McDermott. v. Barnum

• Decision Date: 31 October 1853
• Citation: 19 Mo. 204
• Court: Missouri Supreme Court
• Parties: MCDERMOTT. Appellant, v. BARNUM & MORELAND, Respondents.

19 Mo. 204

MCDERMOTT. Appellant,

v.BARNUM & MORELAND, Respondents.

Supreme Court of Missouri.

October Term, 1853.

1 An instruction which tells the jury that they may infer a certain fact from other facts proved, is not the decision of any question of law, unless the presumption is one which the law raises.

2 If A. leaves his personal property in the possession of B., and with knowledge that he is holding himself out to the world as the owner of it, stands by and permits this conduct, he will be estopped from afterwards claiming the property as his own, against parties who have trusted B. upon the faith of it; nor is it necessary that A. should have known that B. designed to commit a fraud upon his creditors.

3 A case will not be reversed because irrelevant evidence was allowed to go to the jury, unless it could have misled or prejudiced them.

4. Certified transcripts from justices of peace are evidence, without proof of the justice's signature.

Appeal from St. Louis Circuit Court.

T. C. Reynolds, for appellant, argued at length the following, among other points:

1. The instructions given did not present the law to the jury fairly, nor in accordance with the former opinion of this court, and the instructions asked by appellant should have been given. 2. Irrelevant evidence was admitted, calculated improperly to prejudice the minds of the jury. 3. The transcripts from the justice of the peace should have been excluded. A justice's signature does not prove itself. One of the transcripts was a nullity on its face, for want of bond and affidavit by the plaintiffs.

Polk and Dayton, for respondents.

GAMBLE, Judge, delivered the opinion of the court.

The facts of this case are stated in the report of the former decision in 16 Mo. Rep. 115.

McDermott claims the slave in question as a purchaser from John C. Rogers & Co., in Virginia: that firm was composed of John C. Rogers, Hugh Rogers and one Lowe. The defendants claim as purchasers under an execution sale of the slave as the property of Hugh Rogers.

After McDermott obtained the conveyance of this, and other slaves, from J. C. Rogers & Co., he sent them, in care of one Janney, to the south for sale. Janney sent the slave in question to Hugh Rogers, at New Orleans, for sale, and Hugh brought him to St. Louis, where he kept him in his employment for some time, and exercised over him the ordinary acts of ownership, and held himself out as the owner, until the slave was seized and sold under execution.

The defendants insisted that the whole transaction between McDermott and John C. Rogers & Co. was fraudulent, and that the circum stances under which the slave had come to the hands of Hugh Rogers, and his subsequent conduct in relation to the slave, with the assent of McDermott, authorized the seizure and sale of the slave as his property.

There was much evidence given by the defendants on the trial, to which the plaintiff objected, on the ground that it was irrelevant.

It is not intended to review at length the different instructions which the plaintiff asked, and which were refused, nor those which were given on the motion of the defendants. The instructions on the last trial differ from those which were asked at the former trial, and which appear in the report of the case as referred to.

When the case was before decided in this court, the judgment was reversed on account of the giving of the fourth instruction asked by the defendant. That instruction has been changed, so that on the last trial it reads in these words: “If the jury find from the evidence, that the plaintiff himself or by his authorized agent, in collusion and fraud with John C. Rogers & Co., or any member of said firm, against the creditors of said firm, delivered the slave, in the declaration mentioned, to said Hugh Rogers, one of the firm of John C. Rogers & Co., and suffered and permitted him to retain the possession of, and to use and control the said slave as his own property; that, while said Hugh was so in possession of said slave, and controlling him as his own, he was regularly levied on and sold to satisfy one or more executions against said Hugh; that the defendants became the purchasers of said slave at such sale, without any notice of the claim of the plaintiff, the verdict ought to be in favor of defendants.” The change in the instruction was made by inserting the words in italics. The meaning of this instruction must be, that the delivery of the slave by McDermott to Hugh Rogers, and his suffering Hugh to retain and use the slave as his own, were both in fraud of the creditors of Rogers & Co., and in order that the jury, under this instruction, could find that fact, it was necessary that they should believe that the whole transaction between McDermott and Rogers & Co. and Hugh Rogers, was a mere juggling contrivance to keep the property out of the reach of the creditors of Rogers & Co. It was necessary that they should believe this, because it was impossible that the delivery of the slave to Hugh Rogers, and allowing him to treat him as his own property, could be a fraud upon the creditors of Rogers & Co., if McDermott was a bona fide owner. Putting his property into the hands of Hugh Rogers could not be fraudulent as to the creditors of Rogers & Co., or any other creditors, except his own. The instruction, then, as altered, although obscure in its present shape, requires the jury to find that all the transaction was fraudulent before they could, under its direction, find for the defendant.

1. The fifth instruction is, in reality, no instruction upon a question of law. Fraud, as a question of facts, was presented to the jury and this instruction, after detailing several facts, informs the jury that if they find them to exist, they may from them infer that the sale from Rogers & Co. to McDermott was fraudulent. In other words, the jury are told that certain circumstances would justify the conclusion that a conveyance was fraudulent in fact. This is more like a summing up of evidence than an instruction on a question of law. When the law presumes a fact from one or more other facts, the annunciation to the jury of that presumption is a declaration of the law of the case, and differs very materially from telling them, in a case where there is...