Joseph Adler, Lewis Schiff, Solomon Adler, and Lobe Rindskoff, Plaintiffs In Error v. Aaron Fenton, Oliver Lee, William Davis, and Merrit Cole

Citation24 How. 407,65 U.S. 407,16 L.Ed. 696
PartiesJOSEPH H. ADLER, LEWIS SCHIFF, SOLOMON ADLER, AND LOBE RINDSKOFF, PLAINTIFFS IN ERROR, v. AARON D. FENTON, OLIVER H. LEE, WILLIAM H. DAVIS, AND MERRIT T. COLE
Decision Date01 December 1860
CourtUnited States Supreme Court

THIS case was brought up by writ of error from the District Court of the United States for the district of Wisconsin.

The facts are stated in the opinion of the court.

It was argued by Mr. Doolittle for the plaintiffs in error, upon which side there was also a brief filed by Mr. Brown, and by Mr. Lynde for the defendants.

The points made by the counsel on both sides were so connected with the special circumstances of the case, that the effort to explain them to the reader would be fruitless without a long narrative.

Mr. Justice CAMPBELL delivered the opinion of the court.

This action was instituted by the defendants in error in the District Court, as creditors of two of the plaintiffs in error, Adler and Schiff, upon the complaint, that this firm had combined and conspired with their co-defendants in the court below, to dispose of their property fraudulently, so as to hinder and defeat their creditors in the collection of their lawful demands. By means of which fraudulent acts, they affirm they suffered vexation and expense, and finally incurred the loss of their debt.

The defendants pleaded the general issue. Upon the trial the plaintiffs proved that Adler and Schiff were traders in Milwaukie, and to carry on their business, in August, 1857, purchased of the plaintiffs, and other merchants in New York, upon credit, a large quantity of merchandise, which, with their other property, shortly after its delivery at Milwaukie, was assigned to one of their co-defendants, for the ostensible purpose of paying their debts, but really with the purpose of more effectually concealing it from the pursuit of their creditors.

There was testimony conducing to convict all the defendants of a common design to accomplish this purpose. The plaintiffs had extended a credit to Adler and Schiff of two, four, and six months. They caused an attachment to issue against this firm upon all their debt which had become due at the time these transactions occurred, which was levied upon sufficient property to satisfy it, and afterwards, and before the maturity of their remaining demand, this suit was commenced. At the time of the trial, this demand was their only claim against Adler and Schiff.

The defendants requested the court to instruct the jury, 'that a creditor at large, as such, has no legal interest in the goods of his debtor, and cannot maintain an action for any damages done to such property; and that if the defendants had been guilty of a conspiracy to remove the property of a debtor, and thereby to defraud his creditors, a creditor at large, not having a present right of action against such debtor, has not such an interest in the subject of the fraud as to enable him to maintain an action for damages against the defendants, and that the declaration discloses no cause of action against the defendants.' The court declined to give this instruction, but charged the jury 'that the plaintiffs sold their goods to Adler and Schiff on credit; they had no interest in the goods sold, or in the other property of these defendants, but an interest in the debt owing for the goods so sold on credit. And if the defendants have been guilty of a conspiracy to remove the property of Adler and Schiff, and they did so remove their property with intent to defraud the plaintiffs in the collection of their debt when it should become payable, even though it was not payable when such removal was effected, the plaintiffs have a cause of action after the debt became payable.' To enable the plaintiffs to sustain an action on the case like the present, it must be shown that the defendants have done some wrong, that is, have violated some right of theirs, and that damage has resulted as a direct and proximate consequence from the commission of that wrong. The action cannot be sustained, because there has been a conspiracy or combination to do injurious acts. In Savile v. Roberts, 1 Lord R., 374, Lord Holt said, 'it was objected at the bar against these old cases, that they were grounded upon a conspiracy, which is of an odious nature, and therefore sufficient ground for an action by itself. But to this objection he answered, that conspiracy is not the ground of these actions, but the damages done to the party; for an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution.' There are cases of injurious acts for which a suit will not lie, unless there be fraud or malice concurring to characterize...

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    ...543; Wood v. Amory, 105 N. Y. 278, 11 N. E. 636; Lough v. Outer-bridge, 143 N. Y. 271, 25 L. R. A. 674, 38 N. E. 292; Adler v. Fenton, 24 How. 407, 410, 16 L. ed. 696, 697; United States v. Greenhut, 51 Fed. 205; Re Greene, 52 Fed. 104; Randall v. Hazelton, 12 Allen, 412; Brackett v. Griswo......
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    ...of a civil action unless something is done pursuant to it which, without the conspiracy, would give a right of action"); Adler v. Fenton, 24 How. 407, 410 (1861) ("[T]he act must be tortious, and there must be consequent Consistent with this principle, it was sometimes said that a conspirac......
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