John Conard, Marshal of the Eastern District of Pennsylvania, Plaintiff In Error v. Francis Nicoll, Defendant In Error

• Decision Date: 01 January 1830
• Citation: 7 L.Ed. 862,4 Pet. 291,29 U.S. 291
• Parties: JOHN CONARD, MARSHAL OF THE EASTERN DISTRICT OF PENNSYLVANIA, PLAINTIFF IN ERROR v. FRANCIS H. NICOLL, DEFENDANT IN ERROR
• Court: U.S. Supreme Court

29 U.S. 291

4 Pet. 291

7 L.Ed. 862

JOHN CONARD, MARSHAL OF THE EASTERN DISTRICT OF

PENNSYLVANIA, PLAINTIFF IN ERROR

v. FRANCIS H. NICOLL, DEFENDANT IN ERROR.

January Term, 1830

ERROR to the circuit court of the eastern district of Pennsylvania.

The defendant in error brought an action of trespass, in the court below, against the plaintiff in error, for a quantity of merchandize, consisting of teas, cassia, nankeens, &c. all of the value of one hundred and ninety-three thousand seven hundred and twenty-five dollars. Also for four ships, viz. the Addison, the Woodrop Sims, the Thomas Scattergood, and the Benjamin Rush, all of the value of one hundred thousand dollars.

The defendant below pleaded, that he, as marshal of the district of Pennsylvania, had a writ of fieri facias against one Edward Thomson, in favor of the United States, and that he seized the merchandize and ships as Thomson's property. The plaintiff replied, property in himself, &c. in the common form.

It was agreed between the parties to the suit, that the title of Francis H. Nicoll to the property should be tried, the property having been placed in the hands of trustees, to abide the event of the suit.

The case was tried in the circuit court, before Mr Justice Washington, and a verdict was given for the plaintiff for thirty-nine thousand two hundred and forty-nine dollars and sixty-six cents damages. The defendant in the circuit court excepted to the charge of the court, and prosecuted this writ of error. The whole charge delivered to the jury in the circuit court, was brought up by the writ of error.

By direction of the court, the whole of the charge delivered by Mr Justice Washington in the circuit court is inserted, as follows:- This is an action of trespass brought against the marshal of this district, for levying an execution at the suit of the United States against Edward Thomson, on the ships Addison, Woodrop Sims, Benjamin Rush, and Thomas Scattergood, and certain parts of their cargoes, alleged to have been the property of the plaintiff. The defendant justifies his proceedings under the allegation that the property levied upon belonged to Edward Thomson, against whom the execution was sued out.

The evidence given by the plaintiff to prove his title to the property in dispute, is substantially as follows: a respondentia bond in the usual form, dated in April 1825, on a certain part of the outward cargo of the ship Addison, with a memorandum annexed, reciting an agreement, that the outward bill of lading should be indorsed to the plaintiff, as a collateral security for the sum mentioned in the bond, and that the property to be shipped homeward, being the proceeds of the outward cargo, should be for account and risk of Edward Thomson, but to be consigned to order, and the bill of lading for the same to be forwarded to the plaintiff.

2. The bill of lading of the outward cargo, referred to on the bond and memorandum, for account and risk of Edward Thomson, indorsed by him in blank, and delivered to the plaintiff.

3. A homeward bill of lading and invoice for account and risk of Edward Thomson, consigned to order, and indorsed by the shipper at Canton, dated in November 1825; which, upon the arrival of the ship in the spring of 1826, were delivered by Peter Mackie, the head clerk of Edward Thomson, before his failure, and afterwards one of his general assignees, to the plaintiff.

The title to the cargoes of the other ships is in all material respects the same with that just stated.

The title to the ships themselves is claimed under bills of sale by Edward Thomson to the plaintiff, dated on the 9th of July and 27th of October 1825.

On the 19th of November 1825, Edward Thomson made a general assignment of all his estate to Peter Mackie and Richard Renshaw, for the benefit of his creditors.

The United States having obtained judgments against Edward Thomson to an immense amount, sued out and levied executions on these ships and their cargoes, at the moment of their respective arrivals in the spring and autumn of 1826.

In October 1826, the whole of this property was restored by the United States to the plaintiff, under an agreement between them that it should be without prejudice to any existing right, and that the plaintiff should sell the same to the best advantage, and should immediately invest the net proceeds, in the name of the secretary of the treasury, in productive stock, and place the certificates thereof in the bank of the United States, &c. and that the plaintiff should institute a suit against the marshal, to ascertain the right to the said proceeds; in which action, if the plaintiff in his own right, or as representing Smith and Nicoll, should establish his right thereto, then that the said proceeds should be paid to him; otherwise, the same to be paid to the United States. This agreement is recited in the condition of a bond executed by the plaintiff, with sureties to the United States.

An agreement had been previously entered into by the counsel in the cause, dated the 27th of September 1826, stipulating, that the merits only should be litigated, without regard to form.

In the case of the Atlantic Insurance Company vs. Conard, a great variety of objections of a legal character to the title of the plaintiff in that cause, which are equally applicable to that of this plaintiff, were stated and overruled by the supreme court, and they have of course been abandoned by the defendant's counsel in this cause. They rely nevertheless upon other objections, partly legal, but mainly resting upon the particular facts belonging to this case, and which are now to be examined. The duty of the court will be to give to the jury an opinion upon every question of a legal nature which the case presents; and after laying down certain general principles of law applicable to the evidence which has been given, to leave the facts to be decided by the jury.

The first objection to the plaintiff's title is, that the transfers executed by Edward Thomson to the plaintiff, for the property in dispute, were given without consideration. It is denied that any thing, much less the amount stated in those transfers, was due by Edward Thomson to the plaintiff, or to Smith and Nicoll, at the time they were executed. Upon this point, it is proper that the jury should be satisfied; and it is for them to decide upon the evidence, whether these securities were given for value received or not; if they were given without consideration, the plaintiff will have failed in establishing his right to the property, which they professed to transfer.

The plaintiff relies upon the following evidence to prove the consideration for which those securities were given. 1. The respondentia bonds and memorandum annexed, both under seal, and both of them acknowledging a loan to Edward Thomson of the sum expressed in them.

2. The negotiable notes of Edward Thomson to the plaintiff, or to Smith and Nicoll; produced in evidence by the plaintiff.

3. A settled account, signed by Mackie, on the part of Edward Thomson, and by Mr Worthington on that of the Nicolls.

4. Sundry entries in Edward Thomson's memorandum book.

The correspondence between the Nicolls and Edward Thomson is relied upon by the plaintiff as additional proof of the fact; and by the defendant's counsel, for the purpose of disproving it.

Upon this evidence the court has only to observe, 1. That even bills of exchange and negotiable notes of hand are prima facie evidence of value received, as well between the original parties, as third persons, so as to throw upon the party who denies the fact the burthen of disproving it^(b). The presumption is certainly not less strong where the acknowledgement of value received is under the seal of the party. If this be the settled law, as the authorities cited prove it to be, it is not competent to the defendant to shift the burthen of proof by giving notice to the plaintiff that

^(b) Mandeville vs. Welch, 5 Wheat. 282. Riddle vs. Mandeville, 5 Cranch, 322. Chitty on Bills, note 17 he would be required on the trial to prove that the securities under consideration were given for value received.

2. That a settled account between a creditor and his debtor being proved, is prima facie evidence of the balance stated on it having been due; which may nevertheless be impeached and disproved by pointing out errors in the account, and maintaining their existence.

It is insisted, however, by the defendant's counsel, that the consideration for these securities, admitting it to be proved, flowed from Smith and Nicoll, and that the plaintiff has given no evidence of an assignment by them to him. But, without noticing the agreement between the plaintiff and the United States as to the interest of Smith and Nicoll, represented by the plaintiff; it may be observed, that if the Nicolls and Edward Thomson were contented, and no agreed, that these securities should be given to the plaintiff for debts originally due by Edward Thomson to Smith and Nicoll, it cannot be essential to the plaintiff's recovery in this case, that he should produce a written assignment by Smith and Nicoll to him. If the plaintiff, as between himself and Smith and Nicoll, be not entitled beneficially to the property in dispute, or to its proceeds, that is a matter to be settled between them, and can form no question in this cause. That Edward Thomson assented to this arrangement is proved, prima facie, at least, by the securities themselves; and the objection relied upon cannot with propriety be urged by the United States, who claim the property in dispute as belonging to him.

The second objection to the plaintiff's title, and the one mainly relied upon, is, that the transactions between the plaintiff, and Smith and Nicoll, and Edward Thomson, upon which the transfers of the property in dispute were founded, were, as they respected the United States, fraudulent and void. Whether they were so or not, will be...