This is a writ of error to a judgment of the court of the United States, for the first circuit and district of Massachusetts, in an action of replevin claiming the restitution of twenty-three cases of silks which had been attached at the suit of the United States, against George D'Wolf. The property was claimed by the plaintiff in replevin, under a deed dated on the 19th of November 1822, executed by George D'Wolf and John Smith, in which they acknowledged themselves to be severally indebted to the said James D'Wolf, in large sums of money, and agreed, in consideration thereof, and in consideration of other advances to be made by the said James D'Wolf, to convey, and did convey, to the said James D'Wolf the ship Octavia, then lying in the port of New York nearly ready for sea, and the three brigs Quill, Arab, and Friendship, then actually at sea, their tackle, &c. and the proceeds and investments of their cargoes, &c. which said vessels and cargoes were the property of the said George D'Wolf and John Smith. To this conveyance a condition was annexed, that it should be void on the payment to James D'Wolf of the money which should be due to him; on the failure to pay which it should be lawful for the said James D'Wolf, at any time or times, to enforce the pledge by process, and arrest of the premises or any part thereof in all courts or places whatsoever, and cause the same to be sold, and the proceeds to be applied in satisfaction of the moneys which may then be due from them, or either of them. The silks were part of the return cargo of one of these vessels.
The defendant pleaded that the said silks were not the property of the plaintiff, but of George D'Wolf and Smith; and justified the taking thereof, as marshal of the district, by virtue of a writ of attachment sued out of the court of the United States for the said district, in which suit the United States obtained judgment against the said George D'Wolf.
At the trial, the plaintiff proved his deed of assignment, that the silks were part of the proceeds of the cargoes of the ship Octavia and brig Arab, that he had used all proper means to take possession of them, and that they were attached by the defendant, as marshal, by virtue of process sued out by the United States. He also proved debts against George D'Wolf and John Smith, severally, on account of his advances for them, which were intended to be secured by the deed of assignment, to a very large amount.
The defendant proved that the said silks were imported into the United States, consigned to George D'Wolf and John Smith, and that at the time of the importation of said silks, said George D'Wolf and John Smith were indebted to the United States in bonds given by them respectively for duties which were then due and unpaid, to an amount much exceeding the value of the silks replevied. The defendant also proved, that at the time the deed of assignment was executed, the ship Octavia lay at New York, with her cargo on board, nearly ready for sea; but that possession was not delivered, nor were the bills of lading indorsed or delivered to the plaintiff. The cargoes were consigned to the several masters for sales and returns.
Many other circumstances were given by the plaintiff in evidence, to show the fairness of the deed of assignment; which were met on the part of the defendant by other circumstances, on which he relied to show that in point of law it was fraudulent. These do not affect the opinions given by the circuit court, to which exceptions were taken; and therefore are not recited.
After the testimony was closed, the defendant's counsel moved the court to instruct the jury that the deed of assignment was fraudulent as to creditors, and void. This instruction the court refused to give; but left it to the jury to determine upon all the evidence of the case, whether the said deed was executed with an intent to defraud or delay the creditors of the said George D'Wolf and John Smith, and if so executed, then the same was fraudulent, and void as to such creditors.
As the whole question of fraud was submitted to the jury, it is incumbent on the plaintiff in error, if he would support this exception, to show some defect in the deed itself, which makes it absolutely void as to creditors, whatever may be the fairness of intent with which it was executed. He relies on the fact, that possession of the Octavia was not delivered as making the deed of assignment absolutely void.
This question was decided upon full consideration in the case of Conard vs. The Atlantic Insurance Company, 1 Peters, 386, and this court is well satisfied with that opinion.