MAYBERRY V. THOMPSON, 46 U. S. 121 (1847)

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U.S. Supreme Court

Mayberry v. Thompson, 46 U.S. 5 How. 121 121 (1847)

Mayberry v. Thompson

46 U.S. (5 How.) 121


Under the acts of 1839, chap. 20, 5 Stat. 315, and 1840, chap. 43, 5 Stat. 392, where a case was carried from the District Court for the Middle District of Alabama to the Circuit Court for the Southern District of Alabama, and the circuit court reversed the judgment of the district court, it was not a proper mode of proceeding to bring the case to this Court upon such reversal.

The judgment of the district court having been reversed, the plaintiff should have taken the necessary steps to bring his case to a final decision in the circuit court, in the same manner as if the suit had been originally brought there. This Court could then have reexamined the judgment of the circuit court, if a writ of error were sued out.

It was originally brought by Mayberry in the District Court of the United States for the Middle district of Alabama. Mayberry was a citizen of Mississippi.

The action was brought at the May term, 1841, and was an action of trespass to recover damages from Thompson, for forcibly taking, seizing, and carrying away certain goods, wares, and merchandise of the plaintiff, at Warsaw, in Sumter County, Alabama.

At the November term, 1842, the cause came on for trial, when the jury found a verdict for the plaintiff, and assessed his damages at $3,709.94. On the trial, the defendant's counsel filed the following bill of exceptions.

Be it remembered, that, in the trial of this cause, the plaintiff in the first instance introduced testimony tending to show that some time in February or March, 1841, he sent cotton and drafts to Mobile, and received the proceeds thereof, about $3,200, and that he went with the same, and with letters of recommendation, to the City of New York, for the purchase of goods, and there purchased sundry bills of goods, of different houses, for which he paid to each house about one-half of the price of each purchase in money, the proceeds of the cotton and drafts aforesaid, and gave his own notes chanrobles.com-red

Page 46 U. S. 122

to said several houses for the residue of the purchase money, maturing at different dates, which said notes still remain unpaid, and that the sellers of said goods knew no persons in the transaction except the plaintiff; that said goods were marked in the name of the plaintiff, and sent forward to his address for Cooksville, in the State of Mississippi, but that, before reaching their destination, they were seized by the defendant, at Warsaw, in the State of Alabama, and by him sold.

The defendant then introduced testimony, conducing to show that a fraudulent and collusive arrangement had been entered into between the plaintiff and one James Randalls, sometime in June, 1840, for the purpose of screening the property of said Randalls from claims of his creditors, by which a certain stock of goods and other property, which said Randalls then had, were collusively passed to said plaintiff, and the business of said Randalls thereafter, until after the seizure of said goods by defendant, was carried on in the name of said plaintiff; but that said business, including the sending of said cotton and drafts to Mobile, the raising of said money, and the purchase of said goods in New York, though done ostensibly by said plaintiff, and in his name, was really done by said Randalls, acting by and through said plaintiff, and in his, the plaintiff's, name, and that said goods, seized and sold by the defendant, were by him seized and sold as an officer on process in his hands against said Randalls, as his, the said Randalls', property, and for his debts, and also that the plaintiff had little or no cotton at or about the time said cotton was forwarded to Mobile as aforesaid.

The plaintiff then introduced the said Randalls as a witness, and asked him the single question, whether he had interest in said goods seized, at the time they were seized and sold, to which question the witness answered that he had not. The defendant then, on cross-examination, for the purpose of contradicting said Randalls by the testimony of other witnesses, if he answered in the negative, and thus impeaching his testimony, inquired of him whether he had stated to an individual, at about the time said cotton was sent to Mobile, that he, the said Randalls, had succeeded in sending cotton to Mobile, so that the same had not been attached; but the plaintiff's counsel objected to the witness answering the question, and the court ruled that the inquiry was of matter collateral and irrelevant, and that the witness need not answer the question propounded, and he did not answer the same. The defendant also, for the same purpose last expressed, proposed to inquire of said Randalls, whether he had not stated to a certain individual, at or about the time said plaintiff left for New York, for the purchase of said goods, that he, the said Randalls, had sent said plaintiff for goods; but it was ruled by the court that it would not be competent for the defendant to discredit said witness by showing that he had made statements when out of court, and not on oath, different from chanrobles.com-red

Page 46 U. S. 123

his testimony given in court, and the question was not permitted to be put.

The court instructed the jury that if they believed that the goods purchased by the plaintiff in New York were purchased with the money of the said Randalls, and that the plaintiff acted merely as a shield for said Randalls, to protect the said goods from Randalls' creditors, that the said goods were to be considered as the goods of Randalls, and were lawfully attached by the defendant on an execution against Randalls; but that when the goods were purchased for said Randalls in part with the money of Randalls, and in part upon the credit of plaintiff, he giving his note to the several New York mercantile houses from which the purchases were made, and they being ignorant of any fraud between the plaintiff and said Randalls, then the said goods thus purchased could not lawfully be sold by the defendant on execution against said Randalls; that the remedy of creditors of Randalls, when the goods were purchased in part with the money of Randalls, and in part upon credit of plaintiff, was in a court of equity, where the interest of all concerned might be apportioned and adjusted.

The defendant thereupon requested the court to instruct the jury, that if they should find for the plaintiff, they might, in making up their verdict, deduct from the amount the money and lawful interest thereon, in all cases where said goods were purchased in part with the money of Randalls, and in part upon the credit of the plaintiff; which charge the court refused to give.

And the defendants took exception to the beforementioned ruling and charge of the court, and the refusal to charge as requested, and prayed that his said exceptions might be signed, sealed, and allowed, and the same is done accordingly.

The defendant, Thompson, sued out a writ of error, and carried the case to the Circuit Court of the United States for the Southern District of Alabama, under the act of 1839, ch. 20, 5 Stat. 315.

At March term, 1843, the circuit court passed the following order:

"This day came the parties, by their attorney, and this cause coming on to be heard upon the transcript of the record, and the matters assigned for error being heard by the court, and mature deliberation being thereupon had, it is considered by the court that there is error in the record and proceedings of the said district court; whereupon, it is ordered and adjudged by the court there that the judgment of the district court be reversed and annulled, and that the said plaintiff recover his costs."

From which judgment Mayberry sued out a writ of error, and brought the case up to this Court. chanrobles.com-red

Page 46 U. S. 125


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