Burt v. Perkins

Metcalf, J. It is no legal ground of exception, that tbo judge declined to instruct the jury, that payment by Perkins, Smith & Co., from the proceeds of their property, to Banker, Carpenter & Co., their creditors, was in fraud of the insolvent laws. Such instruction, if given, would have been idle, unless it had been followed by the further instruction that, by reason of such fraud on those laws, the sale of the property to Barbour, from which the proceeds which were paid to Banker, Carpenter & Co. were derived, was void as against Cooley, another creditor, for whom the plaintiff attached the same property — a doctrine for which there is no foundation in law. It is only when proceedings in insolvency are instituted against a party who has given a preference to one of his creditors over another, that such preference can be defeated on the ground of its being a fraud on the insolvent laws. Eastman v. Eveleth, 4 Met. 148, 149. In the present case, it does not appear that such proceedings have been instituted against Perkins, Smith & Co. And if they had been instituted, yet the assignee in insolvency could not recover back the money paid to Banker, Carpenter & Co. Wall v. Lakin, 13 Met. 167. 2. The instruction as to the burden of proving that the attached property did not belong to Perkins, Smith & Co. we think was wrong. That burden, under the defendants’ answer, was on them. Their receipt and promise were prima facie binding on them, and it was for them to show that they were not thereby bound. Powers v. Russell, 13 Pick. 76, 77. 3. The defendants were rightly permitted to show that they were not bound by their receipt and promise, by proving that the property for which they gave their receipt, and which they promised to redeliver to the plaintiff, was not the property of the parties on whom the writ of attachment was served, and [321] could not lawfully be applied to the payment of the attaching creditor’s demand. This has been repeatedly decided. Learned v. Bryant, 13 Mass. 224. Dewey v. Field, 4 Met. 383. Fisher v. Bartlett, 8 Greenl. 122. The plaintiff also, if sued for not seizing the attached property on execution, might defend himself, by showing the same fact. Fuller v. Holden, 4 Mass. 498. Cilley v. Jenness, 2 N. H. 87. Brydges v. Walford, 6 M. & S. 42, and 1 Stark. R. 389, note. Sawyer v. Mason, 19 Maine, 49. A new trial must be granted, in consequence of the misinstruction concerning the burden of proof. Exceptions sustained.