, Burns filed his petition for the
benefit of the Bankrupt Law in the District Court of the United
States for the Western District of Pennsylvania, sitting at
Pittsburgh.
Upon this petition, he was adjudged a bankrupt by the district
court on the 9th day of September, 1867.
His property was assigned by the register in bankruptcy to one
Jones, on the 29th of November, 1867, who on the 6th of January,
1869, a year and more afterwards, brought suit in the court below
to recover back from the Clarion Bank the debt which it had
collected from Burns, the bankrupt.
The declaration alleged:
That Burns
suffered or procured process to be issued
out of the Common Pleas of Jefferson, and that thereupon a large
amount of his property was seized and the proceeds thereof received
by the bank on account of its claim against Burns.
Page 88 U. S. 328
That within four months after he procured or suffered the
seizure, he filed his petition and was adjudicated a bankrupt.
That he was insolvent at the time he gave the note with warrant
of attorney to confess judgment, and did it with a view to give a
preference to the Clarion Bank.
That the Clarion Bank accepted the judgment and received the
proceeds of the execution having reasonable cause to believe that
Burns was insolvent.
That the judgment, exemplification, execution, and payment of
proceeds on the bank's claim were all in fraud of the Bankrupt
Act.
That the facts above stated made it the
duty of the
plaintiff to recover the
property seized,
or the value
thereof, and concluded as in trespass on the case for a tort,
to the damage of the plaintiff $30,000.
Plea
not guilty, with a special traverse of every fact
alleged in the declaration, except the judgment note, the execution
and levy.
The case came on for trial in November, 1870, before a jury.
The plaintiff produced sundry witnesses whose testimony tended
to prove that Burns was insolvent when he gave the judgment note,
and that the defendant had reasonable cause to believe or suspect
him of insolvency.
On the other hand, the defendant produced witnesses whose
testimony tended to prove that at the date of the judgment and
afterwards when it was entered of record, the debtor (Burns) was
not insolvent, that he did not then contemplate insolvency or
bankruptcy, and that the defendant had no reasonable cause to
believe or suspect him of being insolvent.
In the course of the trial, the plaintiff having given such
evidence as he deemed necessary of the fraud committed on the
Bankrupt Law, proposed to ask the Sheriff of Jefferson County, who
sold the personal property of S. & W. Burns on the writ already
mentioned, the
actual value, in his opinion, of such
property.
Page 88 U. S. 329
The question was objected to because the evidence would be
incompetent and because the plaintiff could not recover more than
the amount for which the property sold at sheriff sale.
The objection was overruled, and the evidence admitted under
exception of the defendant.
The defendant offered to prove by W. Burns, the surviving
partner, that the issuing of the execution and the entry of the
judgment was a surprise to and wholly unexpected by him, and that
from the time he was first apprised of it, he opposed the bank in
both judgment and execution and endeavored to have the original
judgment opened.
The plaintiff objected to the foregoing offer as introducing
evidence irrelevant and incompetent.
The court rejected the first part of the offer, but allowed the
defendant to show what the witness did in opposition to the
enforcement of the judgment and execution.
The defendant proposed to prove by him, the same witness, that
upon the entry of confession of judgment by the Clarion Bank, in
Jefferson County, and issuing of execution, he came down to
Pittsburgh, consulted his Pittsburgh creditors, and notified them
of the state of affairs, and that, at their instance, he went into
voluntary bankruptcy, they and he believing that in some way or
other, under the provisions of the Bankrupt Law, then new to all,
the execution and all proceedings thereon might be set aside; that
it was a part of the agreement and understanding of the witness and
the creditors that the proceeding in bankruptcy was, if they were
successful in defeating the bank executions, to be then superseded
by arrangement and withdrawn, and the witness to be allowed to
resume possession of his mills &c., and an extension given him,
this proof to be accompanied by proof that from and after the
issuing of the bank's execution the defendant, Burns, fought and
opposed the same.
The plaintiff objected to the offer as introducing evidence
irrelevant and incompetent. The objection was sustained and the
evidence rejected under exception by the defendant.
Page 88 U. S. 330
The court charged:
"That everyone is presumed to intend that which is the necessary
and unavoidable consequence of his acts, and therefore when W.
Burns signed and delivered to the defendant in this case the
judgment note dated July 9, 1867, payable one day after date,
giving to the defendant the right to enter the same of record and
issue execution thereon without delay for a debt which was not then
due it, it afforded the strongest grounds for the presumption that
the debtor intended to give to his creditors a preference and that
the said creditor intended to obtain such preference, thereby
enabling him to make his money on execution before any other
creditor could interfere, and that in such case it was
wholly
immaterial whether the preference was voluntary on the part of the
debtor or given at the urgent solicitation of the preferred
creditor. [
Footnote
1]"
"That if the quantity and value of the assets of the said Burns
had not materially diminished from July 9, 1867, when the judgment
note was given, till July 30, when he filed his petition in
bankruptcy, and September 9, when he was adjudicated a bankrupt, on
his own petition, they may find that he was insolvent on the said
9th day of July. [
Footnote
2]"
"That the measure of damages was the value of the property
seized and sold by virtue of the execution issued on the judgment,
confessed on said judgment note, in the Counties of Clarion and
Jefferson. [
Footnote 3]"
The defendant asked the court to charge as follows:
"1st. In this case, the plaintiff must recover (if at all) under
the provisions of the thirty-fifth or thirty-ninth section of the
Bankrupt Act, as the bankrupts, whose assignee sues in this case,
to-wit, S. & W. Burns, were not so adjudicated in an adverse
proceeding in bankruptcy presented by their petitioning creditors,
but went into bankruptcy voluntarily. The thirty-ninth section does
not apply to this case, and as the thirty-fifth section does not
specify, among the acts it exhibits, as does the thirty-ninth
section, 'the giving any warrant to confess judgment,' no recovery
can be had under that section, and the verdict of the jury must be
for the defendant. "
Page 88 U. S. 331
This charge the court refused to give.
The defendant also requested the court further to charge:
"2d. That while under the Bankrupt Act, this court has the right
to restrain the further action of parties litigant in cases arising
under and referred to by the act from further proceedings in said
case during the pendency of the same, and while they are yet
undetermined in the state courts -- that is to say while the said
cases are yet without judgment, execution, sale of defendant's
property, and distribution of proceeds, and while this court has
the right and power to restrain proceedings on unfair securities
when given in fraud of the Bankrupt Act, whether of record or not
of record, yet this court has not the right or power to and will
not take jurisdiction in a suit of this kind when the judgment of a
state court has been perfected by levy or sale and distribution of
proceeds of sale of a defendant's property among the lien creditors
of a defendant, entitled by virtue of their liens under state
courts to receive distribution."
This charge also the court refused to give.
Verdict and judgment having been given for the assignee in
$15,557, the bank brought the case here. The admission of the
evidence objected to by the defendant, the refusal to admit that
offered by him, the giving of the charges given, and the refusal to
give those requested, were the matters assigned for error.
Page 88 U. S. 334
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Assignees of the bankrupt's estate may recover back money or
other property paid, conveyed, sold, assigned, or transferred
contrary to the provisions of the Bankrupt Act if such payment,
pledge, assignment, transfer, or conveyance was made within four
months before the filing of the petition by or against the debtor
and with a view to give a preference to one or more of the
creditors of the bankrupt or to a person having a claim against him
or who was under any liability on his account, provided the debtor
was insolvent or in contemplation of insolvency and the person
receiving such payment or conveyance had reasonable cause to
believe that a fraud on the Bankrupt Act was intended, or that the
debtor was insolvent. [
Footnote
4]
Two notes of $5,000 each were discounted by the defendant
corporation for the firm of which the debtor is the surviving
partner. Each note was made payable four months after date and
neither had become payable at the date of the transaction which is
the subject of complaint. They were dated as follows, to-wit: the
first April 16, 1867, and the second March 16 in the same year, and
each was endorsed by the firm of which the debtor was a member.
Subsequently the senior partner of the firm deceased, and on the
9th of July next after the dates of the notes, the officers of the
bank insisted upon a different security, and the debtor yielding to
their importunity gave the bank a new note, payable one day after
date, for the sum of ten thousand dollars, with interest, coupled
with a warrant of attorney to confess judgment against him for the
amount as of any term, with costs of suit, waiving inquisition, and
agreeing to the condemnation of any property that may be levied
upon by
Page 88 U. S. 335
any execution which may issue forthwith on failure to comply
with the conditions hereof, also hereby waiving the benefit of the
exemption laws, or any act of assembly, relative to executions now
in force or hereafter to be passed, as more fully set forth in the
record.
Armed with that power, the creditor, on the eighteenth of the
same month, entered judgment against the debtor for the sum of
$10,300 in one of the state courts under the warrant of attorney
annexed to the note, and by exemplification transferred the same to
the county where the debtor resided and was engaged in
business.
Promptitude seems to have characterized the whole transaction,
and on the nineteenth of the same month, the creditor filed a
praecipe for a
fieri facias, which it appears was issued
on the same day, and on the twenty-second of the same month the
sheriff seized certain quantities of white pine boards, amounting
in the whole to a million and two hundred thousand feet, and three
days later the same officer seized the stock of goods owned by the
debtor. Suffice it to say that such proceedings followed that the
goods seized were sold and the net proceeds were paid over to the
creditor, amounting to nine thousand three hundred and fifty-nine
dollars and six cents, and that the balance of the judgment was
afterwards paid by a sale of the lands of the debtor situated in
another county.
By the record, it also appears that the debtor, during the same
month, filed his petition in the district court praying to be
adjudged a bankrupt, and that he was so adjudged on the ninth of
September following. Pursuant to those proceedings, the plaintiff
below was duly appointed the assignee of the bankrupt's estate, and
on the sixth of January of the next year he instituted this suit to
recover back the property, or the value of it, so received by the
creditor.
Briefly stated, what the plaintiff alleges is, in substance and
effect, that the debtor, being then and there insolvent, with a
view to give a preference to the creditor, executed and delivered
to him the said bond or note with the warrant to confess judgment
thereon against him for the specified
Page 88 U. S. 336
amount; that all the proceedings which led to the judgment,
execution, and levy were had with intent to give the creditor a
preference over his other creditors, and that the creditor bank
accepted the bond or note with the warrant to confess judgment and
received the proceeds of the sale of the property having reasonable
cause to believe that the debtor was insolvent and that the bond or
note, judgment, exemplification, execution, and payment were made
in fraud of the provisions of the Bankrupt Act.
Several counts were filed, but the particulars in which they
differ are not material to the questions presented in the
assignment of errors. Nor is it necessary to reproduce the pleas
filed by the defendant, as it will be sufficient to say that they
controvert every material allegation of the declaration except the
execution and delivery of the note and warrant to confess
judgment.
Witnesses were introduced by the plaintiff tending to show that
the debtor was insolvent when he gave the bond or note with the
warrant to confess judgment, and that the debtor gave it to secure
a preference to the creditor over his other creditors, and that the
defendant had reasonable cause to believe that the debtor was
insolvent and that the bond or note with the warrant to confess
judgment was given in fraud of the provisions of the Bankrupt
Act.
On the other hand, the defendant introduced witnesses whose
testimony tended to prove that the debtor at that time was not
insolvent, that he did not then contemplate insolvency or
bankruptcy, and that the defendant had no reasonable cause to
believe or suspect that he was insolvent or that he contemplated
anything of the kind.
Matters of that sort, however, are not now in issue, as they
were submitted to the jury and the record shows that the verdict of
the jury was in favor of the plaintiff. All such matters having
been settled by the verdict of the jury, nothing remains except to
reexamine the questions of law presented in the bill of exceptions
or such of them as are embodied in the assignment of errors, which
are substantially as follows:
(1) That the court erred in charging the
Page 88 U. S. 337
jury as requested by the plaintiff in his third prayer.
(2) That the court erred in charging the jury as requested by
the plaintiff in his sixth prayer.
(3) That the court erred in charging the jury as requested by
the plaintiff in his eighth prayer.
(4) That the court erred in refusing to charge the jury as
requested by the defendants in their first prayer.
(5) That the court erred in refusing to charge the jury that the
circuit court will not take jurisdiction in such a suit where it
appears that the judgment of a state court has been perfected by
levy or sale and distribution of the proceeds of the sale of a
defendant's property among his lien creditors.
(6) That the court erred in permitting the plaintiff to give
evidence as to the value of the property beyond the amount made out
of it and paid to the bank.
(7) That the court erred in rejecting the offer of the
defendants to prove by the debtor that he did not procure the
execution to be issued or the seizure of the goods to be made.
I. Three of the errors assigned are addressed to the charge of
the court, which was substantially as follows:
1.
"That everyone is presumed to intend that which is the necessary
and unavoidable consequence of his acts, and that the evidence
introduced that the debtor signed and delivered to the defendants
the judgment note payable one day after date, giving to them the
right to enter the same of record and to issue execution thereon
without delay for a debt which was not then due affords a strong
ground to presume that the debtor intended to give the creditor a
preference and that the creditor intended to obtain it, and that it
is wholly immaterial whether the preference was voluntary or was
given at the urgent solicitation of the creditor."
Persons of sound mind and discretion must in general be
understood to intend, in the ordinary transactions of life, that
which is the necessary and unavoidable consequences of their acts,
as they are supposed to know what the consequences of their acts
will be in such transactions. Experience has shown the rule to be a
sound one and one safe to
Page 88 U. S. 338
be applied in criminal as well as civil cases. Exceptions to it
undoubtedly may arise, as where the consequences likely to flow
from the act are not matters of common knowledge or where the act
or the consequence flowing from it is attended by circumstances
tending to rebut the ordinary probative force of the act or to
exculpate the intent of the agent. Nor is it any valid objection to
the charge that the rule as stated is not one of universal
application, as the court is not able to perceive that it was too
broadly stated for the case to which it was applied, and the court
is the better satisfied with that conclusion in view of the fact
that the record shows that witnesses were examined upon the same
subject and that their testimony tended to prove the same
issue.
Equally unfounded also is the objection to the closing paragraph
of the instruction in question, as it is obviously immaterial
whether the debtor gave the preference with or without solicitation
from the creditor, if the evidence showed that he gave it as
alleged in the declaration; for if he gave it, the fact that he was
urged to do so by the creditor would constitute no defense to the
action.
2.
"That if the jury find that the quantity and value of the assets
of the debtor had not materially diminished from the date when the
judgment note was given till the day when he filed his petition in
bankruptcy and the day when he was adjudged a bankrupt, they may
find that he was insolvent when he gave the judgment note."
Even taken separately, it would be impossible to hold that the
circumstantial facts embodied in the instruction did not tend to
prove the hypothesis assumed by the plaintiff, and it is well
settled that the force and effect of evidence, whether direct or
circumstantial, should be left to the jury; but much other evidence
was given to prove the same issue, and it would be an unreasonable
construction of the charge to suppose that the court in submitting
that proposition to the jury intended to exclude from their
consideration all the other evidence in the case which was
applicable to the same issue, and it is clear that the instruction,
when viewed in
Page 88 U. S. 339
the light of the circumstances under which it was given, is
entirely unobjectionable.
3.
"That the measure of damages is the value of the property seized
and sold by virtue of the execution issued on the judgment obtained
against the debtor."
Instead of that, it is contended by the defendants that the
amount realized by the defendants is conclusive as to the value of
the property seized and sold; but the plaintiff was not a party to
that proceeding, and the express provision of the Bankrupt Act is
that the assignee may in such a case recover the property or the
value of it from the person so receiving it or so to be benefited
by it. Sold as the property was at a judicial sale, it cannot be
recovered in specie, and the only remedy of the assignee is for the
value of it, and no doubt is entertained that the rule prescribed
as the measure of damages by the circuit court is correct.
[
Footnote 5]
4.
"That the circuit court erred in refusing to charge the jury
that, inasmuch as the thirty-fifth section of the Bankrupt Act does
not specify the giving of a warrant to confess judgment as a
prohibited act, that no recovery in this case can be had under that
section and that the verdict must be for the defendant."
Much discussion of the proposition embodied in that prayer
cannot be necessary, as it is repugnant to the words of that
section and to the repeated decisions of this Court upon the same
subject.
5. Complaint is also made that the court below erred in refusing
to charge that the court would not take jurisdiction of such a case
where the claim had passed
in rem judicatam, and that the
goods had been sold upon the execution issued upon the judgment,
but it is too clear for argument that the proposition is
inconsistent with the provisions of the Bankrupt Act and utterly
opposed to the settled doctrines of this Court, which is all that
need be said upon the subject.
Page 88 U. S. 340
6. Evidence was given by the plaintiff to show the value of the
goods seized and sold, and the defendants excepted to the ruling of
the court in admitting that evidence, upon the ground that the
amount realized by the sale of the property was the true measure of
damages, but the Court here is of a different opinion, for the
reasons already given, which need not be repeated.
7. Burns, the debtor, was called and examined by the defendants
as a witness, and they offered to prove by him that the entry of
the judgment and the issuing of the execution were a surprise to
and wholly unexpected by him, and that from the time he was first
apprised of it he opposed the proceeding and endeavored to have the
judgment opened.
Under the ruling of the court, the defendants were allowed to
prove all acts which the witness did in opposition to the
enforcement of the judgment, but the court rejected the first part
of the offer of proof, to-wit, that the entry of the judgment and
the issuing of the execution were a surprise to the debtor, and the
defendants excepted to the ruling and now assign that ruling for
error.
Well-founded doubts may arise whether even what the debtor did
in opposition to the enforcement of the judgment was material to
the issue between the parties, as the whole matter, when the debtor
gave the note and warrant to confess judgment, passed entirely
beyond his control. By his own voluntary act, he empowered the
defendants to enforce the payment of the amount whenever they
pleased, in spite of any opposition he could make. Opposition under
such circumstances being wholly unauthorized and gratuitous and
useless, it could not serve to unfold, explain, or qualify the
antecedent act of giving the note and warrant to confess judgment,
as he knew when he executed and delivered the instrument to the
defendants that it gave them the irrevocable power to enter the
judgment and create the lien on his property and to sue out the
execution and to seize and sell the property to pay the debt; but
the evidence of what the debtor did in that behalf was admitted,
and the ruling of the
Page 88 U. S. 341
court not having been made the subject of an exception by either
party, it is not necessary to express any decided opinion as to its
admissibility.
Suppose the acts of the debtor in that regard were admissible,
still it is quite clear that it was wholly immaterial whether the
course pursued by the defendants in entering the judgment and
issuing the execution was expected or unexpected by the debtor, as
he had given them full power to do everything which they did do,
whether he consented at the moment or not, and in spite of every
opposition which he could make. Surprised or not, the debtor must
have known that the defendants, as against him, were plainly in the
exercise of their legal rights as derived from him under the note
and warrant to confess judgment. When he gave the instrument
conferring that power, he knew beyond peradventure that the
defendants could enter the judgment for the amount of the note
whenever they should see fit, and that the judgment when entered
would or might become a lien on his property, and that it would
secure to the creditor a preference over all his other creditors,
even in opposition to any remonstrance or entreaty he might make to
the contrary.
Such circumstances unexplained would certainly have some
tendency to show that the debtor procured his property to be seized
on the execution with a view to give a preference to the favored
creditor, but it is not necessary further to define in this case
the force and effect of such an instrument as evidence to support
such a charge, as other evidence was introduced by the plaintiff to
prove that issue, which is conclusively established by the verdict
of the jury. Power to enter the judgment was expressly conferred by
the warrant duly executed by the debtor, and the direct effect of
the judgment was to give the defendants a lien or the means of
effecting a lien upon the property of the debtor, and to authorize
the defendants to sue out the execution and cause the property
subject to the lien to be seized and sold to make the money to pay
the judgment.
Viewed in the light of these suggestions, it is obvious that
Page 88 U. S. 342
it was wholly immaterial whether the debtor was surprised or not
at the consequences, as they had all flowed from his own voluntary
act.
Several other questions were discussed at the argument, but
inasmuch as they are not within the errors assigned in the record
it is unnecessary to give them any separate examination.
Decree affirmed.
[
Footnote 1]
Given in reply to the plaintiff's third prayer.
[
Footnote 2]
Given in reply to the plaintiff's second prayer.
[
Footnote 3]
Given in reply to the plaintiff's eighth prayer.
[
Footnote 4]
14 Stat. at Large 536.
[
Footnote 5]
Conard v. Insurance
Co., 6 Pet. 274;
Comly v. Fisher, Taney's
Decisions 121;
Marshall v.
Knox, 16 Wall. 559;
Eby v. Schumacher, 29
Pa.St. 40; Sedgwick on Damages (6th ed.) 634; Mayne on Damages (2d
ed.) 317.
