66

was competent to the arbitrator to find, as a fact, that, towards the defendant, the plaintiffs were guilty of no negligence, but were careful to leave him ample room to pass." Now, in each of these three last cases, the act of plaintiff's was just as much a contributing cause "of the injury as in Lyons v. Desotelle, and the act in each case being illegal, the illegal act contributed to the injury and should have prevented a recovery, upon the reasoning of that case. The true, and, as it seems to us, the only logical rule in this class of cases, is that adopted in Sutton v. Wauwatosa, 29 Wis. 21. The plaintiff there was driving his cattle to market on Sunday, in violation of the statute, when they were injured by the breaking down of a defective bridge,

which the defendant town was bound to maintain. Dixon, C. J., in delivering the opinion, uses this language: "The cases may be summed up, and the result stated generally to be the affirmance of two very just and plain principles of law, as applicable to civil actions of this nature; namely, first, that one party to the action, when called upon to answer for the consequences of his wrongful act done to the other, can not allege or reply the separate or distinct wrongful act of the other, done not to himself nor to his injury, aud not necessarily connected with or leading to or causing or producing the wrongful act complained of; , and, secondly, that the fault, want of due care, or negligence on the part of the plaintiff which will preclude a recovery for the injury complained of, as contributing to it, must be some act or conduct of the plaintiff having the relation to that injury cause to the effect produced by it" If the plaintiff has traveled at a time prohibited by law, then, as when he has violated the statute or ordinance regulating the mode of his traveling, the proper officers should institute a prosecution on behalf of the state, and the defendant should not in the one case more than the other be allowed to constitute himself the guardian of public morals and vindicate the majesty of outraged law by inflicting, through his recklessness and negligence, upon the transgressor a penalty grossly disproportionate to the enormity of the offense.

of a

THE English government has promised to shortly introduce a bill which will change, to some extent, the rule of "common employment," as laid down by the courts.

SEPARATE FELONIES - THE RULE IN STATE v. COWELL DISCUSSED.

The defendants were jointly indicted for the crime of burglary in entering the dwelling-house of one Alderson with intent to steal. Upon the trial one of the defendants, on behalf of the state, was allowed to testify that, a few days before the commission of the burglary, he and the other defendants agreed to commit a robbery on the person of said Alderson; that they did not rob him, because the witness said he had nothing to be robbed of; that the other defendants were watching Alderson on the street for that purpose: Held, admissible and relevant, as it tended to prove the intent of defendants at the time of the entry into the dwellinghouse. State v. Cowell, 12 Nev. 337.

The case of State v. Cowell already referred to in the columns of this journal (6 Cent. L. J. 221) is the last of a line of cases in which judges seem to have striven for the practical overthrow of the well-settled rule of

criminal law that the evidence must be confined to the issue.

In this case, as well as in all others of the class to which it belongs, the existence and binding force of that rule is recognized; but the judges demonstrate to their own satisfaction that it is not infringed by the introduction of evidence showing that a prisoner has committed or agreed to commit an offense unconnected with the one for which he is on trial. They shelter themselves behind the rule which forbids the exclusion of evidence, in other respects admissible, merely because it shows, or tends to show, that the prisoner's character is bad, and allows the prosecution, in certain cases, to show that the accused has committed, or agreed to commit, a crime other than the one for which he is on trial. tell us that one of the cases in which this may be allowed, is where such evidence" tends to throw light on what were the prisoner's motives and intention in doing the act complained. of," and conclude that the evidence decided to be admissible has this tendency.

They

Such is the position of the Supreme Court of Nevada in the case in question. Whether it be correct or incorrect we shall proceed to consider.

While the writer does not believe that courts should so closely confine the evidence to the particular transaction charged that the ends of justice will be defeated and the guilty shielded, he is far from believing that they should go to the other extreme.

The "safe middle course should be followed. On the one hand, evidence having a legitimate tendency to show a guilty purpose

should not be excluded, and when other crimes committed by the prisoner are so closely connected with the one for which he is on trial that they can justly be said to throw light on his motives in doing the act complained of, evidence of their commission should be allowed to go to the jury. On the other hand, the dictates of justice and humanity require that the prosecution should not be allowed, by showing that the prisoner has committed a wholly disconnected offense, to induce the jury to convict him of a crime which he did not commit, because he deserves punishment for another which he did commit.

The rule is too well settled to admit of dispute that the commission of one offence cannot be given in evidence on the trial of a person for another, merely for the purpose of inducing the jury to believe that the prisoner committed one offense, because he committed one of the same nature on another occasion.

After a careful investigation of the subject the writer is forced to conclude that in the case of State v. Cowell this rule was violated.

What bearing on the question of a man's intent in entering a house has the fact that three days before such entry he agreed with others to rob the owner of the house on the street? Does it show that his intent was to steal? Decidedly not, unless the fact that a man is bad enough to steal tends to show that he entered a house for that purpose. If the evidence of the agreement to rob had no more bearing on the question of intent than this, it should not, as we have already seen, been received. Had it any more bearing? The writer thinks not, and his views are sustained by decisions of undoubted authority.

In Kinchelow v. The State, 5 Humph. (Tenn.) 9, it was held that an accomplice could not, with a view to sustain his testimony, be permitted to narrate other instances of crime proposed to him by the defendant, though made in the same conversation in which the crime charged was proposed. The court in its decision, said: "The only object of such testimony necessarily is to prejudice the minds of a jury, as it can by no possibility establish or elucidate the crime charged. We can well see how a jury who, in the case under consideration, might have unhesitatingly refused to find a verdict against the prisoner upon the evidence of the witness confined within its legiti

mate scope, may have been misled by the proof of the utter baseness and want of principle as detailed against him.".

In People v. Corbin, 56 N. Y. 363, it was held that upon a trial for forgery, the confession of the prisoner that he had committed other forgeries was not admissible on the question of criminal intent.

In Bonsall v. State, 35 Ind. 460, it was held that on the trial of the prisoner for a robbery committed on December 16th, it was error to allow the prosecution to show a second robbery of the prosecutor by the prisoner on the following day.

In People v. Barnes, 48 Cal. 551, it was held error for the trial court to admit evidence showing that on the night previous to that on which the burglary for which he was on trial was committed, the prisoner entered the prosecutor's room and stole a sum of money.

we

In Barton v. State, 18 Ohio, 221, it was held that upon the trial of the prisoner for stealing a horse, evidence that he had on the night of the day previous to that on which the horse was taken, stolen a sum of money, was inadmissible. In holding that such evidence was not admissible on the question of the prisoner's intent in taking the horse, the court say: "Although the court, in this instance, say that the evidence was only admitted for the purpose of showing the intent with which the defendant got possession of the property, yet we do not see any connection between the two transactions that would enable any legitimate conclusion to be drawn as to that fact. The only conclusion drawn can see that could fairly be from the evidence, would be that the defendant intended to steal the horses and other property with which he was charged, because he was a thief and had just before stolen a sum of money. Each case must be tried on its own merits and be determined by the circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes. On the part of the prosecution the general bad character of the defendant cannot be proved, when he offers no evidence of character; much less can particular acts of his be proved of which the record gives him no notice and which he, therefore, cannot be expected to meet.” See also on this point, Coleman v. People, 55 N. Y. 81; People v. Bowen. 49 Cal. 654; People v. Jones, 31 Id.

when the discharge of the mortgages was given.

2. Defendant Stone insists that whether the complainant had notice of the attachment or not is really immaterial in this proceeding, inasmuch as the levy of execution was made while the mortgages remained undischarged, and thereby new rights were acquired in which he is entitled to be protected as being rights superior to any which complainant can have to the restoration of a lien not in existence when the levy was made. But it was held, in Columbia Bank v. Jacobs, supra, that a mere levy did not give to the creditor any rights analogous to those of a bona fide purchaser, and the same principle has been recognized at the present term in Michigan Panelling, etc. Co. v. Parsell. The creditor, when he makes sale on his execution and becomes the purchaser, may acquire new equities; but until that time he stands on the rights of his debtors, and the levy may be defeated by equities which the debtor is unable to resist.

3. Reliance is placed on Bennett v. Nichols, 12 Mich. 22, as authority for the doctrine that equity is incompetent to create a lien upon lands. That doctrine has no application here. A lien discharged by mistake is, in contemplation of equity, still in existence, and the decree only declares and enforces it.

4. What has already been said would seem to dispose of the argument that Stone, by his levy, has acquired vested rights of which he can not be constitutionally deprived. We may concede to the fullest extent that the legislature can not take away a statutory lien (Gunn v. Barry, 15 Wall. 610), and the question only recurs whether this defendant ever had any lien as against the equities of the complainant. If he did not, then no question of vested rights is involved. It has been shown that only through mistake of fact did complainant divest himself of his own previous liens; and it is contrary to equity for defendant to attempt to take advantage of that mistake. But it has well been said that "courts do not regard rights as vested contrary to the justice and equity of the case." State v. Newark, 25 N. J. 197. Constitutional principles would be a mockery of justice if they might be seized upon to protect an accidental legal right to the destruction of substantial equities. It is a misuse of terms to call the action of the court below the depriving of this defendant of his rights; all it did or assumed to do was to adjust between these parties their respective equi ties, and this it did in the exercise of an undoubted jurisdiction, and without in the least venturing upon doubtful ground.

5. The decree undertook to restore the complainant to his position as mortgagee of the lands previous to the discharge being given, and a sale of the mortgaged premises was ordered to satisfy the amount due on the mortgages, unless the amount due and costs should be paid within five months. Some formal objections are made to the decree, which we think not tenable. The objection that complainant, who, for a time, had been in possession of the eighty acre lot, should have been required to account for rents and profits,

might have had force if the pleadings had brought it to the attention of the court below, but they did not.

The decree should be affirmed, with cost against the appellant.

CAMPBELL, C. J., and MARSTON, J., concurred.

BANKRUPTCY.

STILLWELL v. WALKER, ASSIGNEE.

United States Circuit Court, Eastern District of Missouri, April, 1878.

Before HON. JOHN F. DILLON, Circuit Judge.

1. ON AN APPEAL BY A CREDITOR to the circuit court from the decision of the district court, rejecting his claim under section 4984, of the Revised Statutes, the case is to be reconstructed and issues made up, and the case tried in the same way as a case at law originally brought in the circuit court.

2. WHERE THE CLAIM IS BASED on a judgment of a state court, obtained against the bankrupt before bankruptcy, an answer which sets up only matters that would have constituted a defense to the original suit, but does not ayer any fraud or collusion in the obtaining of the judgment, or any accident or mistake, is not good. And that, too, though the judgment was by default. The facts that S, the creditor, while an officer of the bankrupt corporation, purchased claims against it at a discount of 50 per cent, and afterwards received from the company its notes for the full face value of the claims, and, suing on the notes, obtained a judgment for their full amount, are only matters of defense to the original suit. They are no defense as against the judgment.

3. THAT ANY CLAIM OF FRAUD OR COLLUSION in the obtaining of the judgment or other equitable defense thereto, can not be set up by answer in a proceeding had under section 4984, but must be asserted by bill in an independent suit in equity by the assignee -semble.

Appeal from the District Court.

Dryden & Dryden for the creditor; W. R. Walker, pro se.

DILLON, Circuit Judge, orally delivering his opinion, said:

I proceed to announce my judgment in the case arising out of the bankruptcy of the State Insurance Company of Missouri, in which one A. J. Stillwell is a creditor.

This is an appeal in bankruptcy under the eighth section of the Bankrupt Act as it originally stood, now section 4984 of the Revised Statutes. Stillwell filed a claim in the bankruptcy court as a judgment creditor of the insurance company, bankrupts, on a judgment recovered in a state court of competent jurisdiction in May, 1875, for about $8,500. His claim was contested in the bankruptcy court, on the ground that at the time he purchased it he occupied a fiduciary relation to the company, and on the further ground, as appears by the pleadings in that court, that he procured the rendition of this judgment by means of fraudulent contrivances. On the pleadings thus constructed, the matter was heard in the bank

ruptcy court, and the issue was, whether he was entitled to hold this judgment for the full amount, or for such sum only as he actually paid for the claim. The matter was decided in favor of the assignee in bankruptcy, and his claim scaled down and reduced to between four and five thousand dollars. Dissatisfied with this, he prosecuted this appeal, and in that way the case comes on at this time.

It is material to take into view, in determining the question as now presented, the provisions of the Bankrupt Act, in respect of appeals. [Here the court quoted § 4984, Rev. Stats.] The substance of that provision is, that while the case is nevertheless heard in the bankruptcy court, yet when the creditor takes an appeal from a decision in favor of an assignee and the case comes into the circuit court, it is to be there reconstructed; and the creditor is required to file a declaration at law, and the issues are then to be made up, and the case tried in the same way as a case at law originally commenced in the circuit court. Conforming to this requirement, the creditor filed his declaration in this court, which was in the usual form of an action on a judgment. To this cause of action thus stated, the assignee files his answer, to which there is a demurrer. It will be borne in mind that the judgment in question was rendered in May, 1875, and that the bankruptcy did not occur until September, 1875. In October, 1874, Mr. Stillwell, as averred in the answer, sustained toward this company this relation, namely, he was vice-president and director in the company, and member of the finance committee; and when sustaining these relations purchased claims against the company at fifty cents on the dollar-such claims arising out of losses sustained by the company which it could not pay; that the company issued to him afterwards certificates therefor, and it was on these that he recovered his judgment. The answer does not aver that he sustained this relation when the company issued to him certificates of indebtedness for one hundred cents on the dollar. The assignee claims that, although if the original claimants held these claims, they would be good for one hundred cents on the dollar, yet the creditor here--Mr. Stillwell-is limited in his recovery to the amount by him actually paid. And they issued to him certificates of indebtedness, which not being paid, he instituted suit in a court of competent jurisdiction of the state, and recovered judgment; and, although not pleaded, it is said in argument to have been a judgment by default.

Now, at this time, it is admitted he had resigned his office and was not connected with the company, and at the time he recovered his judgment was not a member of the company. This is the whole plea. It does not say that he sustained any fiduciary relation at the time he brought his suit, nor does it say this judgment was obtained by any fraudulent contrivance. Nothing of the sort. Now, I will admit that if a person sustaining a relation-as Mr. Stillwell's-to the company, purchased these claims at fifty cents on the dollar, he would be held to have purchased them as a trustee

for the company, and the recovery would be limited to the amount paid. But there is another element in this case, and as it now stands a controlling element, namely: he has not presented these claims for allowance, but has instituted suit in a court of competent jurisdiction, and brought at a time when he sustained no trust relation, and that court has given him judgment for the full amount. That judgment is as good as any other, unless it can be attacked for fraud, accident or mistake. It was the duty of the company when sued, supposing they had a defense, to make it, and if they failed to make it when it was open to them, without any fraudulent contrivance or collusion on the part of the creditor, it is presumptively as valid as any other judgment. That principle has been asserted so often in the Supreme Court of the United States, that it can be open to no controversy whatever. There are three cases bearing directly on the point. For sake of brevity I quote Judge Curtis' statement of them: "A court of equity does not interfere with judgments at law, unless the complainant had an equitable defense of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his servant." Hendrickson v. Hinckley, 17 How. 443. And will not relieve against a judgment at law, where the defendant had a legal defense, which he omitted to set up, and does not satisfactorily account for such omission." Tample v. Barnes, 14 How. 70. "Nor will it relieve where the defense is that the contract on which the judgment rests was made in violation of a statute." Ibid. Why? Because it was his privilege, when sued, to come into court and plead these defenses, and, if the defenses were available at law, and he does not plead them, and there has been no fraudulent collusion, that judgment is effectually an estoppel for ever between the parties.

In the case of Cromwell v. Sac County, recently decided by the Supreme court of the United States (see 4 Cent. L. J. 416), the same principle has been applied to a judgment by default; and in that case they settled a point which has been in some confusion in the books; they held that where the second suit is on the same cause of action, the judgment is not only an estoppel upon what was in litigation, but upon every thing that might have been brought in litigation. So the matter now stands. I am constrained to hold that the judgment is conclusive of the rights of these parties, unless it can be assailed or impeached for fraud, or upon some ground recognized as sufficient in a court of equity. Do you propose to amend, Mr. Walker?

Mr. Walker: Yes sir, I propose to amend.

DILLON, J.: There is another question: whether you will not be obliged, if you have a defense which is available in equity, and not at law, to attack this judgment in this court in the same manner in which you would be obliged to do if the case had been originally brought here aside from the bankruptcy to recover on a judg