Day, J.
— The abstract shows that the plaintiff, to sustain the issues on his part, introduced evidence tending to show that on the second day of February, 1880, and at the time of the alleged trespass, he-was the owner, and in possession of the goods in controversy, at Avoca.
The defendants upon their part introduced evidence tending to show that Harter & Olaus, a co-partnership theretofore doing business at Des Moiues, Iowa, were the real owners of the goads in controversy at the date of the alleged trespass, and that said French was acting as their agent merely, in possession.. That he had paid nothing for said goods, and had no interest therein except as said agent in charge. They introduced further evidence tending to show that certain goods were fraudulently transferred to said French' by Harter & Olaus, and for the purpose of placing them beyond the reach of their creditors, and to defraud them, and that French had knowledge of such fraudulent purpose at the time he so received and pretended to purchase the same. That he had disposed of some of the goods so transferred by Harter & Claus at retail, and with the proceeds purchased other goods from divers third persons, and mixed the goods so purchased with those received from Harter & Olaus and remaining on hand, and from the stock so intermingled defendants took the goods in controversy. Defendants further introduced evidence tending to show that on February 2, 1880, and for a long [145]*145time prior thereto, said Harter & Claus had been and still were debtors of Eield, Leiter & Co., of Chicago, on account of merchandise purchased; that on January 7,1880, said Harter & Claus failed, owing about $26,000, and showing assets in sight and in their own names of about $10,000, and failed in any manner to account for the proceeds of the French stock; that on the day of the alleged trespass Perry Eeel was the acting and qualified sheriff of Pottawattamie county, and that defendant, Orrin Beswick, was his duly appointed and acting deputy at Avoca, in said county. They also produced evidence to the court that a certain writ of attachment theretofore issued from the office of the clerk of the circuit court of Polk county, Iowa, to the sheriff of Pottawattamie county, in an action therein, in which Eield, Leiter & Co. were plaintiffs and Harter and Claus were defendants, also the return on said writ, had been and were lost. Thereupon the court permitted secondary evidence to be introduced concerning the existence and contents of said writ, as also the circumstances under which the defendants seized the goods in controversy; which evidence is as follows: Perry Eeel testified: “ I am the defendant and sheriff of this county. I saw a writ of attachment issued from the circuit court of Polk county and directed to me, in the case of Field, Leiter & Co. v. Harter & Claus. Under that writ we levied upon the goods in controversy. Mr. Beswick, of Avoca, had the matter in charge. I returned it to the clerk at Des Moines, Polk county, Iowa, by mail. I am not sure whether I received the writ from Mr. Beswick or Mr. Stevens. I don’t know that I saw it prior to the time it was levied. I think I did not deliver the writ to Beswick personally, 1 may have sent it to him. I presume I read the paper. I am in the habit of looking them over; but I cannot now testify positively in regard to it. My best recollection is it was issued from the circuit court of Polk county, Iowa. I don’t know whether I read all of it. I must have read enough to see what the amount of goods was that was to be levied on. I think I read enough [146]*146of the body of the paper to determine at least that it was a writ of attachment, and the amount of goods necessary for me to levy upon. I think it was at my office before it was levied, but don’t think I then saw it. I saw the writ, but I can’t say how it came to me, whether by mail from Mr. Beswick, or whether Mr. Stevens brought it. I can’t remember date when I saw it. To the best of my recollection I inclosed it in an envelope myself for the purpose of returning to the clerk of Polk county. I think I made the return myself. I am pretty sure I deposited it in the post-office, but I will not be sure. I think I received a letter from the clerk. Can’t remember name of clerk signing writ. My impression is it was Mr. Keyes, and that there was a change in the office about that time. Am not positive that paper was signed by Mr. Keyes. I cannot now recollect whether writ had a seal upon it. Don’t know that I paid that particular attention to it, but presume I did. I have an indemnifying bond that I drew up from the writ of attachment, and from it I am able to state the amount of the writ and the date of issuing the writ, as I drew the bond with the writ before me. It also shows the parties. The writ was issued for $918.45, from the circuit court of Polk county, Iowa, on the twenty-ninth day of January, 1880, in a cause wherein Field, Leiter & Co.' et al. were plaintiffs, and Harter & Claus were defendants. I examined the writ sufficiently to draw up this indemnifying bond from it. I think it was on a printed blank. I am almost sure that the facts recited in the bond were in the writ —the names of the parties — the amount — court from whence it was issued — but I don’t remember the words of the attachment, of course. I don’t know positively by whom it was signed. Was not acquainted with hand writing of clerk of Polk county, and personally could not say whether he signed it or not, because I did not see him sign it. I have no recollection of examining writ to see whether there was a seal on •or not. The writ required me to make a levy. I put it in •an envelope, addressed it to the clerk, and have not seen it •since.”
[147]*147A. "W. Stevens testified as follows: “ I have heard the testimony with reference to the writ of attachment. I know about the writ of attachment having issued against H'arter & Claus to the sheriff of Polk- county, and one to the sheriff of Pottawattamie county: I brought this last one here and gave it to Mr. Eeel in his office in this building. I arrived here in the evening. I supposed, of course, it should be delivered, and, not knowing of any deputy, I asked him to give me a deputy to execute the writ. He looked over the writ, and asked me where it was to be served. I told him at Avoca. He then said he had a deputy there, Mr. Beswick, and that lie would send it to him. I told him 1 wanted it sent so as to have it levied the next day. It was then late, and he gave me the writ to take to Mr. Beswick, which I did. I was present when it was issued, as also when it was levied. The goods of Mr. French in controversy were taken under and by virtue of this writ of attachment.”
The defendant also read in evidence a certified transcript of a judgment rendered by the circuit court of Polk county, July 27, 1880, in the case of Field, Leiter & Co. v. Harter & Claus, for the sum of $629.63, which recites that it appearing “that the allegations of fact constituting the cause of attachment as alleged in plaintiffs’ petition were true, and that said attachment properly issued, it is, therefore, ordered and adjudged that plaintiffs have and recover of defendants, Harter & Claus,” etc. “ That a special execution issue herein for the sale of said attached property, to-wit, the personal property consisting of the stock of goods, merchandise, accounts, etc., levied on and taken as the property of defendants by the sheriff of Pottawattamie county, Iowa, under a writ of attachment issued herein to said sheriff, and that the same be sold,” etc.
l.
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Day, J.
— The abstract shows that the plaintiff, to sustain the issues on his part, introduced evidence tending to show that on the second day of February, 1880, and at the time of the alleged trespass, he-was the owner, and in possession of the goods in controversy, at Avoca.
The defendants upon their part introduced evidence tending to show that Harter & Olaus, a co-partnership theretofore doing business at Des Moiues, Iowa, were the real owners of the goads in controversy at the date of the alleged trespass, and that said French was acting as their agent merely, in possession.. That he had paid nothing for said goods, and had no interest therein except as said agent in charge. They introduced further evidence tending to show that certain goods were fraudulently transferred to said French' by Harter & Olaus, and for the purpose of placing them beyond the reach of their creditors, and to defraud them, and that French had knowledge of such fraudulent purpose at the time he so received and pretended to purchase the same. That he had disposed of some of the goods so transferred by Harter & Claus at retail, and with the proceeds purchased other goods from divers third persons, and mixed the goods so purchased with those received from Harter & Olaus and remaining on hand, and from the stock so intermingled defendants took the goods in controversy. Defendants further introduced evidence tending to show that on February 2, 1880, and for a long [145]*145time prior thereto, said Harter & Claus had been and still were debtors of Eield, Leiter & Co., of Chicago, on account of merchandise purchased; that on January 7,1880, said Harter & Claus failed, owing about $26,000, and showing assets in sight and in their own names of about $10,000, and failed in any manner to account for the proceeds of the French stock; that on the day of the alleged trespass Perry Eeel was the acting and qualified sheriff of Pottawattamie county, and that defendant, Orrin Beswick, was his duly appointed and acting deputy at Avoca, in said county. They also produced evidence to the court that a certain writ of attachment theretofore issued from the office of the clerk of the circuit court of Polk county, Iowa, to the sheriff of Pottawattamie county, in an action therein, in which Eield, Leiter & Co. were plaintiffs and Harter and Claus were defendants, also the return on said writ, had been and were lost. Thereupon the court permitted secondary evidence to be introduced concerning the existence and contents of said writ, as also the circumstances under which the defendants seized the goods in controversy; which evidence is as follows: Perry Eeel testified: “ I am the defendant and sheriff of this county. I saw a writ of attachment issued from the circuit court of Polk county and directed to me, in the case of Field, Leiter & Co. v. Harter & Claus. Under that writ we levied upon the goods in controversy. Mr. Beswick, of Avoca, had the matter in charge. I returned it to the clerk at Des Moines, Polk county, Iowa, by mail. I am not sure whether I received the writ from Mr. Beswick or Mr. Stevens. I don’t know that I saw it prior to the time it was levied. I think I did not deliver the writ to Beswick personally, 1 may have sent it to him. I presume I read the paper. I am in the habit of looking them over; but I cannot now testify positively in regard to it. My best recollection is it was issued from the circuit court of Polk county, Iowa. I don’t know whether I read all of it. I must have read enough to see what the amount of goods was that was to be levied on. I think I read enough [146]*146of the body of the paper to determine at least that it was a writ of attachment, and the amount of goods necessary for me to levy upon. I think it was at my office before it was levied, but don’t think I then saw it. I saw the writ, but I can’t say how it came to me, whether by mail from Mr. Beswick, or whether Mr. Stevens brought it. I can’t remember date when I saw it. To the best of my recollection I inclosed it in an envelope myself for the purpose of returning to the clerk of Polk county. I think I made the return myself. I am pretty sure I deposited it in the post-office, but I will not be sure. I think I received a letter from the clerk. Can’t remember name of clerk signing writ. My impression is it was Mr. Keyes, and that there was a change in the office about that time. Am not positive that paper was signed by Mr. Keyes. I cannot now recollect whether writ had a seal upon it. Don’t know that I paid that particular attention to it, but presume I did. I have an indemnifying bond that I drew up from the writ of attachment, and from it I am able to state the amount of the writ and the date of issuing the writ, as I drew the bond with the writ before me. It also shows the parties. The writ was issued for $918.45, from the circuit court of Polk county, Iowa, on the twenty-ninth day of January, 1880, in a cause wherein Field, Leiter & Co.' et al. were plaintiffs, and Harter & Claus were defendants. I examined the writ sufficiently to draw up this indemnifying bond from it. I think it was on a printed blank. I am almost sure that the facts recited in the bond were in the writ —the names of the parties — the amount — court from whence it was issued — but I don’t remember the words of the attachment, of course. I don’t know positively by whom it was signed. Was not acquainted with hand writing of clerk of Polk county, and personally could not say whether he signed it or not, because I did not see him sign it. I have no recollection of examining writ to see whether there was a seal on •or not. The writ required me to make a levy. I put it in •an envelope, addressed it to the clerk, and have not seen it •since.”
[147]*147A. "W. Stevens testified as follows: “ I have heard the testimony with reference to the writ of attachment. I know about the writ of attachment having issued against H'arter & Claus to the sheriff of Polk- county, and one to the sheriff of Pottawattamie county: I brought this last one here and gave it to Mr. Eeel in his office in this building. I arrived here in the evening. I supposed, of course, it should be delivered, and, not knowing of any deputy, I asked him to give me a deputy to execute the writ. He looked over the writ, and asked me where it was to be served. I told him at Avoca. He then said he had a deputy there, Mr. Beswick, and that lie would send it to him. I told him 1 wanted it sent so as to have it levied the next day. It was then late, and he gave me the writ to take to Mr. Beswick, which I did. I was present when it was issued, as also when it was levied. The goods of Mr. French in controversy were taken under and by virtue of this writ of attachment.”
The defendant also read in evidence a certified transcript of a judgment rendered by the circuit court of Polk county, July 27, 1880, in the case of Field, Leiter & Co. v. Harter & Claus, for the sum of $629.63, which recites that it appearing “that the allegations of fact constituting the cause of attachment as alleged in plaintiffs’ petition were true, and that said attachment properly issued, it is, therefore, ordered and adjudged that plaintiffs have and recover of defendants, Harter & Claus,” etc. “ That a special execution issue herein for the sale of said attached property, to-wit, the personal property consisting of the stock of goods, merchandise, accounts, etc., levied on and taken as the property of defendants by the sheriff of Pottawattamie county, Iowa, under a writ of attachment issued herein to said sheriff, and that the same be sold,” etc.
l. hsauddringof goofs: burden to distinguish. I. Upon the introduction of this testimony, the court instructed the jury as follows: “If you find from the evidence that the plaintiff was the owner of the goods at the time they were taken by defendants, . . , ,, , , , , . , , that is, that he then held the title to them m his [148]*148own right, the only other question that you will have to determine will relate to the amount of damages which plaintiff is entitled to recover on account of the taking of the goods by defendant. It is true that defendants have alleged that, if Harter & Claus in fact sold to plaintiff any portion of the goods which he had in the store at Avoca, such sales were made by them for the purpose of hindering and delaying their creditors in the collection of their debts, and that plaintiff made the purchases of them in the perpetration of such fraud. But in establishing this claim it is essential that they prove that the goods seized by them were in fact sold by Harter & Claus to plaintiff, and there is no evidence tending to prove this fact.” The defendants assign the giving of this instruction as error. The appellee insists that this instruction is in harmony with, and justified by, Rutledge v. Evans, 11 Iowa, 287. We think, however, that the facts of this case, do not bring it within the principle of Rutledge v. Evans. In that case the plaintiff brought an action of replevin for twenty-two dry hides. The defendant claimed them under an execution against one Jenkins. To sustain his claim, the defendant offei’ed to prove that Jenkins, being largely in debt, conveyed a stock of goods to Rutledge for the purpose of defrauding his creditors, and that the hides in controversy had been purchased with the goods, or the proceeds of the goods, which plaintiff had fraudulently obtained from Jenkins. It was held that this evidence was properly excluded. It is to be observed that it was not proposed to prove that any of the hides had been fraudulently obtained from Jenkins. In this case the abstract shows that evidence was introduced tending to show that French had disposed of some of the goods so transferred by Harter & Claus at retail, and with the proceeds purchased other goods from divers third persons, and mixed the goods so purchased with those received from Harter & Claus, and i-emaining on hand, and from the stock so intermingled defendants took the goods in controversy.- It appears, therefore, that a portion of the goods in controversy are the identical goods [149]*149transferred by ITarter & Claus to the plaintiff. To the extent of the value of the goods so transferred, the defendants should be protected, if the transfer was fraudulent. Besides, if French was the fraudulent grantee of the property, and he disposed of part of it, and bought other property which he mingled with that fraudulently conveyed to him, the burden of proof is upon him to fu-rnish the means of distinguishing the property so mingled, or to prove its value. See Stuart v. Phelps, 39 Iowa, 14; 2 Kent’s Commentaries, p. * 3G5. In our opinion, the evidence submitted does not justify the instruction under consideration.
2. wbit oí atpresmnption m favor oí. II. The court also instructed the jury as follows: “It is also essential that they should prove, in establishing this claim, that they seized the goods on a valid writ 0;f attachment against the property of Harter & Q]auSj an(j j am 0f opinion that they have not introduced sufficient evidence of this fact. And for these reasons I am of opinion that, if an actual sale of the goods was made to plaintiff and he purchased them in his right, we cannot now enter into any inquiry as tothe bona, fides of the sale.” The giving of this instruction is assigned as error.
The defendants have proved with reasonable certainty that the goods in question .were levied upon under a writ of attachment emanating from the circuit court of Polk County. They have also shown the date of the writ, the case in which it issued, and the amount of property which it authorized to be attached. The defendants have failed to prove the exact language of the writ, the name of the clerk who issued it, or that the writ was under seal. There is a legal presumption in favor of the due execution of papers .emanating- from a public office. Upon proof that the writ under which the defendants justify emanated from the Polk circuit court, its sufficiency as to form and seal, in the absence of any proof impeaching it, will be presumed. McNorton v. Akers, 24 Iowa, 369. In the giving of this instruction there was error.
Keversed.