McGinty v. Flannagan
| Decision Date | 18 December 1882 |
| Parties | MCGINTY v. FLANNAGAN and another |
| Court | U.S. Supreme Court |
A. B. Pittsman, for plaintiff in error.
Jeff. Chandler, for defendant in error.
This is an action which arose in the course of the proceedings in that of Fitzpatrick v. Flannagan, ante, 369, the judgment in which has been in part reversed. Edward McGinty, the plaintiff in error, having in that cause appeared as a claimant of the property seized under the attachment, the same was delivered to him by the marshal, on taking a bond conditioned to pay to the plaintiffs in the attachment such damages as might be awarded against the claimant in case his claim should not be sustained, or, in that event, to return the goods to the marshal. Thereupon, in accordance with the statutory practice in such cases in Mississippi, and issue was joined between the plaintiffs in attachment and the claimant, to try their respective titles to the property. Upon this issue, evidence was submitted by the parties, tending to show substantially the same state of facts as appears in the principal case.
The court refused to give instructions asked on behalf of the defendant, and in lieu thereof, among others not necessary to be considered, gave the following:
'(2) It was the duty of J. J. Fitzpatrick, as such surviving partner, to sell and convert into money the goods and property belonging to said firm, and to collect the debts due the firm, and first apply the same to the payment of the debts due by the firm, and not to mingle the same with his own goods, so that they could not be identified, he being by law created a trustee for this purpose; but if he mingled them with other goods, so that they could not be identified, he thereby rendered his own goods liable for the debts of the firms, or [as?] those originally owned by the firm; and if he applied the proceeds of the sale of such goods, either originally owned by the firm or those afterwards purchased and mixed up with them, so that they could not be identified, to the payment of his private debts, such disposition operated as a fraud upon the rights of the creditors of the firm of which he was surviving partner and as to him rendered the sale void.'
There was a verdict and judgment for the plaintiffs in the attachment, which are brought into review by this writ of error.
The charge above quoted goes further than that which was considered and adjudged to be erroneous in the principal case. For here the jury were...
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Wells v. Holley
... ... C. A. 413, 57 U.S. App. 379, 85 F. 740; ... People v. Stephens, 71 N.Y. 527; Selway v. Fogg, ... 5 Mees. & W. 83; Fitzpatrick v. Flannagan, 106 ... U.S. 648, 660, 27 L.Ed. 211, 215, 1 S.Ct. 369. In the case of ... Kingman & Co. v. Stoddard, cited above, a full discussion of ... this ... ...
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