Crow v. Marshall

• Decision Date: 31 January 1852
• Citation: 15 Mo. 499
• Parties: CROW ET AL. v. MARSHALL.
• Court: Missouri Supreme Court

15 Mo. 499

CROW ET AL.

v.MARSHALL.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM BOONE CIRCUIT COURT.

On the first of January, 1847, Philip Crow, as agent for the respondents. Crow, McCreery & Barksdale, made an affidavit to the effect (among other things) that the appellant, Marshall, was about to remove his property out of the State, with intend to defraud, hinder and delay his creditors; that he had fraudulently conveyed his property so as to hinder and delay his creditors; that he had fraudulently concealed and disposed of his property so as to hinder and delay his creditors; and that he was about fraudulently to conceal and dispose of his property so as to hinder and delay his creditors; and, upon this affidavit, the respondents, on the same day, commenced suit by attachment against Marshall in the Boone Circuit Court, to recover the amount of Marshall's note of the 1st May, 1846, payable at four months, for $789 72 with ten per cent. interest after maturity.

Marshall's property being attached, he appeared and pleaded in abatement of the suit, that the matters stated in the affidavit were untrue, upon which issue was taken and after a mis-trial, at the March term, 1848, the cause was tried by a jury on this issue at the August term, 1849.

Upon this trial, the plaintiffs below gave evidence to show (among other things), that Marshall and Philip Crow (who was the plaintiff's agent) resided in Rocheport; and that Marshall had been a merchant there and bought the goods of the plaintiffs in St. Louis, for which the note in suit was given; that at and before the attachment, Marshall was largely involved in debt; that there were several large judgments against him, and other incumbrances by mortgages and deeds of trust upon his property; and a suit against him was then pending in the Howard Circuit Court for a large sum of money due to the bank; that at and before the commencement of the suit, Marshall had a drove of horses (the same subsequently attached), at a farm in Howard county, about five miles from Rocheport, that he had purchased and collected during the same season, for the purpose of taking to market in the south; that Marshall's debts, exceeded his property, and that these horses were about all the unincumbered property that he had at the commencement of the suit, and that he was preparing to start with them to the south, and that he had frequently promised Philip Crow, plaintiff's agent, to secure the debt but had neglected to do so.

The defendant, Marshall, on his part then gave evidence to show (among other things) that he was the owner of a large amount of property, consisting mainly of land, chiefly in Howard county, and slaves, which exceeded his liabilities; that the debts shown in evidence were honest debts for value and the incumbrances upon his property, given at the instance of his creditors in good faith to secure them; that he had paid off part of this indebtedness, and at the December term, 1846, of the Howard Circuit Court, he withdrew his plea to the bank suit and suffered judgment to go against him at that term, under an assurance from the bank officers that they would not interfere with his taking off the horses which he communicated to them that he had bought up for the southern market, and that it was notorious he had bought them for and intended to take them to that market. A great deal of other testimony was given on both sides, which is here omitted, the purpose of this statement being to show so much of the evidence only as is necessary to present to the court the question of law intended to be now insisted upon.

The plaintiff had given evidence that a few days before the attachment, and while Philip Crow, as agent for the plaintiff, and the defendant were in treaty about securing the debt, the defendant promised the agent that he would secure it by the remnant of his goods then on hand; but afterwards conveyed these goods in trust to secure Beman & Knox, and would not apply them as he had promised to do. The defendant called a witness and offered to prove by him that he (witness) had advised the defendant to secure Knox & Beman on these goods, as they were liable for him as his sureties. This evidence was objected to by the plaintiff and rejected by the court. All these opinions of the court were excepted to as they were given. The plaintiffs had a verdict and afterwards the defendant moved for a new trial on account of the verdict being against law and evidence--of the exclusion of the evidence offered by the...