Nicoll v. United States

18 F. Cas. 230, 1 U.S. Law Int. 24, 1829 U.S. App. LEXIS 371

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: November 22, 1829
• Status: Published

Opinion

Before WASHINGTON, Circuit Justice.

The learned judge consumed two hours on Saturday morning in the delivery of an extremely lucid and powerful charge. The prominent points adjudicated, as well as touched upon, were principally these: “That the securities or title papers presented by the plaintiff were valid and legal; that the question of consideration did not arise, the execution of the instrument being prima facie evidence of it, and perfectly good, unless disproved by the defendant; that, the title and transfer being good, the allegation of defendant that they were void, on the eight grounds urged in relation to fraud, was not law, inasmuch as no one of the grounds per se constituted a fraud in law or fact. The learned judge then went over the different points as to fraud, and proved that there was nothing in either of them. He animadverted with great severity upon the customhouse officers' of 1825; said that they were not only negligent and lazy, but unfaithful; that the frauds were caused by acts of theirs, not only of omission, but of commission; and that they actually threw the shield of lawfulness over the whole transaction by furnishing Thomson with documentary proofs of fairness. As to the point that Floyd S. Bailey being an acknowledged accomplice of Thomson in the tea frauds, and the plaintiff’s agent, and the plaintiff being responsible for his acts, the judge said, it was so, if Bailey was a general agent of plaintiff; but not an agent for particular purposes; which was •the real fact the jury was to determine. Upon the point that the transfer to Nicoll was a full assignment of property, omitting only a trivial párt, which realized to the assignees but $6,000; and, that being so, Nicoll was seized of the transferred property to the use of the United States, in the same manner as any general assignee would be, the learned judge decided that if the jury believed It was the intention of Nicoll and Thomson to execute an instrument to defraud the United States of their priority, the transfer was void, as to the preference, and Nicoll stood as assignee for the benefit of creditors; and the amount not assigned would be no alteration of the thing, if it were trivial, and merely omitted colorably, with a view to carry on the deceit with greater effect. The jury must be fully satisfied of such an intention; fraud was never to be presumed until actually proved; and the jury would of course look at the fact that Thomson still continued his mercantile transactions as usual, and did not make a general assignment until compelled.”

The judge commented upop the point whether a mortgage of all property would be an assignment under the act, but gave no decision. As to the question of damages, the judge left it entirely to the jury; if they were satisfied the right of property was in the plaintiff, then the taking by the marshal was illegal, and moderate compensatory, but not vindictive, damages should be given; the verdict would be for the plaintiff, the amount of damages agreed upon, and not for the value of the property, that being already in plaintiff’s hands; or for defendant

The jury allowed the Messrs. Nicoll $220,-000, all the property claimed, and damages amounting to $39,249.66.