The plaintiff in replevin, James D'Wolf, claimed the merchandise
under an assignment executed by George D'Wolf and John Smith to him
in consideration of a large sum of money due by them to James
D'Wolf and in consideration of advances to be made to them by him.
The assignment transferred four vessels and their cargoes, three of
which vessels were then at sea and one in New York ready
to sail, the property of the assignors. The assignment was to be
void on the payment to James D'Wolf of the money due to him, and if
it should not be paid, the assignee to enforce the pledge by
process and arrest in all countries or places whatsoever and to
sell the same for the payment of the amount due by them, the
assignors, to George D'Wolf. The merchandise for which this action
of replevin was instituted, was part of the return cargo of one of
the vessels. The defendant Harris pleaded that the merchandise was
not the property of the plaintiff, but of George D'Wolf and John
Smith, and justified the taking of the goods of the plaintiff, as
marshal of the District of Massachusetts, by virtue of a writ of
attachment sued out in the Circuit Court of the United States for
the District of Massachusetts, in which suit judgment was obtained
against George D'Wolf. On the trial, the plaintiff in the replevin
proved the assignment, that large sums of money were due to him by
George D'Wolf and John Smith, that the goods were part of the
property assigned, that he had used all proper means to take
possession of the goods, but was prevented by the attachment issued
by the United States. The defendant proved that the goods were
imported into the United States by D'Wolf and Smith, and that at
the time of the importation, they were indebted to the United
States for duties which were due and unpaid to an amount exceeding
the value of the merchandise attached, and that the
Octavia, one of the vessels assigned, with a cargo on
board ready for sea, was at New York at the time of the assignment,
which ship was not delivered to James D'Wolf, the assignee, nor
were the bills of lading assigned, the cargoes on board the vessels
being consigned to the masters for sales and returns.
By the court:
"In the case of
Conard v. Atlantic Insurance
Company, 1 Pet. 306, it was decided that the
nondelivery of a vessel assigned to secure or pay a
bona
fide debt did not make the assignment absolutely void. This
Court is well satisfied with that opinion."
The deed of assignment conveyed to the assignee a right to the
proceeds of the outward bound cargoes on board the vessels assigned
to James D'Wolf.
The failure of George D'Wolf to deliver to the assignee the
copies of the bills of lading which were in his possession, did not
leave the property subject to the attachment of creditors, who bad
no notice of the deed. It was held in the case of
Conard v.
Atlantic Insurance Company, that such a transfer gives the
assignee a right to take and hold those proceeds against any person
but the consignee of the cargo, or purchaser from the consignee
without notice.
That the consignees of the merchandise were indebted to the
United States on
Page 29 U. S. 148
duty bonds remaining due and unpaid at the time of the
importation, did not, under the sixty-second section of the act of
March 2, 1799, make the merchandise, as to the United States, the
property of the consignees, notwithstanding the assignment, and
make the attachment of the United States for the debt due to them
sufficient to bar the action of replevin brought by the
assignee.
In the circuit court, the defendant in error instituted an
action of replevin to recover a quantity of merchandise claimed by
him under a special assignment executed to him by George D. Wolf
and John Smith to secure debts
bona fide due to him, and
which merchandise had been seized by Samuel D. Harris the defendant
in the suit, as marshal of the United States, under executions
issued at the suit of the United States against George D. Wolf and
John Smith, on judgments obtained against them for duties. The
marshal claimed to hold the merchandise as subject to the
executions, and the cause was tried in the circuit court in
December, 1827, and a verdict under the charge of the court was
given for the plaintiff. At the trial, the defendant prayed the
court to give certain instructions to the jury, which the court
refused to give, to which refusal the defendant excepted and
prosecuted this writ of error. These instructions appear in the
opinion of the Court.
The case was submitted to the court without argument, by the
counsel.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment of the Court of the United
States for the First Circuit and District of Massachusetts in an
action of replevin claiming the restitution of twenty-three cases
of silks which had been attached at the suit of the United States,
against George D'Wolf. The property was claimed by the plaintiff in
replevin under a deed dated on 19 November, 1822, executed by
George D'Wolf and John Smith, in which they acknowledged themselves
to be severally indebted to the said James
Page 29 U. S. 149
D'Wolf, in large sums of money, and agreed, in consideration
thereof, and in consideration of other advances to be made by the
said James D'Wolf, to convey, and did convey, to the said James
D'Wolf the ship
Octavia, then lying in the port of New
York nearly ready for sea, and the three brigs
Quill,
Arab, and
Friendship, then actually at sea, their
tackle, &c., and the proceeds and investments of their cargoes,
&c., which said vessels and cargoes were the property of the
said George D'Wolf and John Smith. To this conveyance a condition
was annexed that it should be void on the payment to James D'Wolf
of the money which should be due to him; on the failure to pay
which it should be lawful for the said James D'Wolf, at any time or
times, to enforce the pledge by process, and arrest of the premises
or any part thereof in all courts or places whatsoever, and cause
the same to be sold, and the proceeds to be applied in satisfaction
of the moneys which may then be due from them, or either of them.
The silks were part of the return cargo of one of these
vessels.
The defendant pleaded that the said silks were not the property
of the plaintiff, but of George D'Wolf and Smith, and justified the
taking thereof, as marshal of the district by virtue of a writ of
attachment sued out of the court of the United States for the said
district, in which suit the United States obtained judgment against
the said George D'Wolf.
At the trial, the plaintiff proved his deed of assignment, that
the silks were part of the proceeds of the cargoes of the ship
Octavia and brig
Arab, that he had used all
proper means to take possession of them, and that they were
attached by the defendant, as marshal, by virtue of process sued
out by the United States. He also proved debts against George
D'Wolf and John Smith, severally, on account of his advances for
them, which were intended to be secured by the deed of assignment,
to a very large amount.
The defendant proved that the said silks were imported into the
United States, consigned to George D'Wolf and John Smith, and that
at the time of the importation of said silks, said George D'Wolf
and John Smith were indebted to the United States in bonds given by
them respectively for
Page 29 U. S. 150
duties which were then due and unpaid, to an amount much
exceeding the value of the silks replevied. The defendant also
proved, that at the time the deed of assignment was executed, the
ship
Octavia lay at New York, with her cargo on board,
nearly ready for sea, but that possession was not delivered, nor
were the bills of lading endorsed or delivered to the plaintiff.
The cargoes were consigned to the several masters for sales and
returns.
Many other circumstances were given by the plaintiff in
evidence, to show the fairness of the deed of assignment, which
were met on the part of the defendant by other circumstances, on
which he relied to show that in point of law it was fraudulent.
These do not affect the opinions given by the circuit court, to
which exceptions were taken, and therefore are not recited.
After the testimony was closed, the defendant's counsel moved
the court to instruct the jury that the deed of assignment was
fraudulent as to creditors, and void. This instruction the court
refused to give, but left it to the jury to determine upon all the
evidence of the case whether the said deed was executed with an
intent to defraud or delay the creditors of the said George D'Wolf
and John Smith, and if so executed, then the same was fraudulent
and void as to such creditors.
As the whole question of fraud was submitted to the jury, it is
incumbent on the plaintiff in error, if he would support this
exception, to show some defect in the deed itself, which makes it
absolutely void as to creditors, whatever may be the fairness of
intent with which it was executed. He relies on the fact that
possession of the Octavia was not delivered as making the deed of
assignment absolutely void.
This question was decided upon full consideration in the case of
Conard v. Atlantic Insurance
Company, 1 Pet. 386, and this Court is well
satisfied with that opinion.
The counsel for the defendant also prayed the court to instruct
the jury, that although the deed of assignment might be valid, it
could not transfer a right to the proceeds of the outward bound
cargoes, which instruction the court refused to give.
Page 29 U. S. 151
This question also is decided in the case of
Conard v.
Atlantic Insurance Company.
The counsel for the plaintiff also moved the court to instruct
the jury that the failure of George D'Wolf and John Smith to
deliver to James D'Wolf the copies of the bills of lading which
were in their possession, severally, when the bills of lading were
executed, leaves the property subject to the attachment of
creditors who had no notice of the deed. This instruction the court
refused to give.
In the case of
Conard v. Atlantic Insurance Company,
the Court determined that a deed of assignment such as was executed
in this case was capable of transferring the right to the proceeds
of the outward cargo as between the parties; of consequence, such
transfer gives the assignee a right to take those proceeds and hold
them against any person but the consignee of the cargo, or person
who is a purchaser from the consignee, without notice. These
principles were settled in the case which has been already
cited.
The counsel also moved the court to instruct the jury, that if
the consignees of the said silks were at the time indebted to the
United States, on duty bonds remaining due and unpaid, then, that
by virtue of the sixty-second section of the Act for the Collection
of Duties, passed 2 March, 1799, the said goods were, as to the
United States, the goods of the said consignees, notwithstanding
the said deed, and in the legal custody of the said collector, and
that the attachment in favor of the United States was good and
sufficient to bar the action.
This instruction was refused.
This question was considered and determined in the case of
Harris v. Dennie, decided at this term.
The questions raised in this cause have all been decided in this
Court as they were decided by the circuit court. There is no error
in the opinions to which exceptions have been taken, and the
judgment of the circuit court is
Affirmed with costs.
