Platt v. Brown ( 1835 )

Wilde J.

delivered the opinion of the Court. The first exception to the instructions of the Court to the jury is, we think, conclusively settled- by the case of Harris v. Sumner, 2 Pick. 129. The only distinction between that case and this is, that there the fraudulent reservation in favor of the assignor was apparent upon the face of the assignment itself, and in this case the reservation was proved by other evidence. This fact being established by the verdict, and it was left to the jury to decide upon it from the evidence, we can see no distinction in principle between the two cases.

But if there were a shade of difference between them, the jury could not have been misled by the comparison, for the principles upon which the jury were instructed to proceed, were so fully and clearly laid down, that they could not be misunderstood. The jury were instructed, that if they “ believed from the evidence, that the balance of the consideration expressed in the assignment was secured by the notes of the plaintiff to enable the assignor to have the use and control of that part of the consideration, to the intent to delay or defraud his creditors, and all that was known to the plaintiff, the assignment would be void in the whole.” The remark, “that it would be like the case of Harris v. Sumner, void in the whole,” could not mislead the jury, even if the two cases were not in all respects similar; for still it would be true, that the cases are alike as to the fraudulent intent.

The second exception also must be overruled, on the authority of the case of Burlingame v. Bell, 16 Mass. R. 318. It was contended by the plaintiff’s counsel, that although the assignment were void as against creditors, yet the plaintiff, having been served with a trustee process previous to the taking by the defendant, had a right to keep possession of the property, to respond the judgment which might be recovered against him on that process. But in the case of Burlingame v. Bell it was decided, that an attachment in common form after an attachment by virtue of a trustee process, was valid , that under such attachment the goods were bound in the hands of the officer as well as in the hands of the trustee ; and that the trustee would comply with the precept in the execution under the trustee process, by demanding of the officer who had them in custody, to take them in satisfaction.

It has been said, however, that in this case there was no surplus properly to attach. But this does not appear and cannot be presumed. If the fact would justify the plaintiff in retaining the property, the burden of proof was on him to establish the fact.

As to the officer’s right to break open the store door after the plaintiff had refused to open it, there can be no question. If he had a right to attach the goods, he had a right to break open the door for that purpose, after he had been refused permission to enter, the key of the store being in the hands of the plaintiff.

Judgment on the verdict.