8 A. 713 | R.I. | 1887
This is a petition by the defendant for a new trial on account of erroneous instructions. The petition is imperfectly drawn, since it contains no statement of the evidence, or of the purport of the evidence, upon the points under question, but simply reports a part of the charge of the court, and the requests to charge, with exceptions to said parts of the charge and to refusals to charge as requested. Of course we do not mean that the petitioner ought to have reported the testimony in full, for such a report might unnecessarily cumber the files of the court, and might be censurable for another reason, namely, that it might oblige the court to go through a great heap of testimony, much of it irrelevant, to find and sort out that which is pertinent. This is a labor which properly belongs to the petitioner's counsel. A petition like this ought to state the testimony or its purport with such fulness as will show the nature of the case, and bring out clearly the points on which the rulings were given or refused, so that the court can see whether any error was committed which calls for correction. Fortunately for the defendant, this is a petition for the new trial of an action originally tried in this court, and in such a case the court has a wider discretion than in a case which comes before it by bill of exceptions. Fortunately, too, it is possible to make out from the part of the charge before us, though not so perfectly as we could wish, the nature of the evidence on which the instructions were given and refused.
The plaintiff, as assignee of the defendant under an assignment for the benefit of creditors, sues the defendant in trover for the conversion of certain chattels claimed under the assignment, among them a pair of diamond ear-rings. The defense is that the ear-rings are the separate property of the defendant's wife, and in support of this defense it is assumed, if not stated in the charge, that testimony was submitted that they came to her in manner following, to wit, that she lent to her husband from time to time divers sums of money, which were her separate property, for payment of household expenses, or laid out her money for *486 such expenses, upon his promise that he would, when he was able, bring her in repayment some diamonds, she being very desirous of some, and that the ear-rings, were bought by the defendant and delivered to her in fulfilment of this promise, for the purpose of repaying her loans. Upon this testimony the court charged the jury that the defendant was incapable of contracting with his wife or of transferring title to her, and consequently that the ear-rings remained his property, notwithstanding their delivery, and as such passed under the assignment so that the plaintiff, as assignee, was entitled to demand and receive them. To this ruling the defendant excepted.
The question is whether, if a married woman has or acquires money which is her own, and lends it to her husband upon his promise to repay it in diamonds or any other chattel, and he does so repay it by direct delivery, she gets any title which will avail against his assignee under a subsequent assignment for the benefit of his creditors, good faith in the transaction being, of course, assumed. In Steadman Co. v. Wilbur et ux.
In Savage v. O'Neil,
According to these cases, taking the view most favorable for the plaintiff, the defendant's wife became at least the equitable owner of the ear-rings by the delivery of them to her, if they were delivered as payment in good faith for money lent, a naked legal title only remaining in the defendant. Now suppose that this naked legal title passed to the plaintiff, how does it follow that he has a right to demand and receive the ear-rings from the defendant who has no possession, and who, having parted with whatever title he had, has no longer any right to dominion over *488 them? We think that under the circumstances there is no presumption that the possession of the wife is the possession of the husband, and that something more than a demand and refusal is necessary to prove conversion. It is well settled, however, that property held in trust by the assignor will not pass under his general assignment for the benefit of creditors, without special words to pass it, since if it were to pass, the trust would still attach, so that it could not be rightfully used for the creditors, and the law will not presume that the trustee intended a breach of trust. 1 Perry on Trusts, §§ 336, 345. For the same reason, when equity makes the husband trustee for his wife's property which he has transferred to her, the assignment should be construed not to pass it, unless the trust is a fraud upon the creditors.
The second exception is, because the court refused to instruct the jury that if the ear-rings were on the person of the defendant's wife at the time he refused to deliver them to the plaintiff on demand, trover could not lie for the refusal, but did instruct the jury that to excuse the defendant there should be at least some evidence of attempt on his part to get the ear-rings, some intimation that he was unable to deliver them, or something to satisfy the jury that they were so out of his control that he could not comply with the demand. Doubtless, if the ear-rings belonged to the defendant absolutely when he made the assignment, the presumption was that his wife's possession was his possession so long as they lived together, and in that case it would have been the duty of the jury to find him guilty if he refused to deliver the ear-rings on demand, unless he adduced evidence to show that they were retained by the wife without his concurrence. The instruction, however, was broadly given so that it would apply not only to such a case, but to the case which we have been considering, and, as applied to the case which we have been considering, was, in the view which we have taken, erroneous.
Petition granted.