Holbrook v. Hyde

Hutchinson E delivered the opinion.‘of th-e court.. The o#r ' ly questions now litigated, upes this long case,, arise, upon. the., charge oí die court to the jury, arid their refusal to charge -as re* quested by the'defendant’s, counsel. The defendant ha-ving attached the.properly in question up.oawñts;again&t Ac Weihw'hap^ the cardinal point in dispute is, whether the property feektbgeddW» the plaiiítífls, or s<a belonged to said, Ah, as tobe liable to attachment for his debts. The facts ¡attempted to- hie proved, otuboih, ¡sides, and which arc necessary -in their character at feast, ,m pje* der to- determine the instructions: to the jury, to which either par- • ty might be entitled, -'appear in the case spread -out at- fell length,. Yet the opinion now to be expressed will- he pndferstood with only q.. concise reference to those facts. The counsel for the- defendant -contend',, and requested the court to insíract the jury, drat the plahifcfs. 'sho wed no vahé considera* tion for the property-. This-was refused by the court-. This request vrowld seeto to relato to. tbe. weight ©£ -evidence 5, hut probably it was not so intended.; but- rather that they had. pro* duced ao testimony to show- that they paid -a valid consideration for the property. If by this is meant that property which die plaintiffs purchased of Wefherhead, and drove to BmUMwo\ into their exclusive, possession,, and which was not-attached ¡fey the defendant, and is not sued for in this action, the refusal was correct} for no instruction should, ever be given upon matters for* ■eign to the issue, unless, it he. to lay them wholly out of the .question. If by this is intended that property which soever was- W^th-mdiead^' but which the plaintiffs placed upon their own- farms in tito, care of Wethwhaad, as their tenant, the refusal was also cor* sect, for it concerns not the defendant, whether the plain tifie paid feg the property* or whether- it was given to them, if it came pot from W^tfierhsad, their debtor 5 and hfe ability to pay- then? was not altered-or affected by it-., [300] If by this is intended that property which ever was Wetherhead?s, and which was attached by the defendant, and is embraced in the present suit, the refusal to charge in that precise form •was correct; for more than that, in favor of the defendant,was comprised in that part of the charge which secured to the defendant all the property he had attached, which had ever belonged to Wetherhead; and this, notwithstanding any conveyance by him to the plaintiffs, unless there had been a visible change of possession before the attachment. And here it should be recollected the case shows that none was attached by the defendant which had ever passed from Wetherhead into the possession of the plaintiffs. ■ The defendant also requested the court to instruct the jury, that the acts and doings of the plaintiffs were evidence of fraud against creditors. This was refused by the court. ' • Upon a genera], without a particular, view of the case, this refusal would appear erroneous, because there is testimony of such a character with regard to some of the property in controversy. Yet the defendant is not injured by this refusal; for if such instructions had been given, they would have been applicable only to that property which was secured to the defendant by that part of the charge which pointed out the fraud in law. This probably led to the inaccuracy of expression in the charge. The court, having given the defendant all the property he had attached, that was ever owned by Wetherhead, upon the principle that no sale to the plaintiffs had become complete by a visible change of possession, say they recollect no evidence of fraud in fact that requires any remarks from the court. This would have been incorrect,if applicable to that property which yet remained in possession of Wetherhead, after bills of sale of the same to the plaintiffs'. It’s thus remaining in his possession, and the circumstances of tire bills of sale, and part of the purchase money placed to account, might have been proper to have been left to the jury as evidence of fraud, with regard to that property, if a more direct and sure course, and one sanctioned by the repeated decisions of this court, bad not already taken in favor of the defendant. And surely, after all this, no further remarks were necessary from the court. Yet through fear of some forgetfulness or inattention of the court, [301] line jury were directed to give full weight to any such evidence recollected by .them; and were correctly instructed in what fraud in fact must consist, as applicable to this case, to wit, the plaintiffs getting into their custody, and claiming to own, the property that really belonged to Wetherhead, with intent to keep it from his creditors. It would have been incorrect for the court to have authorized the jury, from any testimony there was before them, to ■find for the defendant, with regard to any of the property claimed-that never did belong to Wetherhead. There was no testimony that the plaintiffs knew of' Wetherhead''s indebtednesss, till a few days prior to their taking home the steers and yearlings, which was shortly before the attachment of the defendant. Their knowledge then seemed only of an execution of about forty dollars. If the defendant, or the creditors of Wetherhead, would claim to hold the property which was transferred from Wetherhead to the plaintiffs, and had gone into the possession of the plaintiffs, their way would have been to have attached that very property, and then disputed the validity of the sale. But that dispute could not arise upon a litigation about other property, which never was owned by Wetherhead. No testimony could avail the defendant to hold,as belonging to Wetherhead, that property put on to the farm by the plaintiffs, which comes short of showing it transferred to Wetherhead, and no pretence of this kind is favored by the testimony in the case. The case of Donoghue vs. Trash, cited by the defendant’s counsel, turned upon the point that the debtor owned the property attached. All the right any others had in it was merely in trust for the debtor. The defendant further urges thatthe plaintiffs have suffered the property in question to be so mixed with thatof Wetherhead asnotto be distinguished on reasonable enquiry, and, therefore, they have no right to claim it,without first giving notice which was theirs,and making demand. The court refused on request, so to instruct the jury. And this court approve of that refusal. The defendant relies upon the case in 7 Mass. Rep. 123. The doctrine of that case is applicable only to such property as contain no natural or artificial marks by which it can he distinguished. In. that casé, the property was the furniture about the house, where: [302] two.families resided. Grain and goods, m g, store,: generally, if mixed with,others of like kind, cannot be easily distinguished,. But not so ofcattle. They are. not so similar in their appearance as to create uncertainty in, the toinds of those- who have known, them. The defendant might have learnt from those who sold, any of these to, Wciherhea.d Indeed, the same witnesses who would aid him on. trial,, could, direct him before he attached. Everett, for plaintiffs. Fkelgs and; J9. Mlhgg,ÍQt defendant, The. defendant objects to a -part of the charge as consist-; sng of abstract principles, without applying them to the case j and; cites the case of Mason vs. Silver, where such a course is deemed incorrect. This objection is found by reading the charge in detached parts only; when reading the whplp, removes the difficulty. Allusion is made to the designation of the fraud in law : but the observations upon that head are. immediately applied, and the property named, which the, jury might probably 'consider within that'principle. The defendant urges the hardship that the creditors should lose their debts against W'etherkead. Possibly there may be some other remedy in case of any equity. During t,he years that Wdherhead hired the farms at a given rent, there is no more, equity against the plaintiffs than against any other persons, During the years in which Wetharhead was a hired man of the plain- : tiffs, as they themselves avow, possibly they might be hpld'en to pay for the salt to give the cattle on the farm, and perhaps other ■ things of that character. Of this, however, we risk no opinion.— The circumstances of such claims but partially appear on the trial, of this cause. Upon the whole, the Court consider the verdict correct, in reference to the facts disclosed in the case, and no correct charge would produce a different verdict. The judgment of the County ‘Court is affirmed with cpst.