Wilson v. Martin

7 N.W. 83, 44 Mich. 509

Opinion

Marston, C. J.

Wilson brought this action of replevin to recover possession of certain stave bolts which the defendant, while acting as constable, justified taking upon an execution issued upon a judgment rendered in favor of Samuel Clemens v. David Center. Upon the trial, on cross-examination of the plaintiff and his witnesses, counsel for defendant sought u to show that the transfer from Center to Wilson was a fraud on creditors and on Clemens as such creditor,” and for such purpose th.e court admitted testimony, although properly •objected to, having such tendency. The judgment under which the defendant justified was afterwards received in evidence, but finally ruled out, not being considered a valid judgment.

The judgment having been held invalid, there was no foundation for any one to attack the sale from Center to plaintiff as fraudulent, and the first and second requests

* of plaintiff to charge should have been given.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.

The first and second requests were:

“1st. The court having held that the judgment and execution under which the defendant justified in this case, is void, the defendant is not in a position to attack the transfer from Center to Wilson, if the jury believe there was such a transfer.

“2d. The question of fraudulent intent in the transfer from Center to Wilson cannot be passed on by the jury in this case, as the defendant is net a judgment creditor or entitled to attack the transfer on account of fraud.”