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discharge of the debtor. No state insolvent law, as has been repeatedly decided, can discharge or release the debtor from his obligation to pay, under that contract, where the creditor is a citizen of another state, because the law cannot operate upon a citizen not within its jurisdiction. The theory of that is that the judgment of a court discharging a debtor from his obligations is, as to the creditor residing in another state, an ex parte judgment; but if he comes within the state and submits himself to the jurisdiction of the court, it has never been held that the contract may not be discharged. Now, in the case of this statute, the law does not authorize the discharge of the debtor. It requires the plaintiff, as a condition of participation in the assets of the insolvent debtor, that he shall release the personal obligation of the debtor, otherwise he cannot participate in the assets. But there is no attempt by the decree, or by the statute, absolutely to release the creditor's claim, or to discharge the debtor, without his consent. That is the extent of the decision in the case of Sturges v. Crowninshield, 4 Wheat. 122, as to the inefficacy of a state statute and of a state judgment on the contract of a party not within the jurisdiction of the courts of the state. But the property of this insolvent debtor is within the state. The state has a right to pass laws concerning its liability for the payment of his debts, provided they do not impair the obligation of the contract. As I said before, the

statute did not impair the obligation of the contract, if the law is in existence when the contract is made. In the present case, the law having been enacted before the contract was entered into, and therefore being part of the contract, and not being subject to the objection that it impaired its obligation, the property of the debtor can be distributed according to the laws provided by the state legislature, in the absence of a federal national bankruptcy act. This is no new doctrine, although it may seem, in some instances, to be kind of a hardship; yet I think it is doubtful whether there is any hardship in requiring a man who issues an attachment and seizes property to divide it among all the creditors. Certainly, in some of the states in which I hold courts, there is a provision that, whenever a creditor issues an attachment, and seizes the property of the debtor, this property is held subject to the claims of all the creditors that come in and prove their claims under that attachment process.

It is a well-recognized principle, among other things, that a state, if it does not impair the obligation of a contract, may provide for the distribution of the property of a debtor within the limits of the state. It is a very common thing in a good many of the states, and it is according to the common law, apart from any statute, in the administration of a dead man's estate, that all the creditors of that man living within the state should be paid before a dollar of this money be sent to a foreign administration. That is the principle so far as an insolvent corporation in one state is being pursued with regard to its assets in another state. We have been troubled in the states of my

circuit with a number of insurance companies in Chicago who were broken up by the Chicago fire. In one of the cases a receiver was appointed, and he was sent all over this country to collect obligations of men who had subscribed for stock, and become members of a mutual insurance company, or something of that kind, and were therefore under obligations to this insolvent company. There was great trouble about the extent of the power of a receiver appointed in Chicago exercising its functions in other states; and I have had several of such cases before me. But perhaps the most pertinent case was decided by Judge SHIRAS, of the Northern district of Iowa, that although we might permit a receiver appointed in Chicago for one of these insolvent insurance companies to pursue and collect debts in Iowa by virtue of his appointment in his state, it was clear doctrine that he could not withdraw debts due to that institution in the state of Iowa from the claims of the creditors of that institution in the state of Iowa. It is the law, undoubtedly, in almost every other state in the Union, that in case of an insolvent creditor, whether a corporation or an individual, it seeks to secure its own creditors before it permits funds to be taken to pay their foreign creditors. This principle is in analogy to that asserted here. It is not that this statute intends to defeat any of the creditors, but that it exercises the same power in determining where the assets of a debtor or of a corporation shall go, how they shall be distributed. It is the same principle that authorizes a man to make a preferential assignment; and in the absence of any statute a man may give everything to one creditor, and leave the others out. On the other hand, a state may provide and many states have enacted statutes that abolish the principle of the common law, and declare that he shall make no general assignment, except for the benefit of all his creditors. The statutes of Minnesota have adopted the latter principle, with the exception that it shall go to all those creditors who are willing to release the debtor. Of the validity of this statute both Judge NELSON and myself are perfectly satisfied.

A question was discussed, which is not before us, but about which I will express no opinion, which was decided by the supreme court of this state, that however fraudulent the purposes of the assignor may have been, or however he may have designed to conceal his property, no attempt at impeachment of the assignment can be made, because whether it is a good or bad assignment, it puts the matter into the hands of the court for administration, and when it gets into court it will administer the property as it ought to, notwithstanding any fraud or concealment that there might have been in the instrument of assignment. On that subject I desire to express no opinion, because it is not in this case. There is an allegation in the bill of some defect in that respect, but that is denied, and there is no proof properly before us that it was not a fair and honest assignment.

The bill, therefore, to set aside the assignment is dismissed.

There is another case that was submitted at the same time, and I think on a little different principle, where under a writ of attachment the assignee was served with garnishee process, and required to answer. He moves to dismiss the case because of this assignment. I do not know that it is very material whether that question should be decided on the motion to dismiss, or whether he should be required to answer, setting up the assignment. I am inclined to think that the better course would be, when he comes into court to make this answer, to set up the assignment as a discharge, and if there is any defect in the assignment, set up what is called a disclosure: it can be there contested.

There is another question that comes up by the case before us: whether the circuit court of the United States should discharge this attachment, or whether it should go on and render a judgment. There is no question but that it has power to render a judgment, because the statute does not discharge a debt unless the party discharges it himself by means of releasing the debtor. As long as the plaintiff in the case chooses to stay out, and say, "I will not release," he has a right to take a judgment which may at some time be effectual against the defendant.

There may be another question in case no creditor, or only two or three of them, release under the assignment, and a fund is left in the hands of the assignee. The supreme court of this state have held that such a fund may be arrested when proper proceedings are had before it goes to the debtor. I don't know exactly what order should be appropriately made to keep this plaintiff in a condition to seize that fund. Certainly, he has a right to go as far as a judgment; but whether that court can make any other order, conditioned upon which it turns over the property to the assignee, or not, I am not prepared to say. That is a matter for future consideration.

The bill in this case is dismissed, and the motion to discharge the garnishee in the other case is overruled.

1

BREWER V. JACOBS and another.

(Circ at Court, W. D. Tennessee. March 15, 1884.)

1. MALICIOUS PROSECUTION-PROBABLE CAUSE-MALICE-ADVICE OF COUNSEL. In suits for malicious prosecution the advice of counsel is referable rather to the issue of malice than that of want of probable cause. If the jury can see, from all the facts, that the suit was malicious, notwithstanding the advice of counsel, that fact affords no protection to the plaintiff in attachment, and if the court can see that, notwithstanding the advice, it was unreasonable to believe that a ground of attachment existed, that fact of itself does not constitute probable cause.

2. SAME SUBJECT-MALICE Defined.

Where the action is for the malicious prosecution of an attachment suit without probable cause, malice does not necessarily mean alone that state of

mind which must proceed from a spiteful, malignant, or revengeful disposition, but includes as well that which proceeds from an ill-regulated mind, not sufficiently cautious, and recklessly bent on the attainment of some desired end, although it may inflict wanton injury upon another.

3. SAME SUBJECT-DAMAGES.

Where an attachment is levied upon a growing crop of cotton, whereby the tenants and laborers of the plaintiff were so demoralized that they abandoned their crops, from distrust of his ability to carry out his contracts with them for supplies, and the crops were thereby injured, the jury should find their verdict for the actual damages to the crop from this cause, but are not confined to this element, and may assess the damages so as to compensate the plaintiff for the injury; but in no case should this power of the jury operate to make the verdict excessive or oppressive.

4. SAME SUBJect—Effect of the JudgmENT IN ATTACHMENT EVIDENCE.

Whether the judgment in the attachment suit, in favor of the defendant to that suit, is evidence tending to show want of probable cause, in an action for malicious prosecution, not decided; but it is the only competent proof of the fact that the attachment was ended in favor of the plaintiff in the suit for malicious prosecution, and in this case was confined to that use.

5. NEW TRIAL-OBJECTIONS TO JUROR AFTER VERDICT -NONAGE - NOT FREEHOLDER OR HOUSEHOLDER-SUBSTITUTED JUROR-TENNESSEE PRACTICE.

The objection that one of the jury was not of lawful age, and was not a freeholder or householder, comes too late after verdict, in Tennessee practice, which the federal court follows, unless something more is shown vitiating the verdict than that the juror was so disqualified. And if one appear who is not summoned to serve as a juror, in place of one drawn from the box, it is doubtful if the objection be good after verdict.

6. SAME SUBJECT-FEDERAL PRACTICE-WAIVER OF OBJECTIONS.

The practice of the federal court is to examine each juror as he is called, touching his statutory qualifications, upon his oath, and if he answers satisfactorily, to accept him for the term. But in effect the jury is tendered to the parties in each case as it is successively called for trial, and they must then challenge for cause that a juror is too young, or otherwise similarly disquali fied, or the objection will not be entertained after verdict, although the defect was wholly unknown to the parties at the time the jury was sworn.

7. NEW TRIAL-AMENDMENT OF DECLARATION AFTER Argument Begun.

Where the proof had been closed and the argument was in progress, the court allowed the declaration to be amended so as to enlarge the averments in relation to the damages sustained by the plaintiff, and for this error a new trial was granted.

Motion for New Trial. Action for malicious prosecution of an attachment suit.

The plaintiff, in the year 1880 and before, was carrying on a cotton plantation in Arkansas, on the Mississippi river, below Memphis, Tennessee. As usual in that business, he had an arrangement with Richardson & May, of New Orleans, to furnish him money and supplies for the plantation, securing them by a mortgage on his interest in the crops, stock, farming implements, etc. A part of the plantation-about 90 acres-was known as the "Malone Place;" there being 600 acres in cultivation in the whole farm. With the consent of Richardson & May, the plaintiff made an arrangement with the defendants for supplies to be furnished at Memphis, on the security of the crops on the Malone place, and when the account was settled there was a balance due the defendants of about $400.

In the following year, 1881, the plaintiff made another arrange

ment with Richardson & May for advances and supplies for that year, executing a mortgage as before. This mortgage was sent by Richardson & May to Brewer, to be by him executed and recorded in the county where the land was situated. He did not file it for record immediately, nor until sometime in May or June, when he sent it to the clerk of the county to be recorded, either unsigned or not properly acknowledged, and the clerk did not record it. During the spring the plaintiff desired to make an arrangement with defendants similar to the one he had made before, and, according to defendants' contention, promised to make to them a mortgage on the Malone place, which he told them was not included in the Richardson & May mortgage of that year, and to have the tenants of that place join in the mortgage, as he was to get the supplies for them. According to the plaintiff's contention, he only promised, with Richardson & May's consent, to ship to defendants the cotton grown on the Malone place. The defendants refused, as they contend, to advance on any other terms than security for the old balance as well as new advances, but, under pressure and a promise to send up the mortgage, advanced $75, and agreed to advance $125 additional when the mortgage was made.

The plaintiff drew some small orders, which were refused payment by defendants. The parties became involved in an acrimonious controversy as to the terms of the agreement, the details of which it is not necessary to report, except that the plaintiff tendered a check on Richardson & May for $75, for the money paid him, and offered to abandon the agreement, which was refused for some reason, and afterwards offered, as he contends, a mortgage on cotton-seed, if not included in Richardson & May's mortgage, but ultimately signed a mortgage drawn up by defendants before a notary, which they did not take because of some complaint of a want of Richardson & May's consent.

These negotiations for settlement and compromise, about which there was great conflict in the proof, as well as about the original agreement, all failed. The Richardson & May unexecuted mortgage fell into the hands of defendants, and observing that the Malone place was included in it, the defendants, as they contend, conceived this to be a fraud upon them, and applied to their lawyer, stating the facts and showing the unexecuted mortgage. There was a contention in the proof as to whether all the material facts were stated, but the lawyer advised an attachment. The defendants made the necessary affidavits under the attachment laws of Arkansas that the plaintiff was about to fraudulently convey his property, and on July 16, 1881, the attachment was levied on the growing crops of the plaintiff, cultivated by day labor, on his horses and mules and ginstands, and by garnishment on the shares of crops due the plaintiff from the croppers on share. The horses and mules were left with the plaintiff by the sheriff, and an agent was appointed to watch the

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