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FRANCIS WARNER, PLAINTIFF IN ERROR, v. CEPHAS H. NORTON

December 1, 1857

FRANCIS WARNER, PLAINTIFF IN ERROR,
v.
CEPHAS H. NORTON, ALBERT JEWETT, BENJAMIN C. BUSBY, JOHN C. PHELPS, JOHN J. PHELPS, ISAAC N. PHELPS, AND JAMES BEMAN, DEFENDANTS.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois.

It 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.

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 cancelling 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, 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 any one 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 any one 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 were 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.

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.]

The case came up upon this exception, and was argued by Mr. Dickey for the plaintiff in error, and Mr. Badger for the defendants, upon which side there was also a brief by Mr. Badger and Mr. Carlisle.

Mr. Dickey made the following points:

The question, whether a sale of goods, unaccompanied by a change of possession, is good as against creditors, has been a vexed question in England and in many of the United States. The weight of American authority is thought to be against the validity of such sales. ...


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