10 Wis. 91 | Wis. | 1859
By the Court,
This is an appeal from an order refusing a new trial.. It appears from the case that the motion was made on the minutes of the judge, “ upon the ground that the verdibt was contrary to law and evidence.” This does not properly bring up for review any error of the judge in refusing instructions asked. But as his refusal was urged as a ground for reversal by the appellant’s counsel, we will say that we think the instruction, in the form in which it was asked, was properly refused. It was a question of fraud in the sale from Campbell to the plaintiff, Campbell having remained in the actual possession of the goods. The last part of the instruction is, that if the jury should find the sale “to have been made in good faith, and to pay a bona fide debt, the question of the possession of the goods did not enter into the case at all.” It is very evident that the question of pos
As to the question whether the verdict was against law and evidence, we think it very clear that the court below ought not to have disturbed the verdict upon the point of fraud in the sale; and still clearer, that this court ought not to reverse the order upon that ground. The only point upon which there is any room for doubt is, whether the verdict should be set aside because the evidence required it to be for the plaintiff to the extent of the goods purchased by him after the sale from Campbell, which were seized and sold on the attachment. The evidence upon this point is, that the plaintiff purchased about $175 worth of such goods, and Campbell thought about $75 worth remained in the store at the time of the seizure. But he also testifies that he was there in possession as the plaintiff’s clerk, and that Chapman requested him to point out the goods so subsequently purchased by the plaintiff, and that he did not do it. Upon these facts, we think the case as to these $75 worth, comes within the rule that where one suffers his goods to be so mingled with those of another, that an officer having a writ against those of the other, cannot distinguish them, he cannot maintain an action against the officer who has seized them, until notice and a demand and refusal. Bond vs. Ward, 7 Mass, 127; Sawyer
In the case last cited, the court, while recognizing the rule, thought the facts were not such as to justify its application, and suggest that it should be applied with care. This is perhaps true, but even with this caution in view, we think this case comes fairly within it. In the first place, the party attaching demanded of the plaintiff’s agent that he should designate these goods, which he neglected to do. And, furthermore, the jury found that the sale from Campbell to the plaintiff was fraudulent, which brings it within the remark of the court in Shumway et al. vs. Rutter, as to a fraudulent collusion between the owner of such goods and the debtor, for the purpose of preventing an attachment.
The order appealed from is affirmed, with costs.