[286] [287] intent was one of fact; but this court, follow- all the elements denounced in the case above In the opinion the court said: "But there are features engrafted on this mortgage which are not only to the prejudice of creditors, but which show that other considerations than the security of the mortgagees, or their accommodation even, entered into the contract. Both the possession and right of disposition remain with the mortgagors. They are to deal with the property as their own, sell it at retail, and use the money thus obtained to replenish their stock. There is no covenant to account with the mortgagees, nor any recognition that the property is sold for their benefit. Instead of the mortgage being directed solely to the bona fide security of the debts then existing, and their payment at maturity, it is based on the idea that they may be indefinitely prolonged. As long as the bank paper could be renewed, Robinson consented to be bound; and in Mrs. Sloan's case it was not expected that the debt would be paid at maturity, but that it would be renewed from time to time, as the parties might agree. It is very clear that the instrument was executed on this theory that the business could be carried on as formerly by the continued indorsement of Robinson, and that Mrs. Sloan was indifferent about prompt payment. The correctness of this theory is proved by the subsequent conduct of the parties; for the mortgagees remained in possession of the property, and bought and sold and traded in the manner of retail dry goods merchants from July 7, 1871, to August 7, 1873. It hardly need be said that a mortgage which, by its very terms, authorizes the parties to accomplish such objects is, to say the least of it, constructively fraudulent. Manifestly it was executed to enable the mortgagors to continue their business, and appear to the world as the absolute owners of the goods, and enjoy all the advantages resulting therefrom. . . . This conduct is the result of trust and confidence, which, as Lord Coke tells us, are ever found to constitute the apparel and cover of fraud. Whatever may have been the motive which actuated the parties to this instrument, it is manifest that the necessary result of what they did do was to allow the mortgagors, under cover of the mortgage, to sell the goods as their own, and appropriate the proceeds to their own purposes; and this, too, for an indefinite length of time. A mortgage which, in its very terms, contemplates such results, besides being no security to the mortgagees, operates in the most effectual manner to ward off other creditors; and where the instrument on its face shows that the legal effect of it is to delay creditors, the law imputes to it a fraudulent purpose. The views we have taken of this case harmonize with the English common-law doctrine, and are sustained by a number of American decisions." Other authorities sustain this view of the subject, and the instrument now under consideration, in the opinion of the court, contains If we examine into the acts of the parties in connection with this transfer, we shall see that they were in accordance with this purpose of hindering and delaying creditors. There was but one witness to the instrument and he was the confidential bookkeeper of the bankrupts. He states that he put his name to it as a witness on the day that it bears date, but that he did not read it, nor was he informed of its contents; and although it is said by some witness that the conveyance was delivered at or about the time it is dated, the grantees were not present when this witness put his name to it. The law of North Carolina, like that of all other States, provides for the recording of such instruments as this, and that until so recorded they are not valid as against creditors and purchasers without notice. In the present case it was kept from record from the time of its date, the 24th of April, until the 11th day of July thereafter. This was undoubtedly the act of the grantees in the deed, the parties whose obligations for the bankrupts were secured by it, and who were the trustees appointed by it for its execution. The period it was thus kept secret was as long as it could be with safety to the purpose of hindering and delaying creditors; for as soon as it was known that Calvin Chestnut was about to procure a judgment, which either by virtue of the judgment itself, or by a levy of an execution upon the goods, would become a lien, the paper was recorded for the undoubted purpose of preventing this result. The bankrupts were permitted for several months to continue in the possession and control of these goods, and to deal with them as their own; and even when the trustees did seem to consider it necessary to interpose and take the matter into their own hands, the manner in which they did it is open to animadversion. It does not appear that they went in person to the building and took possession of it or of the goods. On the contrary they made no change in its appearance, or in the manner of conducting the business. No sign was put up indicating that any change of ownership had taken place. The same books were currently kept by the same bookkeeper, and entries were made in the same manner as before. The two bankrupts were also employed by the assignees to conduct the business, at a salary of one hundred dollars per month each; and they continued it in precisely the same manner as it had been previously, with the exception of depositing the moneys arising therefrom, as they allege, in bank according to the directions of the trustees. In fact, so far as the outside public was concerned, the whole affair was conducted before the recording of this assignment, and until the appointment of the assignee in bankruptcy, in the same manner that it had always been be fore the conveyance was executed. Then it seemed to occur to the trustees that the time had come to wind up this business; and although it was not done with any extraordinary expedition, it is not necessary to hold that there was anything actually fraudulent in the manner in which it was finally accomplished. These are circumstances which, taken in con [288] [289] [225] nection with the provisions of the deed itself, show very clearly that, in the minds of the assignors and the assignees, one of the effects of this instrument, and of the operations conducted under it, was undoubtedly to hinder and delay creditors. Indeed, it is impossible to believe that this effect was not intended by all the parties to the deed. The suit in this case is not sustainable under the provision of the Bankrupt Act against a preference of creditors in fraud of the law, because the bankruptcy proceedings were not brought within the time prescribed by that Act as necessary to avoid such preference. But a right is shown to relief on the ground that the instrument was made to hinder and delay creditors. The decree of the Circuit Court is, there fore, reversed, and the case remanded to that court, with instructions to refer the case to a master, before whom the defendants, the trustees, must account for the property conveyed to them by the instrument. In this accounting all the creditors, secured and unsecured, must be brought into a concourse and held to an equal right in distribution of the funds arising from the sale of the goods and the choses in action assigned to the trustees. But in accounting with the trustees they must be credited with what they have paid to any of the creditors, so far as those creditors would be entitled on an equal and pro rata distribution among all the creditors of all the assets conveyed to them by the deed of trust. vidual names. 1. This court cannot take jurisdiction of a writ of error which describes the parties by the name of a firm, or which designates some of the parties by the expression " & Co." or the expression and others," or in any other way than by their indi2. But where the record discloses the names of the individuals who compose the firm, the writ of error can be amended in this court, under section 1005 of the Rev. Stat. section 3, Act of June 1, 1872 (chap. 255, 17 Stat. at L. 196); provided the defect has not prejudiced, and the amendment will not injure, the defendant in error. 3. Where a judgment is distinctly one against the claimants, and their sureties in a bond, jointly, for a definite sum of money, and there is nothing distributive in the judgment, all the parties against whom the judgment is entered must join in a writ of error, or else there must be a proper summons and severance, in order to allow of the prosecution of the writ by any less than the whole number of the defendants against whom the judgment is entered. 4. Where there is a substantial defect in a writ of error, which this court cannot amend, it has no jurisdiction to try the case. It will then, of its own motion, dismiss the case, without awaiting the action of a party. [No. 50.] Argued Oct. 31, 1888. Decided Nov. 19, 1888. sippi, to review a judgment against principals Mr. Justice Blatchford delivered the opin- [226] ion of the court: This is a writ of error to the District Court of the United States for the Northern District of Mississippi, brought to review a judgment recovered on the 22d of April, 1885, in the name of Trabue, Davis & Co., as plaintiffs, against Estes, Doan & Co., as claimants. The citation in the case is addressed to Trabue, Davis & Co., and states that Estes, Doan & Co. are plaintiffs in error, and Trabue, Davis & Co. are defendants in error, and refers to the judgment as one rendered against Estes, Doan & Co. The supersedeas bond refers to the judgment as one rendered in favor of Trabue, Davis & Co., plaintiffs, against Estes, Doan & Co., claimants, and to the writ of error as one obtained by Estes, Doan & Co., claimants; and it purports to be executed by Z. N. Estes and J. H. Doan, members composing the firm of Estes, Doan & Co., as principals, and by two sureties; and Trabue, Davis & Co. are named as the obligees. The original suit was an attachment suit brought in the name of Trabue, Davis & Co., against one B. F. McRae, in the Circuit Court of Tishomingo County, Mississippi, on the allegation that McRae had disposed of his property with intent to defraud his creditors. An attachment was issued and was served by the sheriff upon, among other things, certain personal property described by him in his return. After such return, a claim, by affidavit, was made to the personal property so attached, as the property of Estes, Doan & Co.; and a forthcoming bond was given, executed in the name of Estes, Doan & Co, as principals, and C. F. Robinson and John W. Dillard, as sureties, to Trabue, Davis & Co., as obligees, conditioned for the payment by Estes, Doan & Co. to Trabue, Davis & Co., of all such damages as might be awarded against Estes, Doan & Co., in case their claim should not be sustained, and for the delivery of the property to the sheriff if their claim to it should be determined against them. On the back of the bond was indorsed an affidavit made by J. H. Doan, setting forth that he and Z. N. Éstes were the members who composed the firm of Estes, Doan & Co. This bond was approved by the sheriff, and the property was returned to Estes, Doan & Co. McRae filed a plea in abatement, denying the allegation of the fraudulent assignment of his property, and then the members of the firm of Trabue, Davis & Co., giving their names as James Trabue, William A. Davis, and Richard Trabue, and stating themselves to be citizens of Kentucky, and to have been such at the time the suit was brought, and McRae to have been and to be still a citizen of Mississippi, caused the suit to be removed into the said District Court of the United States. In that court a declaration was filed, in the name of the said three members of the firm of Trabue, Davis & Co., against McRae, claiming a recovery on [227] [228] [229] the 13th of April, 1885, upon a trial by a jury, | [18: 810, 812]; Miller v. McKenzie, 77 U. S. 10 As, however, the record discloses the names of the individuals who compose both of the firms, the writ of error could be amended in this court, under section 1005 of the Revised Statutes, being section 3 of the Act of June 1, 1872 (chap.255, 17 Stat. at L.196), which provides that this court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record," "provided the defect has not prejudiced, and the amendment will not injure, the defendant in error." In Moore v. Simonds, 100 U. S. 145 [25: 590], an appeal was taken in the name of a firm, but it was taken when section 1005 was in force; and the bond showed the names of the individual members who composed the firm. This court said: "We are clear, therefore, that the defect is one that may be amended under the law as it now stands, and for that reason we will not dismiss the appeal." The judgment sets forth that the jury re- aforesaid." A bill of exceptions is found in the record, raising certain questions as to the admission of evidence, and as to the charge of the court to the jury; but, in the view we take of the case, these cannot be considered. Since the filing of the transcript of the record in this court, the death of J. H. Doan has been suggested, and an order of this court made that the case proceed in the name of Z. N. Estes, as surviving partner of the firm of Estes, Doan & Co. As before stated, the writ of error is taken out in the name of Estes, Doan & Co., as plaintiffs in error, against Trabue, Davis & Co., as defendants in error, without naming in the writ of error the individuals who compose either of the firms. It is well settled that this court cannot take jurisdiction of a writ of error which describes the parties by the name of a firm, or which designates some of the parties by the expression " & Co." or the expression" and others," or in any other way than by their individual names. Deneale v. Archer, 33 U. S. 8 Pet. 526 [8:1032]; Wilson v. Life & Fire Ins. Co. of N. Y. 37 Ú. S. 12 Pet. 140 [9: 1032]; Davenport v. Fletcher, 57 U. S. 16 How. 142 [14: 879]; Mussina v. Cavazos8, 73 U. S. 6 Wall. 355, 361, 362 But there is another difficulty in the present case, which cannot be reached by an amendment in or by this court under section 1005. The judgment is distinctly one against "the claimants, and C. F. Robinson and John W. Dillard, their sureties in their forthcoming bond," jointly, for a definite sum of money. There is nothing distributive in the judgment, so that it can be regarded as containing a separate judgment against the claimants and another separate judgment against the sureties, or as containing a judgment against the sureties payable and enforceable only on a failure to recover the amount from the claimants; and execution is awarded against all of the parties jointly. In such a case the sureties have the right to a writ of error. Ex parte Sawyer, 88 U. S. 21 Wall. 235, 240 [22: 617, 619]. It is well settled that all the parties against [230] whom a judgment of this kind is entered must join in a writ of error, if any one of them takes out such writ; or else there must be a proper summons and severance, in order to allow of the prosecution of the writ by any less than the whole number of the defendants against whom the judgment is entered. Will iams v. Bank of United States, 24 U. S. 11 Wheat. 414 [6: 508]; Owings v. Kincannon, 32 U. S. 7 Pet. 399 [8: 727]; Wilson v. Life & Fire Ins. Co. of N. Y. 37 U. S. 12 Pet. 140 [9:1032]; Todd v. Daniel, 41 U. S. 16 Pet. 521 [10: 1054]; Smyth v. Strader, 53 U. S. 12 How. 327 [13: 1008]; Davenport v. Fletcher, 57 U. S. 16 How. 142 [14: 879]; Mussina v. Cavazos, 61 U. S. 20 How. 280, 289 [15:878, 879]; Sheldon v. Clifton, 64 U. S. 23 How. 481, 484 [16:429, 430]; Masterson v. Herndon, 77 U. S. 10 Wall. 416 [19:953]; Hampton v. Rouse, 80 U. S. 13 Wall. 187 [20: 593]; Simpson v. Greeley, 87 U. S. 20 Wall. 152 [22: 338]; Feibelman v. Packard, 108 U. S. 14 [27: 634]. Where there is a substantial defect in a writ of error, which this court cannot amend, it has no jurisdiction to try the case. Wilson v. Life & Fire Ins. Co. of N. Y. 37 U. S. 12 Pet. 140 [9: 1032]. It will then, of its own motion, [383] dismiss the case, without awaiting the action For these reasons the writ of error is dis- JOHN T. STEWART, Plff. in Err., THE WYOMING CATTLE RANCHE (See S. C. Reporter's ed. 383-390.) Graham, 7 Dowl. Pr. Cas. 223; Burgess v. Langley, 5 Man. & G. 722; Prior v. Powers, 1 Keble, 811; Oren v. Warburton, 1 Bos. & P. N. R. 326; Pleasants v. Heard, 15 Ark. 403; Wilson v. Berryman, 5 Cal. 44; Turner v. Tuolumne Co. Water Co. 25 Cal. 397; Boyce v. Cal. Stage Co. Id. 474; Chandler v. Barker, 2 Harr. (Del.) 387; Roy v. Goings, 112 Ill. 656; Drummond v. Leslie, 5 Blackf. 453; Dunn v. Hall, 8 Blackf. 32; Hann v. Wilson, 28 Ind. 296; State v. Doon, 1 R. M. Charlt. 1; Heath V. Conway, 1 Bibb, 898; Dorr v. Fenno, 18 Pick. 521; St. Martin v. Desnoyer, 1 Miun. 156; Bradt v. Rommel, 26 Minn. 505; Miller v. Instructions to jury-silence, not equivalent to. Kimberlin, 23 Mo. App. 523; Sawyer v. St. Louis R. Co. 5 Mo. App. 471; McMurdock Hannibal & St. J. R. Co. 37 Mo. 240; State v. Branstetter, 65 Mo. 149; Philips v. Stewart, 69 Mo. 149; Dodge v. Carroll, 59 N. H. 237; Peo ple v. Barker, 2 Wheel. Crim. Cas. 21, 22; 1. Where, taking all the instructions together, of Dana v. Tucker, 4 Johns. 487: Mulock v. Law the court to the jury, they conform to the well set-rence, 5 City Hall Rec. 84; Smith v. Cheetham, tled law and there is no ground for supposing that 3 Cai, 61; Cline v. Broy, 1 Or. 89; Cluggage v. the jury had been misled, the judgment will not be Swan, 4 Binn. 150; White v. White, 5 Rawle, reversed by reason of the instructions. 61; Smith v. Culbertson, 9 Rich. Law, 106; Price v. McIlvain, 2 Treadw. (S. C.) 503; Reaves v. Moody, 15 Rich. Law, 312; Handley v. Leigh, 8 Tex. 129; Warren v. State, 9 Tex. App. 619, at 632; Cheney v. Holgate, Brayton, 171; Holmead v. Corcoran, 2 Cranch, C. C. 119; Chesapeake & O. R. Co. v. Patton, 9 W. Va. 648. false representation-action for deceit-in- 2. Silence as to a material fact is not necessarily, as matter of law, equivalent to a false representa tion. 3. But if, with intent to deceive, either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose, this is evidence of and equivalent to a false repre sentation. 4. An instruction given by the judge to a jury, in response to a question asked by them upon coming into court after they had retired to consider their verdict, if not excepted to, is no ground of error: It is no excuse for the want of an exception that neither of the counsel were present when the in struction was given. 5. Affidavits filed in support of a motion for a new trial are no part of the record on error, unless made so by bill of exception. 6. The absence of counsel while the court is in diction to a court of error to decide questions not [No. 52.] It was the duty of the attorneys for the parties to remain in attendance upon the court during such time as the court was in session, until the jury returned their verdict, and it was not obligatory upon the court to send for them if they were absent. Chapman v. Chicago & N. W. R. Co. 26 Wis. 295. The instructions of the court upon matters of fact will not be reviewed by this court. Carver v. Jackson, 29 U. S. 4 Pet. 1 (7: 761); Magniac v. Thompson, 32 U. S. 7 Pet. 348 (8: 709). Honesty of purpose prompts frankness of Argued Oct. 31 and Nov. 1, 1888. Decided Nov. statement. Concealment is indicative of fraud. 19, 1888. IN ERROR to the Circuit Court of the United The facts appear in the opinion. Mr. Wm. H. Swift, for defendant in error: Balt. & P. R. Co. v. Sixth Presby. Ch. Trus tees, 91 U. S. 127 (23: 260); England v. Gebhardt, 112 U. S. 502 (28: 811); Kearney v. Denn, 82 U. S. 15 Wall. 51 (21:41); Craig v. Smith, 100 U. S. 226 (25: 577); Thomson v. Wooster, 114 U. S. 104 (29: 106). Affidavits of jurors cannot be used to impeach their verdict. Vaise v. Delaval, 1 Term Rep. 11; Harvey . Hewitt, 8 Dowl. Pr. Cas. 598; Straker v. Cosby v. Buchanan, 90 U. S. 23 Wall. 420 (23: 138); Matthews v. Bliss, 22 Pick. 48. Circumstantial evidence of fraud produces direct testimony. Kempner v. Churchill, 75 U. S. 8 Wall. 362 (19: 461). The use of any device by the vendor to induce the buyer to omit inquiry or examination into the defects of the thing sold, is as much a fraud as an active concealment by the vendor himself. 1 Benj. Sales, 560, 603; Bigelow, Fraud, 469. A statement recklessly made, without knowledge of its truth, is a false statement knowingly made. Cooper v. Schlesinger, 111 U. S. 148 (28: 383); Fisher v. Mellen, 103 Mass. 503; Beebe v. Knapp, 28 Mich. 53. A positive statement implies knowledge, and if the party who makes it has no knowledge upon the subject he has told scienter what is untrue. Bigelow, Fraud, 513; Simar v. Canaday, 53 N. Y. 298. This court can adjudge damages under sec tion 1010, Rev. Stat. and Rule 23, in all cases Amory v. Amory, 91 U. S. 356 (23:436). Mr. Justice Gray delivered the opinion of the court: The original action was brought by the Wyoming Cattle Ranche Company, a British corporation, having its place of business in Edinburgh in Scotland, against John T. Stewart, a citizen of Iowa. The petition contained two counts. on the representations, he made a favorable [385] The jury returned a general verdict for the at the argument, were to the following instruc- No exception was taken to the judge's instructions to the jury upon the second count. The first count alleged that in July, 1882, The only exceptions, contained in the bill of the defendant, owning a herd of cattle in Wy-exceptions allowed by the judge, and relied on oming Territory, and horses going with that herd, and all branded with the same brand, and also eighty short-horn bulls, and seven hundred head of mixed yearlings, offered to sell the "14. I am asked by the plaintiff to give a same with other personal property for the sum number of instructions, a portion of which I of $400,000; and at the same time represented to give, and a portion of which I must necessarily the plaintiff and its agent, that there had al-decline to give. My attention is called to one [384] ready been branded 2,500 calves as the increase matter, however, and as I cannot give the inof the herd for the current season, and that struction as it is asked for, and as the matter the whole branding of calves and increase of it contains is, as I think, of the first importance. the herd for that season would amount to I will state my own views upon that particular 4,000, and that, exclusive of the branding for point. that year the herd consisted of 15,000 head of cattle, and that there were 150 horses running with it and branded with the same brand; that had the representation that 2,800 calves had been branded been true, it was reasonable from that fact to estimate that the whole branding for that year would be 4,000 head, and that the whole herd exclusive of the increase for that year was 15,000 head; that the defendant, when he made these representations, knew that they were false and fraudulent, and made them for the purpose of deceiving the plaintiff "In reference to that point, I feel it my and its agent, and of inducing the plaintiff to duty to say this to the jury, that if the testipurchase the herd; and that the plaintiff, rely-mony satisfies you that after all the docuing upon the representations, and believing them to be true, purchased the herd and paid the price. The second count alleged that the defendant bad failed to deliver the bulls and yearlings as agreed. At the trial the following facts were proved: The defendant, being the owner of a ranche with such a herd of cattle, gave in writing to one Tait the option to purchase it and them at $400,000, and wrote a letter to Tait describing all the property, and gave him a power of attorney to sell it. He also wrote a letter describing the property to one Majors, a partner of Tait. A provisional agreement for the sale of the property, referring to a prospectus signed at the same time, was made by Tait with the plaintiff in Scotland, a condition of which was that a person to be appointed by the plaintiff should make a favorable report. One Clay was accordingly appointed, and went out to Wyoming and visited the ranche; certain books and schedules made by one Street, the superintendent of the ranche, were laid before him; and he and the defendant rode over the ranche together for several days. Clay testified that, in the course of his interviews with the defendant, the latter made to him the false representations alleged in the petition, and requested him to rely on these representations and not to make inquiries from the foreman and other persons; and that, relying "I am asked to say to the jury, if they believe from the evidence that, while Clay was making the inspection, Stewart objected to Clay making inquiries, about the number of calves branded, of the foreman and other men, and thereby prevented Clay from prosecuting inquiries which might have led to information that less than 2,000 calves had been branded, the jury are instructed that such acts on the part of Stewart amount in law to misrepresentations. ments in question that have been introduced in [386] |