19 Mich. 57 | Mich. | 1869
Wallace being general assignee of one Bobert H. Morrison, Watkins as Sheriff levied upon a portion of the assigned property under an execution against the assignor, claiming the assignment to be void as against creditors.
This is an action of trespass, brought by the assignee against the Sheriff for the seizure. Judgment was recovered against the latter in the Circuit Court, and the case comes up on writ of error and exceptions.
A preliminary question is suggested upon the record— whether the Sheriff had such process as would justify him. The execution in his hands was issued upon a judgment rendered upon bond and warrant of attorney in vacation.
The judgment was rendered in strict accordance with the statute, and the bond and warrant were both made under the existing laws authorizing such judgment. We do not perceive any reason why such a remedy by agreement is not valid. The proceedings are no more objectionable than statutory foreclosures, where a remedy by agreement in a statutory form, has always been regarded as valid. A party may undoubtedly in civil matters waive his judicial privileges, and must be bound by his agreement when made and enforced according to law. We think the judgment valid.
Had it been irregular, the execution, being in due form, would protect the Sheriff from being a trespasser.—People v. Rix. 6 Mich. R. p. 144.
The questions presented relate chiefly to the validity
It'is claimed the assignment is void upon its face, because it authorizes compromises of bad debts, and because it allows the assignee to submit to arbitration disputes concerning the title to property, and respecting debts.
The power to compromise doubtful debts is one which is useful if not necessary to enable an assignee to close up the estate. It would be absurd to require suits to be brought where there was no reasonable hope of collection. Such debts can generally be managed better by a good business man than by legal process. There is no authority for holding such a provision fraudulent.
The same reasoning applies with force to the clauses allowing arbitration. If there should be cases where the law does not authorize them, we must presume that the assignee will apply a general power, which can have a lawful operation, to lawful purposes. Nye v. Van Hasan, 6 Mich., 346. We cannot presume he will act fraudulently, and the provision being susceptible of honest application, cannot be said to have that necessary evil tendency which justifies the inference of a fraudulent intent.
Some of the assigned property is land in Indiana, and the laws of Indiana, as shown in proof, do not authorize such an assignment as was made. And it is claimed that the assignment must be treated as if made with the intent to have it operate in Indiana against the laws of that state, and as therefore fraudulent.
We can see no force in this suggestion. The fact that an instrument cannot be enforced in another state is no reason why it should not be enforced here. Even an assignment made under the direction of a Court here would not necessarily be enforced elsewhere. If -foreign insolvency and bankruptcy assignments are ever recognized it is only by comity and not by necessity. To allow the laws of
The assignment is not void for any of these causes. It can only be defeated by fraud in fact.
It is alleged as error that the Court allowed the assignor to answer what his intentions were in making the assignment. The main inquiry in the case was concerning this intention. Intention is generally proved by circumstances, because usually there is no other mode of proof. But when the only person who knows the fact is accessible as a witness, his answer must necessarily be more direct evidence than any other; and if there is any reason to suspect his candor, the jury can make all the allowances called for by his position and demeanor. The evidence was admissible.
He was also allowed to testify to the amount which he had received for certain stock sold, by referring to a letter purporting to have been written by his selling agents, but which was not proven to have been in their handwriting. But as the letter was the document which he received as containing the account of sales, there could be no better
We think, however, that in charging the jury concerning the proof of fraud, the language used had a .tendency to mislead the jury into a belief that more stringent proof was necessary than the law requires. The Judge charged them that “ fraud will not be presumed from slight circumstances, the proof* must he clear and conclusive.”
It is not to be denied that such language has been frequently used by Courts, and when used by them it expresses an idea which means no more than that the proof must be such as to create belief and not merely suspicion. But juries cannot be expected to be familiar with the technical and stock phrases of the bench and bar. And as there is a well settled popular understanding of the different degrees of proof required in civil and criminal trials as a basis of conviction, a jury instructed to act only on conclusive evidence could hardly fail to suppose they must disregard all balancing of evidence, and require a case absolutely free from any doubt. No such rigid rule prevails in any civil case. Common sense teaches every one to be cautious in arriving at conclusions which are prejudicial to character and honesty, but if the testimony produces a rational belief, a civil jury cannot be required to discard it because it is not conclusively established. We think the instruction erroneous, as calculated to mislead the jury as to the amount and quality of proof required; and that for this error, the judgment must be reversed and a new trial granted.
There are some other questions of minor importance not likely to arise again, which we do not think it necessary to discuss.