Jackson v. Myers, 18 Johns., 425; Wilcox v. Fitch, 20 Johns., 472; Pendleton v. Hughes, 65 Barb., 136; Young v. Heermans (supra).

18. If a fraudulent use of a valid settlement is made or is intended to be made, the impeachment of the conveyance may be carried back to the time when the fraud commenced.

| $1,474,000, the amount at which it was estimated in currency. This was nearly $1,000,000 in excess of the aggregate of the sum to which they severally claimed to be entitled out of the assets of that firm. They remained at its place of business, used its books, and applied its means in all respects as if that firm still sub

Jackson v. Cole, 4 Cow., 594; Dunlap v. Haw-sisted. kins, 59 N. Y., 347.

IV. Applying these well settled rules of law to the indisputable facts of this case, the following conclusions follow:

1. The deeds to Mrs. Sparkman were made in fraud of creditors, within the meaning of section 14 of the Bankrupt Law of 1867, and of the Law of New York of 1858, above referred to. 2. They were made with intent to hinder, delay and defraud creditors, within the meaning of the Revised Statutes of New York as above quoted.

3. Burrit and Sheffield were, under the New York Law of 1858, entitled to disaffirm, treat as void, and resist, the settlement.

4. The assignee of the bankrupt was, as such, vested by operation of law, through his appointment as assignee, with title to the property, and, 5. The plaintiff, concentrating in himself the rights of both Burrit and Sheffield and of the assignee in bankruptcy, is entitled to maintain the recovery which he has obtained, of the clearly identified proceeds of the property.

Mr. Justice Swayne delivered the opinion of the court:

Prior to the 1st of December, 1865, a copartnership existed in the City of New York, under the name of J. K. & E. B. Place. They were dealers in groceries. The members of the firm were James K. Place, Ephraim B. Place and James D. Sparkman. The latter was a special partner. Under the law of New York, such partners can put a limited sum at risk, and are liable for nothing beyond it. At the time mentioned, this copartnership was dissolved. E. B. Place retired, and a new firm was formed, under the name of J. K. Place & Co. The members were James D. Sparkman and James K. Place. By the terms of the agreement, Sparkman was to contribute capital to the amount of $200,000, and Place to the amount of $600,000, and the profits were to be apportioned accordingly. After making due allowance for the payment of all liabilities, the estimated value of Spark man's interest in the assets of the old firm was $262,000, of James K. Place's $227,000, and of E. B. Place's $168,000. The latter sum E. B. Place had a right to draw out at any time, and he subsequently received the most of it. The debts of the old firm at the time of the creation of the new one, exclusive of the sum due E. B. Place, amounted to $3,850,000. Adding what was to be paid to him, they exceeded $4,000,000. A part of the assets of the old firm was merchandise on hand, valued in gold at $996,000. To this was added, to show its value in currency, forty-eight per cent. making an aggregate of $1,474,000. There was also cash on hand, consisting of balances in the banks with which the firm dealt, to the amount of $137,000. The other assets were chiefly bills receivable and accounts in favor of the firm. J. K. Place & Co. put no new capital into their concern. They bought the merchandise of the former firm at

By a deed bearing date on the 30th of November, 1865, James D. Sparkman assigned the leasehold premises here in question to James K. Place. By a like deed, dated on the 1st of December following, Place assigned the same premises to Mary A. Sparkman, the wife of James D. Sparkman. Both these deeds were acknowledged on the 5th and recorded on the 9th of the month last mentioned. The premises were the family residence of Sparkman. At the time of this transaction he settled upon his wife also the horses, carriages and furniture which formed a part of the establishment. He likewise directed his counsel to prepare the proper instrument for settling upon his wife $40,000 of seven per cent. bonds of the United States, which he had received as his proportion of a larger amount of those securities belonging to the old firm. He afterwards claimed that this settlement had been made. In one of his answers to the bill in this case he said: "That being about to embark as a general partner in the said firm of James K. Place & Company, and being well advanced in years, he was desirous of making, in favor of his wife, Mary A. Sparkman, since deceased, a settlement of a portion of his property; and on or about the first day of December, 1865, having paid in his proportion of the capital to be contributed by him to the firm of James K. Place & Company, he directed his counsel to take the proper steps to secure to his said wife from his then existing remaining property, the sum of one hundred thousand dollars ($100,000), or thereabouts."

What was done touching the property mentioned was the intended realization of this plan. It is not questioned that the several items were worth the amount proposed to be settled. Mary Ann Sparkman died on the 18th of October, 1866. By her will, which bore date on the 20th of July of that year, she gave the income of her estate to her husband, James D. Sparkman, for life, and after his death, the estate to his children. She had none herself.

After her death, the leasehold premises were sold and conveyed by her executor to John Q Preble. He paid $18,196.60 in cash, and gave his bond and mortgage for $40,000, being the balance of the purchase money.

On the 27th of December, 1867, J. K. Place & Co. failed, and made an assignment to Burrit and Sheffield, for the benefit of their creditors. Subsequently, both the partners, Place and Sparkman, went into voluntary bankruptcy, and Sedgwick, the complainant, became their assignee under the Bankrupt Law. He filed this bill in the district court to reach the $40,000 of government bonds and the proceeds of the leasehold premises, and to subject them to his administration. That court decreed in his favor with respect to the bonds, but dismissed the bill as to the real estate. He thereupon appealed to the circuit court. There the decree of the district court was affirmed as to the bonds and reversed as to the realty. The court decreed,

UNITED STATES TRUST Co. v. SEDGWICK.

804-309

among other things, that the bond and mort- | follow, it is impossible to avoid the conviction gage of Preble should be delivered to the complainant; that the amount due upon them should be paid to him; and that the executor of Mary Ann Sparkman should pay to the complainant, out of the assets of her estate, the sum of $28,304.89.

This amount was made up of the cash pay ment received by James T. Sparkman, while executor, from Preble, with interest to the date of the decree, and interest paid to the executor by Preble on his bond and mortgage, with interest upon that also to the same period.

The executor thereupon removed the case to this court by appeal.

The appeal was limited to the leasehold premises and the money decree against the executor. None was taken with respect to the bonds of the United States. That subject is not therefore involved in the controversy as it is now be fore us.

Two questions are presented for our determination:

(1) Was the settlement of the leasehold property valid?

(2) If not, was the money decree against the executor properly rendered?

that there was a deliberate plan to provide for the settler and his family in any event, and to throw the burden of the losses that might occur upon his creditors. The intention animating such conduct is condemned alike by ethics and within this category, and we are entirely satisthe law. We think the case before us falls fied with the judgment of the circuit court upon the subject.

for which the money part in the decree was But different considerations apply to the fund ecutor for property sold by him after the death rendered. The moneys were received by the exof Place, King & Place, and was lost to the esof the testatrix. It was lent by him to the firm tate by their failure. There is no proof that the testatrix took any part in bringing about the settlement, or that there was any guilty knowledge on her part in the transaction. It is fairly faith of her husband, and simply yielded obedito be presumed that she confided in the good attests her devotion to him. The fund did not ence to his wishes. The provision of her will nowise benefited by it. The transfer of the exist in her lifetime, and her estate has been in passive recipient. Her will, doubtless, influproperty was his act, not hers. She was only a enced if not controlled by him, gave him her entire estate for life and, after his death, gave it to his family. No provision was made for her family.

husband and wife are different. Usually she The sphere of the avocations and duties of knows little of business and property interests. It is natural that she should confide in his inkindly judgment. She is always sub potestate tegrity, and be guided in everything by his viri. Hence, the disabilities and safeguards which the law wisely throws around her.

On the first point we entertain no doubt. The debts of the old firm, as we have shown, were $3,852,000. The assets, as they appeared on the books, were $4,509,000. The debts were a sum certain, which grew constantly and largely by the accumulation of interest. How much less than their face the assets were worth does not appear. They were liable to constant depreciation, from the failure and insolvency of those from whom they were due. prices would have produced the same effect as A sudden fall of to the merchandise. The cash on hand was less than three per cent. of the amount of the liabilities to be paid. The assets of every kind, good and bad, exceeded the amount of the lia- for the torts and frauds of the wife committed Chancellor Kent says: "The husband is liable bilities to be paid, by only two ninths. He would during coverture. If committed in his company have been a bold, if not a rash man, who would or by his order, he alone is liable." 2 Com., have agreed to take all the assets and pay all 149. "And if a wife act in company with her the debts. No responsible person, we appre-husband in the commission of a felony, other hend, would have entered into such a stipula tion without a large premium in addition to the assets. The new Company was embarrassed from the beginning, and failed within a few days over two years from the time it was formed. It was found to be hopelessly insolvent. Its liabilities exceeded its means by at least $600,000. With these facts before us, we cannot hesitate to hold that Sparkman was in no condition to settle anything on his wife when the new partnership was formed.

The turning-point in this class of cases is always whether there was fraud in fact. The re sult depends upon the solution of that question. When one engaged or about to engage in any business has the means to meet its usual exigencies, and devotes such means in good faith to the business, and has besides other means which he chooses to settle upon any object of his bounty, unlooked-for disasters on his part, subsequently occurring, will not affect the validity of the settlement, because they afford no ground for the imputation of unfairness. But where there are heavy subsisting liabilities, doubtful solvency, a large settlement made upon the wife at the outset of the business, and failure and insolvency to a large amount shortly See 7 OTTO. U. S., Book 24.

1

than treason or homicide, it is conclusively pre-
sumed that she acted under his coercion, and
is, consequently, without any guilty intent."
Greenl. Ev., sec. 28. See, also, Loan As80. v.
Fairhurst, 9 Exch., 422, and Gordon v. Hay-
wood, 2 N. H., 402.

band is personally liable for any breach of trust
A feme covert may be a trustee, but her hus-
she may commit, and hence she cannot act in
the administration of the trust without his con-
Richardson, 4 J. J. Marsh, 712.
currence or consent. Hill, Tr., 464; Phillips v.
able upon the covenants of title in a deed exe-
cuted by herself and her husband. Schouler,
She is not li-
Dom. Rel., 155. Upon the subject of her disa-
bilities, see, Norton v. Meader, 4 Sawyer, 603.

and the error must be corrected.
This part of the decree was clearly erroneous,

v. Sedgwick, heretofore decided by this court,
The cases of Phipps v. Sedgwick and of Place
and not yet reported [ante, 591], were branches
of this litigation. They presented the same
questions of fact and law which we have con-
sidered in this case. Those questions were dis-
posed of as we have now determined them. The
fullness with which the views of the court,
speaking through Mr. Justice Miller, were

60

expressed, renders it unnecessary to add anything to what has been already said, on the present occasion.

This case will be remanded to the Circuit Court, with directions to modify the decree in conformity to this opinion.

JASPER K. HERBERT, Piff. in Err.,

V.

BENJAMIN F. BUTLER.

(See S. C., 7 Otto, 319-323.)

Bill of exceptions-direction to jury.

1. A paper in the record entitled a "case and exceptions," is a sufficient bill of exceptions, if it has all the requisites of a bill except the mere name. 2. Where the burden of proof is on the plaintiff to sustain the issue, and the evidence does not sustain it on his part, but the only direct evidence is to the contrary, the judge may properly direct the jury to find for the defendant. [No. 223.]

Argued Feb 13, 1878. Decided Mar. 25, 1878.

N ERROR to the Circuit Court of the Unit

"The following case and exceptions is agreed on by the attorneys for Jasper K. Herbert, plaintiff, and Benjamin F. Butler, defendant." Then follows the title of the cause, and a record of the proceedings had, and the evidence given at the trial, including the rulings of the judge and the exceptions thereto; and the case thus presented closes with the judge's certificate, as follows: "Settled as within, pursuant to the above consent. September, 19,1875. (Signed)

Charles L. Benedict.'

If this paper had been entitled a "bill of exceptions," instead of a "case and exceptions." there could not be any doubt that it would be a sufficient bill. It has all the requisites of a bill, except the mere name. A seal is not required, being expressly dispensed with by the Act of 1872, 17 Stat. at L., 196; R. S., sec. 953; and we had before decided that a seal is not essential in the courts of the United States. Generes v. Campbell, 11 Wall., 193 [78 U. S., XX., 110]. It has the sanction and signature of the judge, and, though settled after the trial, it was agreed upon by the parties; and hence it is free from objections which have prevailed in other cases. Generes v. Bonnemer, 7 Wall., 564 [74 U. S., XIX., 227]; Graham v. Bayne, 18 How.. 60 [59 U. S., XV., 265]. We think it is a suf

IN to Circutern District of New ficient bill of exceptions.

York.

The case is stated by the court.

Mr. J. K. Herbert, plaintiff in error, in person:

Second. Was any error committed in the rul ing of the Judge? The bill of exceptions shows that, after the evidence was concluded on both sides, the Judge directed the jury to find a verdict for the defendant. To this direction the plaintiff excepted, and it is the only error assigned here. The evidence is all set out in the bill, and the question is, whether the Judge erred in not submitting it to the jury.

It is conceded that the defendant was employed by the plaintiff, and continued in his employ to the end of the transaction. Defend ant was, therefore, plaintiff's agent throughout, and could make no contract about this matter of his agency, or receive money, otherwise than We decided in the recent cases of Improv. Co. to the use of plaintiff, even under a new con- v. Munson, 14 Wall., 442 [81 U. S., XX., 867], tract with Lamar in relation to the subject-mat- and Pleasants v. Fant, 22 Wall., 116 [89 U. S., ter about which plaintiff had employed him. XXII., 780], that although there may be some But he got $25,000 in and about said employ-evidence in favor of a party, yet if it is insuffi ment, and he admits that he knew plaintiff's contract was for $20,000, and that plaintiff agreed to give him half.

Upon the undisputed facts, therefore, the plaintiff should recover.

Howe v. Savory, 51 N. Y., 631; Dutton v. Willner, 52 N. Y., 312; Bain v. Brown, 56 N. Y., 285; Bruce v. Davenport, 36 Barb.,349; Marvin v. Buchanan, 62 Barb., 468; Story, Ag., 6th ed., sec. 217.

Messrs. Durant & Hornor, for defendant in

error.

Mr. Justice Bradley delivered the opinion of the court:

There are two questions in this case: first, whether there is any bill of exceptions by which we are authorized to look into the proceedings at the trial; and, second, whether, if there is such a bill, there is any ground for reversing the judgment.

First. Is there a bill of exceptions? The document relied on by the plaintiff in error as constituting such a bill, and certified from the court below as part of the record, is appended to the record of the pleadings and judgment, and commences as follows:

NOTE. When a verdict may be directed by the court. See note to Grand Chute v. Winegar, 82 U.

S., XXI., 174.

cient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render. As the question is fully discussed in those cases, it is unneces sary to repeat the discussion here.

After carefully examining the evidence, we are of opinion that it justified the direction given.

The action was for $10,000, money had and re ceived by the defendant from one G. B. Lamar. on the 15th of April, 1874, for the use of the plaintiff. Plea, general issue. The plaintiff and defendant were the only witnesses in the case.

The plaintiff testified, in substance, that G. B. Lamar, having obtained a judgment for $579,000 against the United States in the Court of Claims, and an appeal therefrom being pending in this court in October, 1873, Lamar em ployed him (the plaintiff) to get the appeal dismissed, and agreed to give him $20,000 for doing so; that he (the plaintiff) thereupon employed the defendant to assist him, agreeing to divide his fee with him, to which the defendant con sented; that thereupon the defendant proceeded and procured the dismissal of the appeal; that the plaintiff, not getting his fee, called on Lamar, who informed him that he had paid it to the defendant; that, on applying to the defendant, he admitted having received the money

MUTUAL LIFE INS. Co. v. HARRIS.

from Lamar, but denied that he had received
anything for the plaintiff.

The plaintiff further produced Lamar's check
to the defendant's order for the sum of $25,000,
dated April 16, 1874, and the defendant's re-
ceipt, dated April 17, 1874, in the following
words:

331-338

Lamar is in Washington, and I leave the bal-
Hon. B. F. BUTLER,
ance to you.
Yours truly,
Washington, D. C."

J. K. HERBERT."

HOUSE OF REPRESENTATIVES, WASHINGTON, D. C., April 12th, 1874. "Received, Washington, April 17th, 1874, of money in the case of Mr. Lamar, nor can I colSIR-I have no power or authority to collect Gazaway B. Lamar, twenty-five thousand dol-lect your fees. lars ($25,000), in full for retainer and services J. K. HERBERT, as counsel in the trial of his case against Albert Very truly yours, G. Brown and others, in the Circuit Court of BENJ. F. BUTLER." 58 Broadway, New York." the United States for the First Circuit, at Boston, and also in the preparations of the bill of exceptions and entry of the same in the Supreme Court of the United States, and also for retainer and argument of motion to dismiss the case in the Supreme Court of the United States, appellant, against him, from the judgment of the Court of Claims, and services in preparing a motion for dismissing the appeal, this being in full of all services and demands due by said Lamar up to and including the date which said appeal was dismissed.

BENJ. F. BUTLER."

The defendant, in his testimony, admitted the fact that he was employed by Lamar, through the plaintiff, in the matter of dismissing the ap. peal; he also admitted the receipt of the $25,000, but stated that he received this money in settlement of his own services alone; that he had been engaged in various other professional matters for Lamar, both before and after the dismissal of the appeal, and that his fees for these services were all included in the amount; and that he never received anything from Lamar for the plaintiff. In addition to this, he produced in evidence a letter from the plaintiff to himself, dated April 9, 1874, and his answer thereto, dated April 12, 1874, of which the following are copies:

"LAW OFFICES OF HERBERT & WILBER, 58 BROADWAY, NEW YORK, April 9th, 1874. MY DEAR GEN. -I am glad to see that Lamar's appeal is dismissed.

He agreed with me to pay $20,000 to have it dismissed; this with me. to Washington and employed you. immediately went asked me. What about fees?' I replied, You When you can have $5,000 or $10,000 if you like. I have an agreement with Lamar.' You said 'All right; on that assurance I will go to work:' and we started off for the Attorney-General's office.

Subsequently you told Lamar that I (you) must command the ship, or you would not sail,' or words to that effect.

Since that time I have left the matter with you.

Now I want to have you understand in relation to this matter, as I stated to you before leaving Washington, that Lamar's agreement is for $20,000 to have the appeal dismissed. I want you to collect the money and send me a check for any portion to which you may think me entitled.

I advised Lamar, when in Boston, to employ you and me in this case. The employment did not come until others had failed, which made it more difficult.

Nevertheless, the agreement between L. and myself, before I would call on you in regard to it, was as I have stated.

See 7 OTTO.

the defendant had settled with Lamar, that the It was after this correspondence, and after plaintiff (as testified by him) called on Lamar, and was informed by him that he had paid the defendant; and that the defendant, on being applied to, admitted the receipt of the money, but denied having received anything for the plaintiff.

evidence that upon the issue made by the pleadNow, it is evident from this outline of the ings, namely: whether the defendant received any money for the use of the plaintiff, there was no necessary conflict in their testimony. The have collected his (the plaintiff's) fees, as well plaintiff may think that the defendant ought to as his own. fendant expressly refused to do so when applied But he cannot deny that the deto for that purpose; and he does not, for he cannot, deny that the defendant (as he says, and as his receipt shows) may, in fact, have settled his own fees alone. Lamar's declaration cannot affect the defendant, especially in view of the express language of the receipt taken by him. Therefore, as the burden of proof was on the plaintiff to sustain the issue, and as the whole evidence taken together does not sustain it on his part, but the only direct evidence on the subject (namely: the testimony of the defendant, and the receipt given by him to Lamar) is to the contrary, the Judge properly directed the jury to find for the defendant.

been a conflict in the testimony of the parties The minor points in which there may have do not affect the main question.

The judgment is affirmed.

the foregoing is a true copy of the opinion of the
Court of the United States, do hereby certify that
I, James H. McKenney, Clerk of the Supreme
Court in the case of Jasper K. Herbert, Piff. in Err.,
said Supreme Court.
v. Benjamin F. Butler, No. 223, October Term, 1877,
as the same remains upon the files and records of

In testimony whereof I hereunto sub-
scribe my name and affix the seal of said
[L. S.] Supreme Court, at the City of Washing-
ton, this 11th day of April, A. D. 1885.
JAMES H. MCKENNEY,
Clerk, Supreme Court, Ú. S.

Citcd-109 U. S., 482; 4 N. W. Rep., 705.

THE MUTUAL LIFE INSURANCE COM-
PANY OF NEW, YORK, Piff. in Err.,

D.

J. MORRISON HARRIS, Substituted as As-
signee in place of HORATIO L. WHITRIDGE,
Deceased, Assignee of WILLIAM H. BRUNE.
(See S. C., 7 Otto, 331-338.)

State judgment, when evidence in another State.
1. A final judgment, determining the rights of