Glass v. Nichols , 35 Me. 328 ( 1853 )

Rice, .7.

— The defendant seasonably filed pleas in abatement which were overruled by the Judge of the late District Court, on demurrer. To that decision the defendant excepted, but has never filed his exceptions. What would have been the decision of this Court, had those exceptions been filed and presented, is not material. Not being before us, they cannot be considered.

Hannibal Longfellow was, prior to Oct. 11, ] 849, the acknowledged owner of the goods in controversy. On said 11th day of October, Longfellow transferred, by bill of sale, absolute on its face, the goods to the plaintiff. Subsequent to that transfer Samuel McLellan commenced an action against Longfellow and placed his writ in the hands of the defendant, who was a deputy sheriff, with directions to attach said goods as the property of Longfellow, which was done, and thereupon the plaintiff brought this action.

On the 22d of October, 1849, the, same Samuel McLellan brought another action, for a different cause, against said Longfellow, and summoned the plaintiff as his trustee, claiming to hold on the ground, that the sale from Longfellow to the plaintiff was fraudulent. The question whether the plaintiff should be held as the trustee of Longfellow was litigated before the District Court, and resulted in a judgment in which he was charged. To this adjudication of the District Judge exceptions were filed and prosecuted in this Court. McLellan v. Longfellow & Trustee, 32 Maine, 494. In that case, the Court, after excluding certain testimony which had been admitted in the Court below, proceed to say “ there will still remain evidence sufficient, in the opinion of the Court, to show that Glass had in his possession goods and effects of the principal defendant, which he holds under a conveyance that is not bona fide but fraudulent as to creditors of the defendant. Under the provisions of the R. S. c. 119, § 69, he is chargeable as trustee.”

It is admitted, that the parties in interest, in the case at bar, are the same as in the case referred to above, and that the goods and the bill of sale, by which they are claimed by the plaintiff are also the same. But it is contended, that the record of the decision of the District Court does not show that Glass held the goods fraudulently; the adjudication of that Court being simply, “ Trustee charged.” This may be true, but it is not material. As that case was transferred from the District Court, to this Court by exceptions, and under the provisions of c. 117, <§> 1, of the laws of 1849, was reexamined both as to fact and law and determined by the full Court. Upon that examination the Court found that Glass held the goods under a conveyance that is not bona fide, but fraudulent as to the creditors of Longfellow. By that adjudication the parties in this suit are bound. According to the agreement, judgment must be for the defendant.

Shepley, C. J., and Wells, Howard and Hathaway, J. J., concurred.