violation of law, rehypothecated said certificates, stock and bonds and caused the same to be sold and disposed of to satisfy certain indebtedness then due and owing by them, the said Henry S. Louchheim and Frederick Leser, and therein and thereby embezzled and converted to their own use said certificates, stock and bonds to the damage of said Joseph K. Chew $10,000."

The substance of the statement is that the defendants bought for the plaintiff certain bonds of the Philadelphia, Reading & New England Railroad Company (describing them with as much particularity as the circumstances allow) and 50 shares of stock in the Bergner & Engel Brewing Company, for which they took and held certificates; that the plaintiff furnished means, in advance, to pay a large part of the price, and subsequently paid nearly all the balance; that the object of the purchase was not speculation but investment; and that it was stipulated that the defendants should not part with or encumber the property, but safely hold it for the plaintiff, until the balance of purchase money should be paid; that the plaintiff subsequently tendered the balance and demanded possession of the property which demand was refused; and that the defendants wrongfully converted the property to their own use.

Were these allegations supported by the evidence—that is, might the jury have found them to be so supported? The motion for nonsuit was based on the assertion that there is no evidence of the purchase of certain, identified, bonds for the plaintiff, nor that certificates of stock were procured and held for him, as the statement alleges; and furthermore that if this were otherwise the plaintiff could not recover because he was not entitled to possession of the property at the time of the alleged conversion. The testimony describes the bonds with as much particularity as the circumstances allow, and as much as the statement does; and shows the defendants' admission that they had bought and were holding them for the plaintiff. As respects the stock certificates we think the evidence would have justified a finding that the defendants had procured and held them as claimed. It shows the defendants' written reports that they had purchased the stock; their repeated declarations that they had it, and were holding it for the plaintiff; that they had received dividends on it for him, and further that they had received several payments on account of the balance due for it. In the common course of dealing, certificates accompany the purchase of stock; they are the usual, if not the only evidence of purchase, transfer and title. It would seem clear therefore that the plaintiff was fully justified in understanding from the defendants' reports and declarations that they had, and were holding the stock for him, and that the jury would have been justified in finding this to be true. How could they have the stock, without having the certificates? What right had they to payments on account if they had not the certificates? Had the jury found, as it might, that the reports and declarations were virtual representations that the certificates had been procured and were held for the plaintiff, and that payments on account were thus obtained, it should have found the defendants to be estopped from denying the truth of the representations.

The conversion is clearly shown. Was the plaintiff entitled to possession of the property when it occurred? It is unimportant whether this event be referred to the date of the defendants' assignment for the benefit of their creditors, or to an earlier period when they pledged it for their own benefit. We are not called upon to consider whether this disposition of the property would have been justifiable in the absence of a stipulation that they should not part with it; with the stipulation it was clearly wrongful. The relation of the parties was that of bailor and bailee. The property was the plaintiff's, and the obligations of the defendants were the same as they would have been if he had delivered it to them to hold for the balance of purchase money. The defendants' transfer of it, whether for the payment of their debts, by the assignment, or previously to secure money borrowed, was a fraudulent conversion, which instantly terminated the contract of bailment, and vested the right of possession in the plaintiff. The right accrued, therefore, simultaneously, at least, with the act of conversion. Indeed it may justly be said that the entrance upon this fraudulent act vested him with the right. It was held in abeyance by the contract alone, and when that was terminated it no longer availed them for any purpose. In Berge & Co. v. Foster, 42 Leg. Int. 313, the syllabus which accurately states the decision is as follows: "Where oil held as collateral security, is sold without the owner's consent, be-. fore the debt matures, trover may be sustained." Reynolds v. Cridge, 131 Pa. St. 189 [18 Atl. 1010] decides the point in the same way. It is unimportant that the question was not discussed in either case. The defendant in each appears to have conceded the point. Brisben v. Wilson, 60 Pa. St. 452, is substantially in point. See, also, Cooley, Torts, 449, 450; 2 Hill. Torts (3d Ed.) 100-102; 2 Am. & Eng. Enc. Law, 58, 59; 2 Am. & Eng. Enc. Law, 741-743, 784, 785, and footnotes to the several pages.

The effect of the plaintiff's tender, and demand of his property, shortly before suing, need not be considered. One of the defendants only being present at the time, it would not affect the other so as to justify this suit against him. Whether it would justify the suit against the one of whom the demand was made, under the circumstances shown, may be open to doubt.

These questions were sprung upon the able trial judge under circumstances which afforded no opportunity for examination or reflection, and it is not surprising therefore that his first impression should have been such as he adopted.

The judgment must however be reversed.

RUCKER v. BOLLES.

(Circuit Court of Appeals, Eighth Circuit. April 19, 1897.)

No. 790.

1. FEDERAL COURTS-JURISDICTION-DIVERSE CITIZENSHIP EVIDENCE OF CITI

ZENSHIP.

For the purpose of proving that a plaintiff was a citizen of a certain state when his suit was filed, he may be asked the direct question of what state he was a resident at such date; but such question is improper when propounded to a third party, since such third party can only form an opinion of the plaintiff's intentions as to citizenship from his acts and declarations, which should be passed upon by the jury uninfluenced by the opinion of the witness.

2. SAME.

The fact that a party, in executing legal instruments, described himself as a citizen of a certain state, is evidence to show that at that time he regarded himself as a citizen of the state.

8. SAME.

The determination of the citizenship of a party, where dependent upon the question of intention to abandon one residence and take up another, is for the jury, under proper instructions.

4. CHAMPERTY AND MAINTENANCE.

The assignment of a portion of a claim in suit, in good faith, for a money consideration, the assignor retaining entire control of the suit, is not void either under the statute of Colorado concerning maintenance, or at common law, although the assignee have no previous interest in the claim. 5. SAME.

A bona fide contract for the assignment of a part of a claim in suit is not rendered invalid because the ulterior motive of one of the parties is to prevent a compromise of the claim, and to prolong the suit, in order to annoy and embarrass the defendant therein.

6. RELEASE AND DISCHARGE-CONSIDERATION.

The consideration for a release from a contract may consist in something detrimental to the party released as well as in something beneficial to the other party.

In Error to the Circuit Court of the United States for the District of Colorado.

This suit was brought by Richard J. Bolles, the defendant in error, against Atterson W. Rucker, the plaintiff in error, in the circuit court of the United States for the district of Colorado, the action being founded upon the following contract, to wit:

"This agreement, made this 16th day of April, A. D. 1892, by and between A. W. Rucker, of the county of Arapahoe, and state of Colorado, party of the first part, and Richard J. Bolles, of the city of New York and state of New York, party of the second part, witnesseth: That said party of the first part in consideration of the sum of twenty-seven thousand five hundred ($27,500) dollars, to him in hand paid by the said second party, the receipt of which is hereby acknowledged and confessed, has and does hereby sell, assign, and convey unto said second party, his heirs and assigns, one-fourth (4) of the amount of any judgment that may or shall be recovered by said first party in a certain cause or proceeding now pending in the district court of the county of Arapahoe, in the state of Colorado, wherein said A. W. Rucker is plaintiff, and Harvey Young, Jerome B. Wheeler, and others are defendants, in which action said plaintiff seeks to recover an interest in the Aspen Lode mining claim, situate in Pitkin county, in said state of Colorado, and an accounting and judgment for the value of the ores and minerals taken from said premises, and for a conveyance of an interest in said premises and the value of certain interests therein sold by defendant Wheeler; hereby selling and conveying one-fourth of any

judgment for money that may or shall be found or entered in said cause in said court, or in any court to which the same may or shall be removed; also in and to all contracts and agreements relating to said cause of action to the extent of one-fourth (4) of all moneys that shall or may be collected or otherwise, but no part of the interest or title that shall be recovered in and to said lode mining claim shall be held to be assigned under this contract. Said first party further agrees that he will prosecute said action, and all actions and proceedings relating thereto that are now pending or that shall hereafter be begun, to a final determination, at his own proper costs. Said party hereby reserves the right to settle said cause for a sum not less than three hundred thousand ($300,000) dollars, one-fourth (4) of which shall belong to and be paid to said second party upon his compliance with the terms hereof. In consideration of which said second party agrees to and with said first party that upon the final determination of said cause in the courts in which it is now pending, or in any court or courts to which it may be removed or appealed, and all proceedings relating thereto or affecting said cause, he will pay to said first party an additional sum sufficient to make a total payment hereunder of twelve and one-half (12 and 1⁄2 per cent.) per cent. of the amount of said judgment, and all moneys belonging thereto, and shall receive one-fourth (1⁄4) of all moneys collected upon said judgment and all moneys deposited in court or in any manner collected under or by virtue of said proceeding, which additional sum shall be paid within ninety (90) days after the second party shall have received notice of the final determination of all such proceedings: provided, if said second party shall not pay said additional sum within said time, or shall elect not to do so, said first party shall repay to said second party the said sum of twenty-seven thousand five hundred ($27,500) dollars, with interest thereon from this date at 8 per cent. per annum, which payment shall be made by said first party from the first proceeds received by said first party in said action or in settlement or compromise of the same or any part thereof, but not otherwise: provided, also, that in any settlement or compromise made of said cause said second party shall receive a sum of not less than seventy-five thousand ($75,000) dollars upon paying the further sum of ten thousand ($10,000) dollars. It is further agreed that the said first party reserves the control and management of said cause, subject only to the limitations herein. This contract shall extend to and bind the heirs and assigns of each party hereto. In witness whereof the parties hereto have set their hands and seals the day and date first above written.

"A. W. Rucker.
"Rich. J. Bolles."

The complaint averred, in substance, that after the execution of the aforesaid contract and the payment to the defendant, Rucker, of the sum of $27,500, mentioned therein, the said Rucker, in the suit brought by him against said Harvey Young and Jerome B. Wheeler and others, recovered a judgment against said Wheeler in the sum of $801,670; that an appeal was taken in sald suit to the supreme court of Colorado; that while it was so pending on appeal and undetermined it was compromised by said Rucker without the plaintiff's knowledge or consent; that by virtue of said compromise agreement, the said Rucker received from the said Wheeler a sum not exceeding $300,000, and that thereafter the plaintiff had duly tendered to the defendant the sum of $10,000 in addition to the sum of $27,500 first paid. In view of the premises, the plaintiff, Bolles, demanded a judgment against the defendant for the sum alleged to be due to him under the provisions of the aforesaid agreement.

The defendant demurred to the complaint on the ground that the same did not state a cause of action, but the demurrer was overruled, whereupon he filed an answer, which contained five pleas or defenses. The first defense was a denial of certain material allegations contained in the complaint. The second defense averred that both the plaintiff, Bolles, and the defendant, Rucker, were citizens and residents of the state of Colorado, and that the suit for that reason was not within the jurisdiction of the federal court. The third, fourth, and fifth pleas were as follows:

"(3) For further answer, the defendant alleges that prior to the execution of the contract set forth in the complaint herein the said Jerome B. Wheeler, named in said complaint, had commenced an action, which was then pending

in one of the courts of the state of Colorado, against the plaintiff and one J. J. Hagerman and others as defendants, in which action said Wheeler sought to recover of and from the said defendants, to wit, the plaintiff herein, said Hagerman, and others, a large sum of money, and that the plaintiff and his co-defendants aforesaid, on or about the date of the making of said contract between the plaintiff and the defendant herein, knowing and being informed of the pendency of the suit in the district court of Arapahoe county between this defendant and the said Wheeler and others mentioned and referred to in the complaint herein, for the purpose of preventing a compromise and settlement of said action between this defendant and said Wheeler, and to protract and prolong the said litigation so pending between this defendant and said Wheeler, came to this defendant, and offered and proposed as an inducement to this defendant to prosecute his said suit against said Wheeler and others to final judgment, and not to compromise or otherwise discontinue the same during the pendency of said litigation between the said Wheeler and the plaintiff, Hagerman, and others aforesaid, to aid and assist this defendant with money sufficient to enable him to further prosecute the said suit against said Wheeler; and the plaintiff and the said Hagerman agreed to further assist the defendant in the prosecution of the said suit and litigation against said Wheeler with further advances of money, and in other ways, and that they would not in any wise aid or assist said Wheeler or the opponents of this defendant in his said suit and litigation. And defendant further avers that the contract set forth in the complaint was drawn up by the plaintiff, and a portion of the money therein agreed to be paid to this defendant was furnished him by the plaintiff and said Hagerman for the purpose and with the intent on the part of the plaintiff and said Hagerman of intermeddling in and prolonging the said suit and litigation between this defendant and said Wheeler and others, and preventing an early settlement or compromise of the same; and the money so paid to the defendant by them was furnished and advanced for that purpose, and for the further purpose of compelling the said Wheeler to settle or discontinue the said action against the plaintiff, said Hagerman, and others. And defendant further avers that said money was so advanced and agreed to be advanced by them to aid and assist this defendant in the prosecution of his suit in the complaint mentioned and referred to, and that neither the said plaintiff nor the said Hagerman had any interest in or concern with the said suit or the subject-matter of the same. And defendant further says, in consideration of the said promises and agreements of the plaintiff and said Hagerman, it was agreed between them and this defendant that the defendant should and would assign to them the oneeighth part of any money judgment that might be recovered in his said action against said Wheeler and others, and of any moneys that might be collected and received upon said judgment, or any compromise or settlement of the same upon the full and faithful performance by the plaintiff and said Hagerman of their several promises and agreements aforesaid, and not otherwise; that the said agreement so drawn up by the plaintiff and signed by him and the defendant, and set forth in the complaint herein, was so drawn and executed for the purpose of expressing the said contract and agreement aforesaid, which is the true meaning, purpose, and intent of the same, and the same was so understood, regarded, and treated by the plaintiff and defendant. Defendant further says that said promises of the plaintiff and said Hagerman to advance and furnish other moneys in addition to the moneys paid by them as aforesaid, and to aid and assist defendant in the prosecution and conduct of his said suit and litigation, and their further promise and agreement not to render aid or assistance to his opponents, form the material part of the consideration for the making of said contract and agreement with the plaintiff. Defendant further alleges that after the making of said agreement, the plaintiff and said Hagerman failed and refused to pay to the defendant the moneys agreed by them to be furnished and paid, or to aid or assist him in other ways, or in any ways 'n the conduct and prosecution of his said suit and litigation, but, on the conrary, they thereafter interfered and meddled in said litigation on behalf of said Wheeler and against the defendant, and rendered aid and assistance, by advances of money and otherwise, to the said Wheeler in that behalf, and gave agreements and promises to said Wheeler of additional and further aid therein; so that the defendant was finally induced and compelled to settle and compro