he had given, he opposed the whole proceeding and endeavored to have the judgment opened. This evidence, so directly tending to clear up all doubts about the most material fact in issue, was objected to as irrelevant and incompetent, and the objection was sustained as to the main part of the offer. The court ruled out so much of the evidence as would have shown that there was no collusion or concert between the debtor and the defendant and, consequently, no pro curement of the seizure by the debtor, but consented to receive proof of the acts which he did in opposition to it. It somewhat surprises us to find that, after this, the court rejected all the evidence of the debtor's acts in opposition to the execution and levy. The Clarion Bank was convicted of a fraud upon the other creditors of Burns, in the face of the fact that those other creditors of Burns conspired to use the Bankrupt Law as a fraud upon the Bank. The whole charge of the court, as well as all its rulings in the course of the trial, proceeded upon a misconception of the Bankrupt Law. We intend to maintain, if we can, the following propositions: 6. If the debtor opposed the levy: tried his utmost to prevent it was wholly unwilling that his property should be taken by one creditor while the others were left unpaid; if the execution was sprung upon him by surprise, and he fought the levy and sale until every expedient of opposition was exhausted, it is unreasonable to say that he fraudulently procured the seizure to be made, and equally unreasonable to allege that the Bank could have united with him in a fraud which he never committed. 7. If Burns, the debtor, conspired with the Pittsburgh creditors to petition under the Bankrupt Law, not in good faith, for the purpose of being discharged, but merely as a means of defeating the rights of the Clarion Bank, then the petition and the proceedings under it were a fraud upon this defendant, which takes away all title from the assignee to recover in this action, either for the use of the debtor or the creditors. Messrs. Geo. Shiras, Jr., and Jas. K. Kerr, for defendant in error: Three errors are assigned to the action of the court below. The first has to do with the definition of the term "insolvency. The defini1. A creditor may take from his debtor one tion adopted by the court was consistent with security for his debt as well as another; a judg- the terms of the statute, and is almost identicment note as well as a promissory note; a sin-al with a definition that received the approval gle bill under seal as well as a bond; and in any of this court in Toof v. Martin, 13 Wall., 47 case a proper use of the remedies which the (80 U. S., XX., 482). law of the State puts into his hands, is no fraud upon the Bankrupt Law. 2. Where the creditor institutes proceedings for the recovery of his just debt in the state court, and obtains a judgment which is a lien upon the debtor's land, or takes out an execu tion, or issues an attachment, which is a lien upon his personal property, the debtor cannot devest such lien or defeat the legal rights of the creditor, by afterwards applying to the Bankrupt Law. All liens legally acquired for just debts, at any time before the petition, are and ought to be respected by the Bankrupt Law and by the courts which administer it. And this is true even where the debtor was known to be insolvent when the judgment was rendered, or the security given on which it was obtained. 3. The acceptance of a warrant of attorney to confess judgment, by a creditor, from a debt or known to be insolvent, is not in itself a fraud upon other creditors; nor is it made an offense against the Bankrupt Law. The 39th section simply declares it to be an act of bankruptcy on the part of the debtor, but does not enumerate the acceptance of it among the acts which a creditor is forbidden to do under the penalty of losing his debt. 4. The only legal ground of recovery that could exist in this case was, that the debtor procured the seizure of his personal property under the execution issued by the Bank in violation of the 35th section. 5. To justify a recovery under the 35th section, it was necessary to show that the debtor willfully and actively engaged in getting the seizure made, with the fraudulent intent to pay the debt to the Bank out of property which ought to be devoted equally to all his creditors alike, and that the creditor, knowing or having good cause to believe him insolvent, took advantage of his fraud, and made himself a party to it by accepting its fruits. The same definition was given by Judge Dillon in the case of Wilson v. City Bank, 5 Bk. Reg., 274. The jury were told that a trader is insolvent, within the meaning of the Bankrupt Act, when he is unable to pay his debts, as they mature in the ordinary course of his business. The strictest definition of insolvency, usually obtaining in commercial circles, was not applied below, as it well might have been. The evidence disclosed that the bankrupt, Burns, was wholly without money with which to meet his maturing obligations; that before confessing the judgment in favor of the defendant, he had called a meeting of his creditors, and had endeavored to procure an extension, and that the officers of the defendant Bank had knowledge of these facts before they obtained and entered up the judgment. The business of Burns was that of a lumber merchant, and he also kept a large country store. Error is likewise assigned to the action of the court in refusing to charge that a previous alleged understanding between Burns and the defendant, that the former would execute and deliver to the latter a judgment bond, if and whenever the Bank should become dissatisfied with the indorsers furnished by Burns, would remove the case from the category of the 35th section. The mere statement of the proposition seems its sufficient refutation. A statute forbidding an insolvent debtor to grant a preference, cannot be evaded by showing that an agreement subsisted between the debtor and his creditor, and that such preference should be given whenever the latter should deem his other securities insufficient. The third and last assignment raises the question of the measure of damages. The court treated the sheriff's return as merely prima facie evidence of such value, and permitted the plaintiff to show that the property was really worth more than it sold for. But, | day, and on the 22d of the same month the at all events, the action of the court is justified by the language and reason of the statute, and by a recent decision of this court. The language of the Act is: "The assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited. This rule of damages was, in effect, adopted and approved by the court in the late case of Marshall v. Knox, 12 Am. Law Reg. (N. S.,) 630 (S. C., affirmed in 83 U. S., XXI., 481). In that case the defendants were held accountable for the "full value of the property, whether they realized that value or not.' Mr. Justice Clifford delivered the opinion of the court: Assignees of the bankrupt's estate may recover back money or other property paid, conveyed, sold, assigned or transferred contrary to the provisions of the Bankrupt Act, if such pay ment, pledge, assignment, transfer or convey ance was made within four months before the filing of the petition by or against the debtor, and with a view to give a preference to one or more of the creditors of the bankrupt, or to a person having a claim against him, or who was under any liability on his account, provided the debtor was insolvent or in contemplation of insolvency, and the person receiving such pay ment or conveyance had reasonable cause to believe that a fraud on the Bankrupt Act was intended, or that the debtor was insolvent. 14 Stat. at L., 536. sheriff seized certain quantities of white pine boards, amounting in the whole to a million and two hundred thousand feet, and three days later the same officer seized the stock of goods owned by the debtor. Suffice it to say that such proceedings followed that the goods seized were sold and the net proceeds were paid over to the creditor, amounting to $9,359.06, and that the balance of the judgment was afterwards paid by a sale of the lands of the debtor situated in another county. By the record it also appears that the debtor during the same month, filed his petition in the district court praying to be adjudged a bankrupt, and that he was so adjudged on the 9th of September following. Pursuant to those proceedings the plaintiff below was duly appointed the assignee of the bankrupt's estate, and on the 6th of January of the next year he instituted this suit to recover back the property, or the value of it, so received by the creditor. Briefly stated, what the plaintiff alleges is,in substance and effect, that the debtor, being then and there insolvent, with a view to give a preference to the creditor, executed and delivered to him the said bond or note with the warrant to confess judgment thereon against him for the specified amount; that all the proceedings which led to the judgment, execution and levy were had with intent to give the creditor a preference over his other creditors, and that the creditor Bank accepted the bond or note with the warrant to confess judgment and received the proceeds of the sale of the property, having reasonable cause to believe that the debtor was insolvent, and that the bond or note, judgment, exemplification, execution and payment were made in fraud of the provisions of the Bankrupt Act. Several counts were filed, but the particulars in which they differ are not material to the questions presented in the assignment of errors. Nor is it necessary to reproduce the pleas filed by the defendant, as it will be sufficient to say that they controvert every material allegation of the declaration, except the execution and delivery of the note and warrant to confess judg ment. Two notes of $5,000 each were discounted by the defendant Corporation for the firm of which the debtor is the surviving partner. Each note was made payable four months after date and neither had become payable at the date of the transaction which is the subject of complaint. They were dated as follows, to wit: the first April 16, 1867, and the second March 16, in the same year, and each was indorsed by the firm of which the debtor was a member. Subse quently the senior partner of the firm deceased, and on the 9th of July next after the dates of the notes the officers of the Bank insisted upon a different security, and the debtor yielding to their importunity gave the Bank a new note, payable one day after date, for the sum of Witnesses were introduced by the plaintiff $10,000, with interest, coupled with a warrant tending to show that the debtor was insolvent of attorney to confess judgment against him when he gave the bond or note with the warrant for the amount as of any term, with costs of suit, to confess judgment, and that the debtor gave waiving inquisition, and agreeing to the con-it to secure a preference to the creditor over his demnation of any property that may be levied other creditors, and that the defendant had reaupon by any execution which may issue forth-sonable cause to believe that the debtor was inwith on failure to comply with the conditions hereof, also hereby waiving the benefit of the exemption laws, or any Act of Assembly, relative to executions now in force or hereafter to be passed, as more fully set forth in the record. Armed with that power the creditor, on the 18th of the same month, entered judgment against the debtor for the sum of $10,300 in one of the State Courts, under the warrant of attorney annexed to the note, and by exemplification transferred the same to the county where the debtor resided and was engaged in busi ness. Promptitude seems to have characterized the whole transaction, and on the 19th of the same month the creditor filed a præcipe for a fieri facias, which it appears was issued on the same solvent, and that the bond or note with the warrant to confess judgment was given in fraud of the provisions of the Bankrupt Act. On the other hand, the defendant introduced witnesses whose testimony tended to prove that the debtor at that time was not insolvent, that he did not then contemplate insolvency or bankruptcy, and that the defendant had no reason. able cause to believe or suspect that he was insolvent or that he contemplated anything of the kind. Matters of that sort, however, are not now in issue, as they were submitted to the jury, and the record shows that the verdict of the jury was in favor of the plaintiff. All such matters having been settled by the verdict of the jury. nothing remains except to re-examine the ques tions of law presented in the bill of exceptions, | he gave it as alleged in the declaration; for if or such of them as are embodied in the assign- he gave it, the fact that he was urged to do so ment of errors, which are substantially as fol- by the creditor would constitute no defense to lows: (1) That the court erred in charging the the action. jury as requested by the plaintiff in his third prayer. (2) That the court erred in charging the jury as requested by the plaintiff in his sixth prayer. (3) That the court erred in charging the jury as requested by the plaintiff in his eighth prayer. (4) That the court erred in refusing to charge the jury as requested by the defendants in their first prayer. (5) That the court erred in refusing to charge the jury that the circuit court will not take jurisdiction in such a suit, where it appears that the judgment of a state court has been perfected by levy or sale and distribution of the proceeds of the sale of a defendant's property among his lien creditors. (6) That the court erred in permitting the plaintiff to give evidence as to the value of the property beyond the amount made out of it and paid to the Bank. (7) That the court erred in rejecting the offer of the defendants to prove by the debtor that he did not procure the execution to be issued or the seizure of the goods to be made. I. Three of the errors assigned are addressed to the charge of the court, which was substantially as follows: 1. That everyone is presumed to intend that which is the necessary and unavoidable consequence of his acts, and that the evidence introduced that the debtor signed and delivered to the defendants the judgment note payable one day after date, giving to them the right to enter the same of record and to issue execution thereon without delay, for a debt which was not then due, affords a strong ground to presume that the debtor intended to give the creditor a preference and that the creditor intended to obtain it, and that it is wholly immaterial whether the preference was voluntary or was given at the urgent solicitation of the creditor. 2. That if the jury find that the quantity and value of the assets of the debtor had not materially diminished from the date when the judg ment note was given till the day when he filed his petition in bankruptcy and the day when he was adjudged a bankrupt, they may find that he was insolvent when he gave the judgment note. Even taken separately, it would be impossible to hold that the circumstantial facts embodied in the instruction did not tend to prove the hypothesis assumed by the plaintiff, and it is well settled that the force and effect of evidence, whether direct or circumstantial, should be left to the jury; but much other evidence was given to prove the same issue, and it would be an unreasonable construction of the charge to suppose that the court, in submitting that proposition to the jury, intended to exclude from their consideration all the other evidence in the case which was applicable to the same issue, and it is clear that the instruction, when viewed in the light of the circumstances under which it was given, is entirely unobjectionable. 3. That the measure of damages is the value of the property seized and sold by virtue of the execution issued on the judgment obtained against the debtor. Instead of that, it is contended by the defendants that the amount realized by the defendants is conclusive as to the value of the property seized and sold; but the plaintiff was not a party to that proceeding, and the express provision of the Bankrupt Act is that the assignee may in such a case recover the property, or the value of it, from the person so receiving it or so to be benefited by it. Sold as the property was at a judicial sale, it cannot be recovered in specie, and the only remedy of the assignee is for the value of it, and no doubt is entertained that the rule prescribed as the measure of damages by the circuit court is correct. Conard v. Ins. Co., 6 Pet., 274; Comly v. Fisher, Taney, Dec., 121; Marshall v. Knox, 16 Wall., 559 [83 U. S., XXI., 485]; Eby v. Schumacher, 29 Pa., 40; Sedg. Dam., 6th ed., 634; May, Dam.; 2d ed., 317. Persons of sound mind and discretion must, in general, be understood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable consequences of their | acts, as they are supposed to know what the consequences of their acts will be in such transactions. Experience has shown the rule to be a sound one and one safe to be applied in crim- 4. That the circuit court erred in refusing to inal as well as civil cases. Exceptions to it un-charge the jury that inasmuch as the 35th secdoubtedly may arise, as where the consequences tion of the Bankrupt Act does not specify the likely to flow from the act are not matters giving of a warrant to confess judgment as a of common knowledge, or where the act or the prohibited act, that no recovery in this case can consequence flowing from it is attended by cir- be had under that section, and that the verdict cumstances tending to rebut the ordinary pro- must be for the defendant. bative force of the act or to exculpate the intent of the agent. Nor is it any valid objection to the charge that the rule as stated is not one of universal application, as the court is not able to perceive that it was too broadly stated for the case to which it was applied, and the court is the better satisfied with that conclusion in view of the fact that the record shows that witnesses were examined upon the same subject and that their testimony tended to prove the same issue. Equally unfounded also is the objection to the closing paragraph of the instruction in question, as it is obviously immaterial whether the debtor gave the preference with or without solicitation from the creditor, if the evidence showed that Much discussion of the proposition embodied in that prayer cannot be necessary, as it is repugnant to the words of that section and to the repeated decisions of this court upon the same subject. 5. Complaint is also made that the court below erred in refusing to charge that the court would not take jurisdiction of such a case where the claim had passed in rem judicatam, and that the goods had been sold upon the execution issued upon the judgment, but it is too clear for argument that the proposition is inconsistent with the provisions of the Bankrupt Act and utterly opposed to the settled doctrines of this court, which is all that need be said upon the subject. 6. Evidence was given by the plaintiff to show | strance or entreaty he might make to the conthe value of the goods seized and sold, and the trary. defendants excepted to the ruling of the court in admitting that evidence, upon the ground that the amount realized by the sale of the property was the true measure of damages, but the court here is of a different opinion, for the reasons already given, which need not be repeated. 7. Burns, the debtor, was called and examined by the defendants as a witness, and they offered to prove by him that the entry of the judgment and the issuing of the execution were a surprise to and wholly unexpected by him, and that from the time he was first apprised of it he opposed the proceeding and endeavored to have the judgment opened. Under the ruling of the court the defendants were allowed to prove all acts which the witness did in opposition to the enforcement of the judgment, but the court rejected the first part of the offer of proof, to wit: that the entry of the judgment and the issuing of the execution were a surprise to the debtor, and the defendants excepted to the ruling and now assign that ruling for error. Well founded doubts may arise whether even what the debtor did in opposition to the enforcement of the judgment was material to the issue between the parties, as the whole matter, when the debtor gave the note and warrant to confess judgment, passed entirely beyond his control. By his own voluntary act he empowered the defendants to enforce the payment of the amount whenever they pleased, in spite of any opposi tion he could make. Opposition, under such circumstances, being wholly unauthorized, and gratuitous and useless, it could not serve to unfold, explain or qualify the antecedent act of giving the uote and warrant to confess judg ment, as he knew, when he executed and delivered the instrument to the defendants, that it gave them the irrevocable power to enter the judgment and create the lien on his property, and to sue out the execution and to seize and sell the property to pay the debt; but the evidence of what the debtor did in that behalf was admitted, and the ruling of the court not having been made the subject of an exception by either party, it is not necessary to express any decided opinion as to its admissibility. Such circumstances, unexplained, would certainly have some tendency to show that the debtor procured his property to be seized on the execution, with a view to give a preference to the favored creditor; but it is not necessary further to define in this case the force and effect of such an instrument as evidence to support such a charge, as other evidence was introduced by the plaintiff to prove that issue, which is conclusively established by the verdict of the jury. Power to enter the judgment was expressly conferred by the warrant duly executed by the debtor, and the direct effect of the judgment was to give the defendants a lien or the means of effecting a lien upon the property of the debtor, and to authorize the defendants to sue out the execution and cause the property subject to the lien to be seized and sold to make the money to pay the judgment. Viewed in the light of these suggestions, it is obvious that it is wholly immaterial whether the debtor was surprised or not at the consequences, as they had all flowed from his own voluntary act. Several other questions were discussed at the argument but, inasmuch as they are not within the errors assigned in the record, it is unnecessary to give them any separate examination. Decree affirmed. Cited 21 Wall., 384. GEORGE M. OCHILTREE, Plff. in Err., v. THE IOWA RAILROAD CONTRACTING (See S. C., 21 Wall., 249-255.) Amendment to State Constitution, when does not impair contract-construction of liability of stockholders for corporate debts. ment; held, that the Amendment, thus interpreted, has not the effect of impairing the obligation of the contract as to such debts within the meaning of the Constitution of the United States. 1. Where, by the Constitution of a State, a liabil ity to double the amount of their stock was imposed upon stockholders in private corporations, and subsequently by an amended Constitution this provision was changed, so that the liability did not Suppose the acts of the debtor in that regard extend beyond the amount of subscribed and paid were admissible; still it is quite clear that it was up stock, and the Supreme Court of the State has wholly immaterial whether the course pursued holders in corporations subscribing after it went construed the Amendment so as to relieve stockby the defendants in entering the judgment and into operation, from the effects of the former Conissuing the execution was expected or unex-stitution as to debts contracted prior to the Amendpected by the debtor, as he had given them full power to do everything which they did do, whether he consented at the moment or not, and in spite of every opposition which he could make. Surprised or not, the debtor must have known that the defendants, as against him, were plainly in the exercise of their legal rights as derived from him under the note and warrant to confess judgment. When he gave the instrument conferring that power he knew beyond peradventure that the defendants could enter the judgment for the amount of the note whenever they should see fit, and that the judg. ment when entered would or might become a lien on his property, and that it would secure to the creditor a preference over all his other creditors, even in opposition to any remon 2. Those who subscribed for stock while the old Constitution was in force, were and remained liable under the double liability clause of that Constitution. Those who subscribed for stock after the amended Constitution took effect, were liable only under the single liability clause of such amended Constitution. 3. The repeal of the clause in the first Constitu tion did not deprive the plaintiff of any of the rights secured to him when the contract was made; they still exist, and the remedy to enforce them remains the same. If the corporation itself cannot pay, the members who composed it at the time of the repeal are unaffected by it, and there is nothing in the way of subjecting them to the double liability provision. [No. 486.] Submitted Dec. 11, 1874. Decided Jan. 18, 1875. IN of Missouri. 'N ERROR to the Supreme Court of the State it impaired the obligation of the creditor's contract. The case is fully stated by the court. Messrs. Geo. W. McCrary and James Hagerman, for plaintiff in error: The Supreme Court of Missouri, as early as March, 1869, construed the constitutional and statutory provisions, and held that they imposed the double liability on the stockholders who owned stock at the issuance of execution, and not upon the stockholders who owned stock at the time of the contract. McClaren v. Franciscus, 43 Mo., 452. This case has since been re-affirmed and the doctrine is well settled. Miller v. Great Repub. Ins. Co., 50 Mo., 55. This doctrine is in harmony with the following Massachusetts authorities: Curtis v. Harlow, 12 Met., 3; Marcy v. Clark, 17 Mass., 335; see, also, Nixon v. Green, 11 Exch., 550. The fact that defendant became a stockholder in the Missouri, Iowa & Nebraska Railroad Company after the constitutional Amendment of 1870, cannot affect plaintiff's rights. The contract of plaintiff was made first in order of time. The defendant assumed the burdens of a stockholder. It was bound to know the old law. We commend to the defendant the language of the Supreme Court of Massachusetts in Marcy v. Clark, 17 Mass., 335. All who are members of the Corporation are virtually defendants in the action, and have an opportunity to be heard in the form they have chosen by joining the Company. As to those who become members after judgment against a corporation, or after a debt has accrued, they voluntarily subject themselves to the inconvenience, having the means to satisfy themselves of the solvency of the company if they choose to make inquiry. Those who become inhabitants of towns after a liability for debt is incurred, are in the same predicament." Could the new stockholders complain? No. Because they should have known the law; that it could not tamper with the sacred rights of the Corporation creditors. An analogous principle to this was settled by this court at an early day. In Sturges v. Crowninshield, 4 Wheat., 122, where it was held that a state insolvent law could not discharge contracts existing at its passage, Chief Juitice Marshall, in delivering the opinion of the court, said: "It has been contended that, as a contract can only bind a man to pay, to the full extent of his property, it is an implied condition that he may be discharged on surrendering the whole of it. But it is not true that the parties have in view only the property in possession when the contract is formed, or that its obligation does not extend to future acquisitions. Industry, talents and integrity, constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contract; and to release them from this liability impairs their obligation." Hawthorne v. Calef, 2 Wall., 10 (69 U. S., XVII., 776), is applicable to this case. A thorough examination of this case convinces us that, on principle, it fully sustains our position. Messrs. T. T. Gantt, F. T. Hughes and A. J. Baker, for defendant in error: The case of McClaren v. Franciscus, 43 Mo., 452, only decides that the assignee of stock who holds it at the time of execution, and not the assignor, is liable upon execution. The plaintiff's counsel rely upon this case, and quote from it to establish the doctrine that all who are stockholders at the time of execution are liable, and draw from that the conclusion that the contract of the plaintiff was that all who might be holders of stock at that-as he calls it the "appointed "-time, should be liable to contribute personally to the payment of his debts. No such conclusion can be deduced from the opinion in that case; neither the facts nor the opinion warrant it. In Von Hoffman v. City of Quincy, 4 Wall., 535 (71 U. S., XVIII., 403), the court decides that a citizen, moving to Quincy after a debt has been contracted by the city, subjects all the property which he takes with him into the corporation, to taxation for the payment of such debts. It will not be claimed, however, that he subjects any of his property not so taken into the corporation to such tax. Just so in this case. The defendant puts of his property an amount equal to $100 per share, for each share of stock he subscribes, into the Corporation, and this becomes subject to the debts of the Corporation, whether contracted before or after his subscription. The law in existence at the time he made his subscription, however, did not subject any of his property over and above the par value of his stock to such debts, and this being the law of his contract, he cannot be made further subject. In Woodruff v. Trapnall, 10 How., 190, this court decides that bank-bills issued while the law was in force, making them a legal tender in payment of all debts due to the State, still continue to be a legal tender after the law is repealed, and that this is so, whether the notes came into the possession of the debtor before or after the repeal; but that notes of said bank issued after the repeal are not a legal tender. This is just what we claim here, and is the only case in point which we have been able to find. We say that personal liability is an incident which attaches to the stock and follows it into the hands of whoever may become the owner thereof; and that if issued before the repeal, it will be liable; but that if issued subsequent to the repeal, it will not be so subject. Mr. Justice Davis delivered the opinion of the court: By the Constitution of Missouri, adopted in 1865, a liability to double the amount of their stock was imposed upon stockholders in private corporations. This provision was changed by the We call the particular attention of the court amended Constitution of 1870, so that the liabilto the decision of the Supreme Court of Mis-ity did not extend beyond the amount of subsouri in the case of Provident Sav. Inst. v. Jack-scribed and paid up stock. This Amendment son Skating & Bathing Rink, 52 Mo., 552. In has been construed by the Supreme Court of that case, the court held that the constitutional the State as applicable to all stockholders in corAmendment of 1870 was null and void, because porations, who become such by original subscrip |