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Brown Wiley.

a perfect finding by the jury upon the issue joined, and a regular judgment on the verdict, which was final, unless reversed; and certainly these are all the requisites of a record, according to the requirements of the twenty-second section of the judiciary act, to entitle a party to retain the judgment which has been given in his favor. (Minor et al v. Tillotson, 1 How. 287; Stevens v. Gladding, 19 How. 64; Lathrop v. Judson, 19 How. 66.) It is only when the special verdict is ambiguous or imperfect, or when it finds only the evidence of facts, and not the facts themselves, or finds but a part of the facts in issue, and is silent as to others, that this court can regard the finding as a mistrial, and order a venire de novo. (Barnes v. Williams, 11 Wheat. 415; Carrington v. Pratt, 18 How. 63; Prentice v. Zane, 8 How. 484.)

When the record exhibits such a state of facts, it is then competent for this court to remand the cause for a new trial, in order that the finding of the jury may be perfected. The record itself in such a case shows the imperfection which it is the purpose of the new trial to remedy, and it constitutes the basis of the action of the court in giving the order to send the cause down to a rehearing. No such imperfection appears on this record. On the contrary, the

record shows a perfect finding of the jury, and, on a care[* 442] ful inspection of the * transcript, we are unable to discover error in any part of the proceedings.

The judgment of the circuit court is therefore affirmed with costs.

TAYLOR BROWN, Plaintiff in Error, v. LEROY M. WILEY and others.

20 H. 442.

EVIDENCE-NEGOTIABLE PAPER.

1. Where the operation and effect of a written contract is settled by the general principles of law, that is taken to be the true sense of the instrument.

2. No parol testimony can be received to contradict or vary the meaning which the law affixes to such a contract.

3. Hence a bill of exchange payable twelve months after date, being protested for nonacceptance, parol proof cannot be admitted to show that there was an agreement that it should not be presented for acceptance until after a certain other draft was provided for.

THIS case is a writ of error to the district court for the district of Texas.

The matter is well stated in the opinion.

Mr. Reverdy Johnson and Mr. Hughes, for plaintiff in error.

Mr. Larocque, for defendants.

Brown v. Wiley.

* Mr. Justice GRIER delivered the opinion of the court. [* 447 ] Wiley and Co., plaintiffs below, declare on a bill of exchange drawn by Taylor Brown on Messrs. Campbell & Strong, of New Orleans, to order of plaintiff, dated 23d of March, 1854, and payable on the 1st of May, 1855. It was presented for acceptance on the 10th of June, 1854, and was protested for non-acceptance; of which the drawer had due notice.

It is admitted the bill was given for full value; but the defendant set up by way of special plea, and offered to prove to the jury, a parol agreement between him and the plaintiffs, that this bill should not be presented for acceptance till after a certain other draft, payable in May, 1854, was provided for, by placing funds in the hands of the drawees, who had agreed to accept the last bill after funds had been received to meet their acceptance of the first.

It is the rejection of this defense by the court below that is the subject of exception. It presents the question, whether parol evidence should have been received, to vary, alter, or contradict that which appears on the face of the bill of exchange.

When the operation of a contract is clearly settled by general principles of law, it is taken to be the true sense of the contracting parties. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts. Some precedents to the contrary may be found in some of our States, originating in hard cases; but they are generally overruled by the same tribunals from which they emanated, on experience of the evil consequences flowing from a relaxation of the rule. There is no ambiguity arising in this case which needs explanation. By the face of the bill, the owner of it had a right to demand acceptance

*

immediately, and to protest it for non-acceptance. The [* 448] proof of a parol contract, that it should not be presentable

till a distant, uncertain, or undefined period, tended to alter and vary, in a very material degree, its operation and effect. (See Thompson v. Ketchum, 8 John. 192.)

Any number of conflicting cases on this subject might be cited. It will be sufficient to refer to the decisions of this court, those of Texas, where the suit was brought, and of Louisiana, where the contract was made.

In the Bank of the United States v. Dunn, (6 Peters, 56,) this court have declared "that there is no rule better settled or more salutary in its application than that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement." The case of Brochmore v. Davenport, 14 Texas Rep. 602, a case precisely similar to the present,

Warner v. Norton.

adopts the same rule. The case of Robishat v. Folse, 11 Louisiana, and of Barthet v. Estebene, 5 Ann. Rep. 315, and several others, acknowledged the same doctrine, thereby overruling some early cases in Louisiana which had departed from it.

This being the only point urged by plaintiff in error as a ground of reversal, the judgment of the court below is affirmed.

FRANCIS WARNER, Plaintiff in Error, v. CEPHAS H. NORTON and

others. 20 H. 448.

SALE IN FRAUD OF CREDITORS.

1. In an action of trespass for taking goods, all the plaintiffs must have an interest in the goods, or the action cannot be maintained.

2. The weight of authority in this country is in favor of the doctrine that where no change of possession takes place on sale of personal property, it is prima facie evidence of fraud, but not conclusive, and may be explained.

3. That whether such a sale was fraudulent or not is a question for the jury, under all the circumstances; and if it was made to hinder and delay creditors, they must so find.

THIS is a writ of error to the circuit court for the northern district of Illinois, and the case is well stated in the opinion.

Mr. Dickey, for plaintiff in error.

Mr. Badger and Mr. Carlisle, for defendants.

[* 456 ]

[* 457 ]

* Mr. Justice MCLEAN delivered the opinion of the court. This case is brought before us by a writ of error from the northern district of Illinois.

* An action of trespass was commenced by Norton et al. against Warner, charging him with having seized and carried away personal property of the value of ten thousand dollars. The defendant pleaded not guilty, and by several special pleas set up that certain creditors of Augustus A. Haskins, who had left his residence at Lasalle, procured a writ of attachment, under the statutes of Illinois, which was directed to the defendant, as sheriff, in virtue of which he attached the personal property of Haskins, which is the trespass charged, &c.

The bill of exceptions taken on the trial will show the points of law which were made on the facts. The proof of the plaintiffs tended to show that Beman, one of the plaintiffs, had a claim as

Warner v. Norton.

creditor against Haskins for the sum of twelve hundred dollars, and that the firm of Norton, Jewett & Busby had also a claim of about three thousand dollars; that each of these claims had been put into the hands of one Anderson for collection, with authority to settle them; that on the 10th of January, 1855, the goods were chiefly in a hardware storeroom, and in the tin shop attached thereto, in the village of Lasalle; that up to that time Haskins had been carrying on the business of a hardware retailer and manufacturer of tinware; that while he was absent the business was conducted by one Atherton, his head clerk, who employed the operatives and superintended their work; that on the 10th of January, 1855, Haskins sold his stock to Beman, and the firm of Norton, Jewett & Busby, through Anderson as their agent, Anderson canceling the aforesaid debts, and giving his notes on time to Haskins for the balance of the price agreed upon; and thereupon, by way of putting the purchaser into possession, Haskins, Anderson, and Atherton being in the storeroom, Haskins got the key of the outer door, and gave it to Anderson, and Anderson gave the key and charge of the store and tin shop to Atherton, who, up to that time, had been carrying on the business for Haskins, but then undertook to act for Anderson.

Anderson and Haskins left Lasalle, and did not return until after the attachment was laid on the goods. Haskins never returned to reside there, and exercised no ownership over the goods after the sale. Norton, Jewett & Busby were the ostensible partners of their firm, but they informed Anderson that John C. Phelps and his brother were special partners. There was no further evidence to show the interest of the Phelpses, except the belief of the witness that they were parties, though he could not so state from his own personal knowledge. An objection to this defect of proof was made, but not insisted on.

The plaintiffs' proof further tended to show that the sheriff, on the 9th of February, 1855, did take property attached, and removed it; and evidence was offered to show that, [458] before and at the time of said sale, Haskins was in failing circumstances, and that certain creditors had sued out writs of attachment, as set forth in defendants' special pleas, against the goods of said Haskins, and that the taking of the property complained of was by legal process.

Defendant offered further evidence, tending to prove that said sale was made secretly, but several of the plaintiffs' witnesses stated the sale was not made secretly, and that, while the invoice was being made out, people were coming in and going out of the store

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Warner v. Norton.

as usual; that no steps were taken by any one to make the sale known until after the attachment was laid; that from the time of the sale, Atherton continued to control the goods and the business as before, and to all appearance was doing so for Haskins; that sales were made to customers as formerly, without notice to any one of the change of proprietors, and, in some instances, the bills and receipts of sales to customers were made out in the name of Haskins. No change was made in keeping the books; that the servants and operatives about the store and tin shop continued to work under the direction of Atherton, with no knowledge of any sale, and supposing the business was being carried on as formerly, and for the use of Haskins; but it did not appear that any of these things were authorized by the plaintiffs or known to them; and that this condition and course of things continued until the goods were seized by the sheriff.

After the testimony was closed, the court charged the jury: First, they must be satisfied, from the evidence, that the plaintiffs named in the declaration had a joint interest in the property sued for, or they must find for the defendant.

The jury found for the plaintiffs; which shows they were satisfied with the evidence on the point made, or considered the objection abandoned. If it were not insisted on in the court below, it cannot be raised here. There is no error in this charge of the court.

The second, third, and fourth charges were, "that if the jury believe from the evidence the sale was made for the purpose of hindering, delaying, or defrauding creditors, it was invalid as against the defendant; and that whether the sale was or was not fraudulent was a question of fact, to be determined by the jury under all the circumstances of the case. That if the sale was secret, and no means taken to apprise the public of it, these were facts which threw suspicion upon the transaction, but did not make the sale fraudulent in law as against the defendant."

It is insisted that the sale was void as matter of law [*459] against*creditors, and should have been so held by the court; and the case of Hamilton v. Russell, 1 Cranch, 310, 1 Curtis, 415, is cited as sustaining this position. In that case, Hamilton made an absolute bill of sale for a slave on the 4th of January, 1800, which was acknowledged and recorded on the 14th of April, 1801. The slave continued in the possession of the vendor until an execution was levied on him as the property of the vendor. Trespass was brought against the plaintiff in the execution, who directed the levy to be made. The court held, under the statute of Virginia against frauds, that an absolute bill of sale,

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