Bradley v. Geiselman.

to the plaintiff, in determining the credit you give to his evidence.

3rd. If the jury shall believe, from the evidence, that the plaintiff acquired a good and valid title to the property in dispute, by purchase from Layton and Elisha W. King, and that the same was taken by the defendant as charged, then the plaintiff is entitled to recover the full value of the property, at the time the defendant levied thereon, with interest from the date of said levy.

4th. If the jury believe, from the evidence, that William J. King was the agent of Elisha W. King, to conduct for said Elisha W. King the saloon business in the city of Chicago, and that the said William J. King, as such agent, formed a copartnership between said Elisha W. King and Henry A. Layton, under the name and style of Henry A. Layton & Co., and as such were openly and publicly carrying on said business, then the law is, that the said firm had a lawful right to sell and dispose of their partnership property, and if the jury are satisfied, from the evidence, that Geiselman, the plaintiff, purchased for good consideration the partnership property of said firm of Henry A. Layton & Co., and took possession of the same, he 'thereby acquired a good title, and was the owner of the same, and the jury should find for him, and assess his damages.

That fraud is never to be presumed against a party, but must be proven by the person alleging the same, or by some sufficient proof in the case.

The defendant asked the court to give the jury the following instructions:

1st. If the jury shall believe, from the evidence, that after the delivery of the executions to the sheriff on the 29th day of October, 1853, William J. King had or owned any interest in the property levied on by the sheriff, either as a partner with Layton or in any other way, then the interest of said King was subject to the lien of the executions from the date of their delivery to the sheriff, and the defendant had a right to take possession of the property, and to sell the interest of said King in the same, under said executions, and no sale by King to the plaintiff could defeat the right of the sheriff to levy and sell, and the plaintiff cannot recover for said property.

2nd. That the question before the jury in this case is the ownership of the property at the time the executions were placed in the hands of the sheriff of Cook county, and if William J. King owned the property levied on, or had an interest therein as a partner, at the time of the delivery of the execution to the sheriff, such interest was subject to the lien of said

Bradley v. Geiselman.

executions, and to a sale under the same, and the plaintiff cannot recover.

3rd. If the jury shall believe, from the evidence, that Elisha W. King was not a partner in the firm of H. A. Layton & Co., at the formation thereof, and that the capital stock of said firm was paid in by William J. King, or by him and Layton, and the purchases of goods made by William J. King in his own name, or in the name of H. A. Layton & Co., or with his own, or with his and Layton's money, or upon his or their credit, then the interest of said William J. King in said property could not have become vested in Elisha W. King, if any such man ever existed, except by the voluntary conveyance by William J. King to him, or by the operation of law, and no power of attorney executed by Elisha W. King after the investment of such capital stock, or the purchase of the goods by William J. King, or by him and Layton, could have affected in any manner the interest of William J. King previously acquired in the property.

4th. If the jury shall believe, from the evidence, that Layton and William J. King entered into a partnership and purchased property and did business together as partners, in the month of September, 1853, and continued in business as such partners up to the 13th day of October, 1853, then the interest of said partners in said property could not be affected or altered by any power of attorney given by Elisha W. King to William J. King, on the said 13th day of October, 1853.

5th. If the jury shall believe, from the evidence, that the only authority William J. King had, to act for Elisha W. King, was in the event of the said Elisha W. King's entering and engaging in the business of keeping an eating and drinking saloon, in Chicago, subsequent to the 13th day of October, 1853, and that before the said 13th day of October, H. A. Layton and W. J. King had established and were keeping an eating and drinking saloon in Chicago, such power of attorney did not give any authority to William J. King to act for Elisha W. King, in regard to the business of the saloon owned and kept by H. A. Layton and William J. King, previous to that date. Which were severally given by the court.

WILLIAMS, WOODBRIDGE & GRANT, for Appellant.

T. L. DICKEY, for Appellee.

WALKER, J. It is insisted that this judgment should be reversed, because the finding of the jury is manifestly against

Bradley v. Geiselman.

the weight of evidence. While the evidence is perhaps, not of that positive and clear character, which would relieve the case of doubt, and entirely satisfy us of the correctness of the conclusions at which the jury have arrived, there is not such a want of evidence to support the verdict, as to render it manifest, that it is wrong. Defendant in error was found in the possession of the goods when the levy was made, and that was prima facie evidence of ownership. He purchased of Layton and Elisha King, as appears by the bill of sale, and this should have been rebutted by the plaintiff in error, to entitle him to defeat a recovery. The only evidence tending to do so, was that of White, and the instruction of the court, left it to the jury to determine, whether he had testified falsely to any material fact in the case, and if they so found, directed them that they would be at liberty to disregard his entire evidence. And that in determining what weight his evidence was entitled to, they might take into consideration his acts, in effecting the sale of this property to defendant in error. These instructions fairly presented the law, and the jury were unquestionably the judges of his credibility, and if they have found him unworthy of belief, it was clearly within their province, and we have no right to give to his evidence more weight than they have done. And if this evidence was not believed by them, to be worthy of credit, they could not have found otherwise than they did. Leave his evidence out of consideration, and there was an abundance of testimony, to warrant their finding that the property belonged to defendant in error. This seems to have been the result on the trial of this case before two different juries, and we are unable to say that it would probably be changed by submitting it to a third.

The jury by their verdict seem to have given the plaintiff below the invoice price of the goods, with interest. But there was two hundred dollars of that sum, which he reserved to meet the increased rent on the house, which does not appear to have been paid by him, and should not have been allowed. But this was corrected, by the remittiter of that sum by plaintiff below, before judgment was rendered. And if interest was calculated upon the sum of $1,800, which he paid, from the time of the seizure of the goods until the trial, it will be found to exceed the amount of the judgment. There is no objection to allowing interest on the value of the goods from the time they were taken from his possession. And in the conflict of the evidence as to their value, it was for the jury to determine it, and having done so it should not be disturbed.

The instructions asked and given, for each party, presented

McNall v. Vehon.

the law plainly, and the finding of the jury is not in conflict with them, and is supported by the evidence in the case. The judgment of the court below is affirmed.

Judgment affirmed.

JOHN A. MCNALL, Appellant, v. ABRAHAM VEHON,

Appellee.

APPEAL FROM COOK.

In an action of trespass, a plea which alleges that the defendant, as agent of the plaintiffs in execution, directed the marshal to levy on goods in the hands of another than the defendant, because they had been fraudulently sold to him by the defendant, is good, and not obnoxious to a demurrer.

THIS was an action of trespass brought to the Cook county Circuit Court, by said Abraham Vehon against the above named John A. McNall.

The declaration contains three counts.

First count for breaking and entering the plaintiff's messuage and house on the 10th day of September, 1857, and taking and carrying away certain goods and chattels which are therein described, and consist of a stock of cabinet ware.

The second and third counts of said declaration were as follows, viz.:

And also for that the said defendant on the day and year aforesaid, with force and arms, to wit, at the county aforesaid, seized, took and carried away, certain goods and chattels, to wit, one wagon, the property of the said plaintiff, of great value, to wit, of the value of five hundred dollars, then found and being in the possession of the said plaintiff, and converted and disposed of the same to his own use, etc.

And also for that the said defendant, on the day and year aforesaid, with force and arms, etc., to wit, at the county aforesaid, seized, took and carried away divers goods and chattels of the said plaintiff, of the like number, quantity, quality, description and value, as the said goods and chattels in the first count of the said declaration mentioned, then and there being found and being, and converted and disposed of the same to his own use, and other wrongs to the said plaintiff then and there did, against the peace and to the damage of the said plaintiff, of three thousand dollars, etc.

McNall v. Vehon.

To the said counts last aforesaid, the defendant pleaded not guilty, and the special plea, which is set out in the opinion of the court.

To this plea the plaintiff demurred, and for cause of demurrer alleged that said plea amounted to the general issue.

The court sustained the said demurrer, and defendant elected to stand by his plea.

Judgment was rendered for plaintiff against defendant, for twelve hundred and eighteen dollars and thirty-five cents, and defendant appealed to this court.

The decision of the Circuit Court in sustaining the demurrer and in giving the judgment, are assigned for error.

SCATES, MCALLISTER & JEWETT, for Appellant.

GOOKINS, THOMAS & ROBERTS, for Appellee.

CATON, C. J. To a declaration in trespass, de bonis asportatis, the defendant filed a special plea, as follows:

"And for a further plea in this behalf, as to the second and third counts in said declaration, the said defendant says actio non, because he says that before the time of the committing of the supposed trespasses in the said declaration mentioned, to wit, in the July term, in the year of our Lord one thousand eight hundred and fifty-seven, in the Circuit Court of the United States of America, in and for the Northern District of Illinois, before the judges thereof, in the city of Chicago, in said district, one Michael Gaffney and Patrick Gaffney, by the consideration and judgment of the said court, recovered against one Wolf Vehon the sum of thirteen hundred and forty-two dollars and fifty-five cents, which in and by the said court were then and there adjudged to the said Michael and Patrick Gaffney, for their damages which they had sustained by reason of the non-performance by the said Wolf Vehon of certain promises and undertakings then lately made by the said Wolf Vehon to the said Michael and Patrick Gaffney, besides the sum of thirty-three dollars and forty-five cents, for their costs and charges in the said suit, whereof the said defendant in the said suit was convicted, as by the record and proceedings thereof, remaining in the said court before the judges thereof, at Chicago aforesaid, more fully

appears.

"And the said defendant further says, that the said judgment being in full force, and the said damages remaining unpaid and unsatisfied, the said Michael and Patrick Gaffney, on, to wit, the 9th day of September, A. D. 1857, at Chicago, sued out and prosecuted out of said Circuit Court of the United States of