884
J'EDERAL REPORTER, yo1.
51.
by Messts. T; K. Skinker and Joseph Shippen in thelJ.riefs flledby them in the case ofU. B. v. Oonnty OOU1·t; 144 U. S. 568, 12 Sup. Ct,Rep. 921. Although 110 mention is made in the opinion of the supreme court of the questions thus presented and discussed, yet itm nst be presumed that they were considel'ed and determined adversely to the relator. .,
CON').'INENTAL
·lNs.
CO. OF CITY OF NEW YORK "'. INSURANCE Co. OF STATE OF PENNSYLVANIA. Second
Oourt oj' 1.
March 15,1892.)
In an action by insurance company against another"plaintiff alleged that, through the fraud of an ·agent employed by bothcompanles, it had pald larj!;e amounts 00· marine losses which defendant ought to have paid; that the fraud was effe«ted by shifting thertsks afte,r knowledge of disaster,-i!l some cases by reinsuring with plaintiff risks originally insured by defendant, in others 'by substituting plaintiff for defendant as the original iusu·rer, and in still otlietsby concealing reinsurance effected by defendant upon risks. originally bY plaintiff, thus throwing the whole burden of the loss upon plaintiff. that in proving the frlluds it was competent to show that during the same p<3riod the agent was committing II series of similar frauds upljn other companies, for which, he was agent, for the benefit of defendant; and that an the entriesmadain his books by his clerks pursuant to his instructions, in effecting the frauds, as :well as· the instructions themselves, both general and special, admissible liS part of the res gcstw. SAllIE-ACCOUNT BOOKS.
2.
It was proper to mllrk liS exhibits the pages containing the fals\3 entries, and the fact that such pages, as tbljly stood and .as they went ,to the jury, contained· other entries in no wise concerned with the case, was i.mmaterial when the plaintiff only proved and read the fraudUlent entries, and the objections taken were to these only.
8.
SAME-EVIDENCE OF PERJURED WITNESS-CORROBORATION.
It was immaterial whether certain entries, testified to by a witness whose former perjury was conceded. did or did not· corroborate his testimony, such evidence being offered and received, not as independent eVidence, but as part of the testimony of the witness himself,-as memoranda made b.V him at the time, and sworn to be cprrect, of dates,l;lamas, figures, and values, which no witness could be ex. . pected to carry in mind. Certain evidence was introduced whicb. would tend to show knowledge by defendant of the frauds practiced in its favor, if supplemented by other proof. But plaintiff failed to so supplement it. The court 'charged that no knowledge was proved. Held that, in the absence of a motion to strike out, this charge was all that was required.',' , The dates when was effected nowhere appeared on the books, and could only be fixed by the. position of the reinsurance entries, with relation to other entries which were dated.' Held, that it was competent, for this purpose, for a witness to testify from entries made by himself, altl!Ough such entries disclosed otber fraudulent reinsurances, ..'
4. SAME-INSTRUOTIONS.
5.
SAME-EvIDENOE OF DATlllB.
6.
SAME-COURS.E OF BUSINESS.
T.
Evidence showing the line of insuranCe and reinsurance carried by defendant company during the yell'1'was admissible as disclosing a general course of business, whereby defendant was found to he reinsured when was a loss to be paid, and not to be reinsured, however. large its risk, when none; for from this fact, in connection witjl others, it might fairly be inferred that the results were secured, not by sound judgment or good chance,but by fraudulent practices. . .
SAME.
That defendant received the fruits of the agent's frsuds sufficiently appeared from the fact tnat in ea<;h case of loss upon a risk insured .by defendant, and osten&ibly reinsured in part by pillintiff. t.be adjusted the loss, paid it out of runds of defendant in his hands, charged the whole amount to defendant, drew a draft on
CONTINENTAL INS. CO. NEW YORK ". INSURA:NCE
co.
PENNSYLVANIA..
885
plaintiff fo.- its p.-oporlion, credited the proceeds thereof to defendant, and sent plaintiff a receipt signed by him as agent, payment of the amount received; and that when a loss was settled he informed defendant that the transaction was closed, stating its net 10S8 after deducting the reinsurance, and, in his monthly statement, ,informing it that out of its funds in his hands he had paid its whole 1088 by appropriating therefrom the amount of the net loss. 8. SAME.
It was immaterial that the moneys were not physically transferred by the agent to defendant company. or that, after he thus used them to extingUish its debts, he became and remained indebted to it for a larger sum tban the aggregate of these sums. ,
The fact that the agent had charged the plaintiff with the amount of reinsurance on a certain loss, and had credited defendant with a like amount in cash, was sufficient prima facie evidence that he had paid such reinsurance for plaintiff, though it was not shown that he had, as usual, drawn a draft on plaintiff, or that plaintiff had remitted the sum to him. SAME-ADOPTION OJ!' ANOTHER'S FRAUD.
10.
The fact that defendant was ignorant of the frauds at the time is no defense, for the rule applies that one seekinl( to avail himself of the advantages of the fraud of anothe!', after knowiedge of the fraud, must be held to adopt the f!'aud, though at the time he was ignorant thereof.
Error to the Circuit Court of the United States for the Southern District of New York.. At Law. Action by the Insurance Company of the State of Pennsylvania against the Continental Insurance Company of the City of New York to recover $33,105, with interest. Defendant in its answer, by way of counterclaim, demanded judgment against plaintiff for $5,252.88, with interest. Verdict for plaintiff in the sum of $16,420.73. and motion for new trial denied. Judgment for said amount, and for interest thereon, the whole amounting to $18,732.20. Defendant brings error. Affirmed. Butler, Stillman &; Hubbnrd, (Thomas H. Hubbard and John Notman,of .counsel,) for plaintiff in error. Evarts, Ohoate &; Beaman, (Treadwell Cleveland, of counsel,) for defendant in error. Before WALLACE and LACOMBE, Circuit Judges. PER CURIAM. This is a writ of error by the defenllam in the suit below to review a judgment of the circuit court for the plaintiff entered upon the verdict of a jury. The assignments of error impugn the rulings of the trial judge in admitting evidence, and in refusing to instruct the jury to find a verdict for the defendant as to all, and especially as to several, of the causes of action in controversy. Error is also assigned of .some of the instructions given to the jury. The complaint contains 23 counts, each of which sets forth a different .and distinctcau!3e of action. Each of them charges that, by the fraudulent acts of an agent employed by both the plaintiff and defendant, the plaintiff was made to pay to a third party a sum of money whieh should have been paid by the defendant. The averments general to alt are, in substance,that in the years 1882 and 1883 one Lorenzo Dimick was the ,general agent at B,uffalo oOhe plaintiff, the de:'endant, and also of the two other insurance compauieshaviug local agents in other places, who .l\.ccepted applicl\.tionsand issued certificates for marine insurance; that
886
.J'EDERAL ·uPORTEB,voV51.
agefitcdndncted at Buffa16 fhe iVbole1:lusiness of inland maintbe usual course of his issued poUcies'ofinsurance and ,effected reinsurances in behalf ofthe several risks accepted by bim, or by the local agents, anda,djnst.ed hl the business ,bl drawing drafts on .the coJilPaPY:lDsurmg, Or, paylllgtherp,and charglllg the amount ap;amst its1tloneys in his hands. Seventeton,of the counts set forth causes of action of a similar character, and, in effect, aUege that, after Dimick had received information ora marineperilafleoting a particular risk been insured by the defendant, he fraudulentiy shiJted the risk, or gome part of it, upon the plaintiff, by reinsnring it in the name of the plaintiff. and, when loss ensned which the defendant was in fact pay, he caused the plaintiff to pay it as a reinsurance upon the tiskjthlltench of the payments so made was received by the defendant, arid was obtained the fraudulent acts of Diluick, done with the intention of cheating and defrauding the plaintiff for the benefit of the defendant. These 17 causes of action relate to different risks, and involve different voyages, dates, and ampuuts. The fifteenth and nine" teenth counts contain similar averments, except that the risks were first insured by thedefEmdant, and, after in.ormation of peril or disaster was received, Dimick substituted thepJaintifl' as the original insurer. Four of the other counts, the twcutieth to the twenty-third, inclusive, are for similar. eauses of action, except that they aUege thatrisks were originally insured by the plaintiff, arid had been reinsured by the defendant. but, after llews of peril or disaster, the reinsurance was eoncealed so as to relieve the de,elldant from the whole or part of its obligation. It appearedupon the trial that separate books were kept by Dimick for each company t in which the particulars of the imiUrances and reinsul'ances wereenteredj that the local agents who accepted applications flnel issued certificates for insurance transmitted reports, cnlleu "daily rl'por18." to Dimick, specifying the particulars of the risks taken by thelll; that the particulars oj these risks were entered in the books kept at Ell milo; that tWice in each week Dimick reinsured fisks which had bet'n taken by the local agents, distrilmting the amount of reinsurance between the several rompnnil'8 as he saw fit; and that rt'ports were forwarded by him. showing the ,particulars of risks insured or reinsured, dnily to the de.E>oclant, and ,twice in each week to the other companies. Accordinf!: to his course of husiness with the plaintiff ltnd the dt'fendant, he waS to rl'l1Iit to each to it, and on the 20th of every month allllloneys in his hand'S render to each a fuJI abstract of his business with it, including a statement of losses paid and the proofs relating to· the same. The evidence authoririledthe jury to find,that in many cases, alter a risk had been insured by a lora! agent with the defend'llnt, or by Dimick himself', he receivoo new80t' peril, by telegram or otherwise, and would reinsure the risk with one or more cifthe other by CAusing appropriate entries to be made in. the,bo6ks, and, in some cases, would cancel the original insurance; and substitute 011e or more of the other companies in the place of defendant, and, if the risk had bee11 originally insured with
CONTINENTAL INS. CO.
NEW,
YORK
'CO:. PENNSYLVANIA..
881
the plaintiff, or either of :the companies other than the defendant, and reinsured in part with the' defendant, would cance)' the reinsurance with the defendant, a.nd transfer it to one or more of the other ctllnpanies; that in these cases the reportstransrnitted by him to the several companies would not give any information M the real transaction, but only of the sub,stituted inSlirance; tbat when a loss waS incurred in any of these cases, he would adjust it ori the basis of the fraudulent insuraneeorreinsurance, and obtain payment thereof from the company or companies apparently liable therefor, by drawing drafts, or by charging the amount against funds in bis hands, thus exonerating the defendant to the extent to wbich be had fraudulelltly relieved it of its original obligation; and that all this was done by means of fraUdulent instructions by Dimick to bis clerks. by fraudulent entries in his books and papers, and by frauaulent statements in his reports and accounts rendered. Evidence was given by the plaintiff upon the trial tending to prove tha particular frauds in suit,and also tending to prove similar frauds by Diniick, committed in some instances as part-of the'same transaction. and in in a different transaction; about the same time. by which he'shilted losses of the defendant upon one or both of the other twocom'pltilies. The theory of the case for the plaintiff was that these frauds were part of a deliberate system de\'ised by Dimick to defraud the plaintiff lor the benefit of the defendant, from motivt'Sof personal interest on hiB part. The evidence did not show that defendant had an"knowledgeof the fraudulent acts of Dimi<:k. · In considering the assignments of error, those only will be noticed which have been relied upon at the bar, and in the brief of the for the plaintiff in error. As to those which relate to the admission of evidence, a few general considerations are pertinent. In actions fo\inded upon fraud, where intent is a necf>ssary ingredient, the largest latitude is allowed in the introduction of evidence, circumstantial as well as ,direct, to disclose the motive Ilnd prove the fraud; and anyeviuence having a tenrlency to prove the ofl'ense, though it maybe slight, is not incompetent. Such actions necessarily give rise to a wide range of investigation, for the reason that the motive of the defendant is issue. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry, or the failure of direct proof, objections to testimony on the ground of irrelevancy are not favored, for tbe reason that the force and effect of circumstantial facts usually and almost necessarily depend upon their connection with each 'other, and circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroboratedby moral coXncidences, be sufficient to constitute conclusive proof. Cl/sUe v. Bullard, 23 How. 172, 187; Hubbard v. Briggs, 31 N. 518,538; Beardsley v. Duntley,69 N. Y.577, 581. The case of fraud is one of the few exceptions to the general rule that other offenses of the accused are not relevant to establil:!h the main charge; and iUs the settled rule that, to establish fraud in a given transaction, evidence is admissible to show the commission of similar frauds
REPORTER,
vol. 51.
in similar, trll.llsactions had with other persons about the same time. Butler v. Watkin8,13 Wall. 456j ance.Oo. v·. Armatrcmg, 117 U. S. 591, 6 Sup. Ct. Rep. 877. It was enfor the plaintiff to show that, during the period covbYt1le frauds in suit, Dimick was committing other and a series of similar. upon the other insurance companies for the benefit of the defendan,t.;AJI the entries made in Dimick's books or papers by his to his were the acts of Dimick, and the enclerks, tries themllelves, as well as his instructions, general or special, to the clerks, vElrbal acts, and,as such, a part of the rea gatee of the transwllicb were sought to be shown. The evidence was therefore whicll tended to show that, in anyone of from the defendant to the plaintiff, Dimick the particular losses in, .did so by reinsuring it in part with the plaintiff, and in part with the oth,er two .forwpjoh he was an agent: or which tended to shoW that, injndependent t,ransactions oocurring about the same time, he cOD;lmitted similar frauds, or attempted to, upon one or both of the othel'tw,q companies; and the books and papers containing the entries by "hich (rauds were in part effected, as well as testilIlonY9f. the general and special instructions oCDimick to his clerks, It is of no consequence whether the evidence conl!istingof.!lch entries .was introduced and admitted upon a different theory itB:.cqp1petenoy;it, was competentfor the reason stated, and, if it also tended to corroborate witnesses whose credibility was doubtful, tb:at.oi.rc!lmstance did not impair its compet\::ncy. ,We pro\lood to notice mqre particularly some of the rulings in admitting testimony which are conwlained of. The pages from the insurance I:egisters kept by Dimiok contained, it is true, entries as to many risks in no wise concerned with this case, but no specific objecwhich tion was taken on that ground. The pages were offered and marked as eJl:hibits, properly so, even,if for identificatiou only, and the plaintiff proved apd read the entries upon them relating to insurances of risks which were the subject of the action. To these objectaken as immaterial and irrelevant, and in the light of that obtion was jectio,n only is the action of the trial judge to be reviewed. He cannot beheld to have erred in allowing the jury to see the entries as they stood on the pages,inthe absence of a specific request that the other entries on the page should in some way be kept from them, and, in the absence of anything to that effect on the record, we cannot assume that he allowed entrics which so plainly had nothing to do with the case to be read to the jury. People v. Dimick, 107 N. Y. 13, 25, 14 N. E. Rep. 178." The entries which were read. to the jury against the defendant's objection were in each instance indisputably parts of the .transaction in question, which was as much a reinsurance of the defendant as it was an insurance in the plaintiff. The proposition to be established was that reinllurances of the defeDdant's risks were effected with the plaintiff, after of disaster, to save it from loss. Dimick's relations with the three reinsuring companies were such that he was able to effect reillsurances
I4nool.nv.Ow,flin, 7
CONTINENTAL INS. CO. NEW YORK ". INSURANCE
PENNSYLVANIA
889
in all of them without exciting suspicion. The single fact that, in the case of the Ackley, for instance, where the defendant had $38,900 at risk. was reinsured in the plainonly the comparatively small sum of tiff, might indicate the mere exercise of ordinary discretion; but simultaneous reinsurance of all the amount at risk, (except 85,000,) in the other companies, might well be persuasive to the inference that he did so after the receipt of information that led him to believe the vessel was a loss. other evidence tending to show that whenever there was no loss there was no reinsurance. If the transaction, as plaintiff claimed,· was an effort to shift the burden of a known loss from the defendant's shoulders, it was not completed till all that was done by Dimick to effectthat object had been accomplished. Whether the various entries testified to by the witnesses whose former perjury was conceded did or did not corroborate their evidence on this trial is not material on the question of their admissibility. They were offered, not as independent evidence! or received as such, but were a part of the testimony of the witness himself, memoranda made by him at the time, sworn to by himself to have been true statements when made, and minuting a multitude of dates, names, figures, and values, the details of which no witness could be expected to retain in his unaided memory. As such they were admissible in connection with' his testimony. In8'Utance Co. v. Weidl',s, 14 Wall. 375. They were not "unproved copies of unproved accounts," as in Mining Co. v. Jihz8er,,130 U. S. 611, 619, 9 Sup. Ct. Rep. 665. To the refusal of the trial judge to strike out evidence as to· instructions given by Dimick to deduct certain percentages from premiums, no exception was taken, and it cannot be considered here. Thetestimony as to the James Wade and the Gleniffer, not included· in this action,! was offered to show knowledge on the part of defendant's manager in New York of Dimick's practice of protecting defendant by reinsnraace when he heard of loss or peril to the property insured. It tended' to :prove this if supplemented by further proof. Plaintiff failed to so supplement it, and the court expressly charged that no knowledge was proved on the part of the defendant, which is all that was required, (Penn8'!Jlvania 00. v. Roy, 102 U. S. 451,) certainly, in the absence of a motion 'to strike out, or to instruct the jury that all evidence as to these two vessels was to be disregarded. The testimony as to entries touching the Coyne, Jennie Matthews, Potomac, and California, vessels not in this action, was offered to prove dates of reinsurances which were the subject of suit. The dates when reinsurance was effected nowhere appeared, and it was not to be expected that any witness, even if he remembered the fact of reinsurances, could carryall the dates in his unaided memory. It was only by the position of the entries in the books, relatively to other entries where dates were minuted, (such as acceptance of original risk, reports to the companies, etc.,) that the witness who made the entries was able to testify that the effecting of the reinsurance in issue was on, before, or after some calendar date. To an extent sufficient to enable him to fix such date, it
ltEPQRTER;· vol.
/ j .'!
,ttlstify : the :bejba(l hbl1seJf rfin4tlH:lt the If t4 pl:Qye the j.t ,was" was aeJ-missibIe,. dlthO\'fgp.iit.; other fraudulent re.illsurances. Dutchess 00. '\l'l JJ;4W<lir,lg.:. 826. . . '.." , froDlthe other frauds, thus 'incident$U,yahown, Jayin.- requesttodirecrt thejury to disregard them.. But"aawe havebefor@ it WAS entitleQ. to no sucb direction·. thejury to as showing fraudto those whiCilhiwere complllint, and performed nt the;'Nlme time. ,Theevidenceshowingthe lines of insurance and reinsurance which the defendant hadcllrried during the year in m4teJrial. , as it did, a general system or business"the:result ofw,hichwAS that the ,was: tQU1){1 tQ'be rci,nsuredWhep':the:re .was. ,a .1oSlf,.to.be paid" and not to hoWeVellhlrgeitll risks, wnen tlleTa it was a faet fFQ'In,!which r mken inC9nn®tion with others, it might be fairly l'esult."'iw&le.secured, nQt by of sound judgment. :uor hy r"re ehlhQcej bQt' by frauqulent practices of the kipd testified;to by aec(>lnplicHs. ;:, ,The asaignment of error; PasEl<l.upQn the refusal orthe trial judge to di.rect a!verdictt'o'r the defend$nt rests up.bn the proposition that it did not apPear by the evidenCEl'tbAtthe deJendaut had received thelruits of any of the frauds committed by Dimick upop.. the plaintiff.. It was tbatin, each ·case .of a 10ss,upQn;ft risk insured by. the defendant, part·of ,wbich had, been ostensibly·rttinsu.red by the plaintiff, Dimick adjusteli theloss, /lnd :paid it to out offunds of the defendant in his the wholeamouJit to the defendant in his account with it, drewadrall on the plaintitf, flllr its, proportion as a reinsurer, credited defendant. in his account, and sent the the proceedsoftbedraftto him as agent for the defendant, acknowlplaintiff a: edging paynumtofthe amoll/.1t received. " Whenever a loss was settled htdnlormed ,the defendantthll.t: the closed, and of its nilt alter qeduoting ,the'reipsurance. by sending to it the "loss pticket;J' and in each infol'llled the defendant thltt Qut of its funds in his, hands he had paid its whole loss byappropriating therefrom only the amount of the net loss. , :The lIloneys thusrecehleQ :and applied by Dimick. to pay the defend,antI81()ss('s were received by the defendant as completely, for all practi· had them to .elll purposes,aa they would have been if .!the deiendant,and the defendant had paid them over to the assured in aettlement oithe loss. Pmtt v. Foote, 9 N. Y. :163. The law looks at :the substance of .the.trallsactiQot and is quite unconcerned about its form, Tb'" defendant got the :beue6.t of these moneys they were applied tQ.iextinguish'its debts to the assured, and because they increased its ,funds in the hands of its Qwn agent. It is quite immaterial that the moneys were not physically transferred by Dimick to the defendant, or that, after Dirnick·received them, and had used them to extinguish the
CONTINENTAL INS. CO. !!fEW YOBK"V. INSURANCE CO. PENNSYLVANIA.891
debt of the defendant, he subsequently became and remained indebted to the defendant in an amount hirgertban the aggregate of these moneys. Dimick not only assumed to act in obtaining them as agent for the defendant. but he appropriated them to discharge the debts of the defendant. The case is one for the application of the rule that he :who seeks to avail himself of the advantages Of th:eact of another, after knowledge of its fraudulent character, must be held to adopt the fraud, although at the time of the act he was ignorant of it. The doctrine is elementary, and prevails at law as well as in equity, that a person, though innocent himself, cannot retain an advantage obtained by the fraud of in the absence of some consideration moving from himself. The assignment of error. founded upon the refusal of the judge to direct the jury to find for the defendant as to the cause of action lor the loss of the cargo of the Manistee proceeds upon the theory that· the were not authorized to find lor the plaintiff upon the uncorroborated testimony of the witne.ss Richard Dimick, who concededly had testified falsely in respect to the same facts upon a previous occasion. There ill modern authOrity to the eli'ect that the question of the credibility of such a witness' is entirely one for the jury, when submitted to them under prudential instructions. . Dunn v. People, 29 N. Y. 523, 529; People v. O'Neil, 109 N. Y. 251, 16 N. E. Rep. 68. But this of error is invalid because of the testimony of the witness Neff, a witness whose credibility was not impeached tathe same purport as that of Richard Dimick. The assignment of error, because the judge refused to direct the jury to find a verdict for the defendant as to the cause of action for the loss of the cargo of the Nyack, proceeds upon the ground that there was no evidence that the plaintiff paid any part of the loss. It was not shown that Dimick had drawn any draft on the plaintiff for the amount of its reinsurance upon this loss, or that the plaintiff had remitted the amount to him; but it did appear that he charged it with the amount, and credited the defendant with a like amount in his cash book. ·As Dimick was the common agent of both parties, this was sufficient prima facie evidence that he hlid paid the reinsurance for the plaintiff. .If he had paid it, the case was as though the plaintiff had paid it. Unless he or the plaintiff had paid it, the defen.lant would not have been entitled to be credited, as it was, for the amount. The assignments of ettor thus considered are the only (mes which seem to require discussion. The judgment is affirmed.
892
J'BDDAL UPOBDB t
BICltBAM
eta!.
17. LAKE
et al. I
(l)Iatrict Ooun, N. D.Mi88iBstppi. December Term, 1883.) hulL"" ,An
J'OK BBl'lBJ'I'l' OJ' ClUIDITOBII-V.u.mITT-PaOVIllIOl'l J'OR ATTOBNlIYII"
,
L
in Missi881ppi for the benefit of creditors empowered the 88IIp,ee,,, proper exeoution of the trust, tt to employ competent attorney8 "to defenaa!ld 'proteot the tru8t oreated herein,'and this assignment, U the lame be .;The rule announced by the, 8tate lupreme court (MatU8on Y. Judd, 69 Mlsll. 9Il), such a provilion avoid8 the assignment if intended to provide paymeDt to be rendered after the conveyance is executed and reoorded, and for which the grantors are,llable; but that it does not avoid the deed, II it i80nly t.o ,aI/ply to aerv10es rendered to the a88igneein, defending the assignment , 'Held that. on anisslle as to the validity of an attachment i88ued on the .grOUM' .tbatthe assiglllilient was fraudulent in law, the oourt could not deolare that the a8signment vol4, and the question as to the purpd8eof the assignor waifor the jury. L 8.um"';;TmlD, ,"FILING CJ1lIMB. for the bene:il.t of direoting that oreditors named in a,oertaill. lIohedule 8hould be preferred in their order, further directed ,that ali the oreditors named iIi lIooertain other scMdu1.e should be paid ratably, and that, if the "ny oredito;rB hadbeen omitted from tbelatter sobedule, such acoidentaiomill!lion should not debar them from sharing In the distribution, but that 8uchcteditorB; if their claim. were unsecured by oollaterals, or otherwise, should be entitled, to share iu ,the distribution "upon proper preseutation of their aocounts; It ' 'J;teld, that the failure to fix, any definite time within which suoh omitted creditors; must file theirolaimllreudered the assignment void. SA.ME-ExQL"QSIOJll OJ"BBCUBIliJ> CREDITORs.
The faoHhat omitted creditors, whose debts were seoured by collaterals or othwere<'excluded .from , the benefit of the assignment, was also fatal to its validity; for, in a general assignment, creditors holding security cannot be entirely. ,8h)lMuh I'lla8?nable tiD;le must be fix,ed \yithin whioh ther may oome forward spd' acooulltfor theIr secu:i'ities and present theba1anoe of theIr' claims, or surrender, 8haFe in any surplus fund which may remain. PEI;I',l'S. , ' '.' "
'
In Miaaiesippi a general assignment for the benefit of creditor8, whioh provides .for tb;'e,payment .I)f fiotiti()us Ol:',simulateddebts, is frauduleu.t and void; and on an 8l\ to,t,he validity of. sll stta,opmentsl;lui)ltto be sustained on the ground that the de'bOOr has madeafraudUlentas8ignment; the question as to whether any of the deb1jS iPl'Ov;id\\ld .for are is for the jury to determine. I. OJ', GBA.JTOR, .',' . ". . '. "When proVides for the payment of a simulated debt,tbe presumption is·tlia1ftilegrantor1diew·it, if the debt was created by him; but the presump, tion;llI rebuttable, anll,OJ1 aulsllue. as to the Validity of ap atta.ohment 80ught to be 8ust8i»ed on th,e ground,that'the debtor has made a fraudulent assignment, it i8 a question !l'orthe Jury Whether,,the grantor knew, or had reasonable cause tOl!:now, ! .' tnl!'lthe .. SA.ME-PaOtINOII OJ' .cOURT ANI) JURl'. Wbel'& an &ttacbmept ill sought, to be sustained on the ground that the debtor hasD;lade, assignment i8 frauduleJ1.t in law, the faot that the aSSignment is, on its faoe" construotively fraudulent' and VOid, will not warrant the oourt in directblg'a'verdiet for tbe:attaehing creditor, whIm it appears that the attallhment was in fact issued before the making of the assigpment: fort to sustain the attaohment, it is necessary for the jury to find that, at the time toe attaohment was illlIued, defendant contemplated makipg the as8ignment.
..
At Law. Action by Bickham & Moore against Lake & Austin, in which an attachment was levied upon defendants' property. Among the grounds of attachment alleged in the affidavit was the following: "That they [defendants] have assigned or disposed of, or are about to lThi8 l'.ase, cited in Este8 v. Bpain, 19 Fed. Rep. 716, is now published 01 reques&, the opinion not haVing been heretofore received for publioation.