DOWELLV. APPLEGATE.
419
Commg now to the testhnony in this case" if you believe the th'ere can be no doubt whatever the government's defendant's guilt. They testify beyond all question that the'defendant did demand; recehre, and retain a larger 'campe'lisation for his services than $10. If they tell the tJ;uth abo-q,t, it there c,an be certainly no doubt of his gu'ilt, and the only quJstion' wIth you \v"lll be whether or not on that evidence will coD.victthe defendant. Did they speak the truth and do 'you believe them, or do you believe the testimony of the defendant, offered to show that the transaction was a loan to in good faith of the money, 'and not a retention, receiving, or demanding more than his legal fees ? I;Tha.t isa question with which this court has nothing to do. 'It is entirely for you to determine. It is a function' of yours upon which I would 'not trench, and r do not propose to say which would in any way influence your. decision, and I to be careful not to' say anything which shall interfere with your determInation of that tion. But it is my duty to give you in charge certain rules for your guidance in weighing and testing the. evidenCe on which you act.
9£
him.
The court then proceeded to charge the jury the rules for test- ' evidence and applying them to the testimony in this
DOWELL
v.
ApPLEGATE
and others.
OQU1't, D. Oregon.
January Ii, 1883.)
1, VOLUNTARY CONVEYANCE TO CHILDREN.
But a conveyance to a grandchild under like circumstances, upon a promise to said child and its father to make. the same,is.not voluntary, but a conveyance for a valuable consideration, and therefore valid as against such lien.
420 8. ESCHEAT FUND.
FEDERAL REPOnTER
The secretary of state, asilUcll. is not anthorized unrler the laws of Oregon (chapter 16, p. 582) to collect eSCht'llt funds from the treasurer of state: and if he does so without authority from the party entitled thereto, OT' fails to' account to him for the same, his sureties are not holden therefor.
Suit in Equity in aid of a judgment creditor. Addison O. Gibbs and the plaintiff in person, for plaintiff. W. Oarey Johnson, for defendants. SAWYER, J. After a careful con!lideration of the pleadings, evidence, and arguments of counsel in this case, I have reached the fol. lowing conclusions, which I shall announce without any elaborate discussion of the evidence, or the points presented. I am not satisfied. that Jesse Applegate, or the other defendants, had any ac/tual kno'Yledge of any defalcations of May, prior to the appoilltment of the investigating committee of the legislature in 1870, or a,t the date of the of the several conveyances sought to be set aside. ,On the contrary, ,the evidence largely preponderates in favor of the opposite conclusion. I think those conveyances were made and accepted in good faith, and without any intent to defraud the ,state, or to evade the payment of any liabilities of Jesse Applegate on the official bond of May, subsequently developed, and on which the judgment sought to be satisfied was afterwards recovered. There was, then, no actual fraud in making the conveyances, and they cannot be set aside on that ground. The conveyances bearing date in April, '1867, I am satisfied were executed in that year. They bear date in April, 1867, and have certificates of acknowledgment appended thereto, which purport to have been made in May of that year,a few days after their dates; and all the direct testimony is that they were fully exe.cuted and de· livered as early, at least, as the dates of acknowledgment; and that possession and control were taken in accordance with the conveyances. Conceding them to be voluntary conveyances from a father to his children for the purposes stated by them,they were made before any of the defalcations under the bond of 1866, and before any indebtedness accrued thereby to the state; and Jesse Applegate at the time owed no other debts than those arising upon the official bonds of May, 1862 and 1866, upon which judgments were subsequently recovered. The indebtedness on the bond of 1862 was comparatively small, being something over $1,300. If the defalcations on this bond had already arisen, it was not known to the defendants, and there was ample property of Jesse Applegate left after these conveYlLnces were
DOWELL fl. APPLEGATB.
made to satisfy this liability, as it was, in fact, Mterwa.rlls Batisned out of other property of Jesse Applegate, without even resorting to any of the property subsequently conveyed to his other children by the remaining conveyances now in question. That judgment having been fully satisfied, the liability upon which the recovery was had, arising out of defalcations under the bond of 1862, cannot altect the questions now involved, either as to the conveyance of 1867 or those subsequently made, conceding them to be voluntary. At the da.tes of the several conveyances in 1869, and subsequently, I do not think Jesse Applegate had sufficient property left, after making those conveyances, to reasonably satisfy the liabilities at that time accrued and existing on the bond of 1866, which have since passed into judgment against him and complainant, Dowell, and been paid by Dowell. Those conveyances made by Jesse Applegate of his rights to his children, I am satisfied were voluntary conveyances. The only consideration was a promise of the father to his several children that if they would remain at home with him, and work on the farm till they should, respectively, become of age, or marry, he would do by them as he had done by the older brothersconvey to them a part of his lands, putting them all upon an equality, without agreeing to convey any specific tract. This remaining with him was nothing more than they were bound to do' under the law. They, therefore, neither gave nor promised any consideration. They remained, and the father simply fulfilled' his promise, but the several conveyances can only be regarded in law as having been made upon consideration ollove and affection-a worthy, proper, and lawful thing to do, when the father is free from debt, and able to do it without injury to third parties·. ·But the law does not permit one to take that which really belongs, or ought to belong, to another, or is liable to satisfy another's demand, and give it to his children upon the consideration of love and affection. Sonie of these children, in fact, remained until after attaining their majority; but there isno independent additional agreement shown by the' evidence, by which they were bound to so remain. There was no further contract for service, or further promise on account of their further services. I think, 'therefore, that these conveyances were taken subject to the rights of creditors existing at the time; and that the interest in the lands of Jesse Applegate attempted to be conveyed, is liable to be sold for the satisfaction of the judgment in favor of the state, which Dowell has paid; and that Dowell is subrogated to the rights of the state as t9 one·half of the amount of the judgment paid by him-.
422
FEDERAL· REPORTED.
The conveyance' to Charles PutnaDl, the grandson of Jesse Apple. gate,stan9.!J ,'lpO.n a different footing. He was under no obligation tos.erye Applegate,but he did continue in his service from 14 till over 21 of age, on a promise made to him and to his father, some years before the execution of the official bond of May, 1866, that Applegate wo.uld oonvey to him a portiQn of; land, in' all respects, ashe had; dOlle1a,nd agreed to do to his other childr.en. This service formed a good and valuable pecuniary oonsideration, and the testimony shows that it was adequate to the value of the land. I think this conveyance valid as against the judgment now sought to be enforced. Jesse Applegate had only a life estate in the south half of the donation claim. The deed ot Mrs. Applegate to her husband in the.papers is not set up in the bill or pleadings, and is not relevant to any issue made. It cannot be known what defense might have been made to it, had it been alleged and relied on. It is not admissible, and cannot be considered. Mrs. Applegate's conveyances t.o. her children are, therefore, valid as to her interest; and those in. terests are not liable to be applied to the satisfaction of the judgment in question. , A question arises on the record ast,o when the indebtedness to the atate attached as against Jesse Applegate and complainant Dowell in consequence of the defalcations of May. Was it as to each embezzlement from the moment the funds were respectively appropriated, or from a demand on the part of the state and a failure to pay over the fund? Or at the close of the term when he failed to pay over on his retiring from office? Or when the amount was judicially ascertained by the judgment in the suit of the state against May and his sureties? These questions, though important, have not been argued by oounsel, and.no authorities have been cited on the questions. I do not see the bond in the record, but I suppose it contains the usual conditions in official bonds. If so,there must have been a breach at every time when May unlawfully appropriated the money of the state, as to the amount so appropriated, and I am disposed to think that this is the point of time as to each sum appropriated at which the liability or iude1)tellness of the sureties to the state attached. Neither the state nor the complainant, Dowell, is entitled .to any · account of rents and profits of the lands from the dates of the sev· eral conveyallces to the present time. Dowell has nothing in the land beyond 8. judgment lien, and this is neither 8. jtt. ad, 'fem nor 8. jus in re, but simply a right to have his judgment satisfied out of the land. There is trust in his favor, actual or constructive. Had
DOWELL V. APPLEGATE.
the property remained in Jesse Applegate, bewotild,lia,iV8 bMtl entitled to the use of ituntrt an actual sale, as iIfthe c·aise of other real property sold on exedution. His grantees are in' no worse condition. The held'valid Ido not think void under the evidende in the ca'Sefor want (jf stamps of greater value than the ones usea.. At all events, the' complainant does not present a case of such superior equities' as to'entitle him to caIrnpona court ,of equity to grantliim affirtilativerelief upon that ground; 'A good deal has been· said in ihe case about the drawn out, ostensibly on behalf Of anescheated estate, and used in the purchase of andrganfor' a chureh. That money seems to have' been 'refunded by the church. I'tlOnot perceive'that this matter iii any waya:ffects the case. I see:how the obtaining and hy May, in the manner sho,,"n,could be;an 'embezzrementOf the funds of the estate' for which his sureties are liable. I'Mnnot find' by the statute that be was 'in any way interested with: that fund.. n was to go irito tbe'treasury, and tbereremain until' drawn 'Out by some one authorized to draw it. ' It was got out by May in some'way illegally, in the assumed character of agent for the parties legally entitled to l'eceivethe fund in a proper manner. May was not treasurer; and the fund was never intrusted by the state to his keeping for any purpose. He had no duties in comiection with it: If, in his assumed character of agent for the parties, he unlawfully got hold of the money, he was doubtless liable to them, and perhaps to the state ; but it was not an' official act f01'which his sureties were '·liable.' But I do not understand that this forms any part of the paid by Dowell, or that it can in any view affect the rights of the partie's in this case. Upon the views taken; there must be a decree for the complainant subjecting the life interest of Jesse Applegate in those portions of the south half of the donation claim, and the whole of the remainder of the lands described in' the bill embraced in all the conveyances made in 1869, or so much thereof as may be necessary to satisfy the judgment for all moneys interest thereon arising from defalcations whieh had accrued at· the date of 'the several conveyances respectively, and for costs DEADY, J. 1 concur in the conclusions reaehed by the circuit judge in the foregoing opinion and the reasons given therefor; and. after hearing the cOl1nsei for the parties, as directed by' him, ha.ve settled the' terms of the decree in the case.
424
rEDERAL REPORTER.
Before Itating them, it may be well to call attention to some of the leading facts in the case. On September 6, 1862, Jesse Applegate and others became sureties on the official bond of Samuel E. May, secretary of state, for the term of four years, and on August 4, 186q, said Applegate and B. F. Dowell became such sureties on his sf'cond official bond for a like period thereafter. At both these dates property consisted substantially of certain lands, Jesse including the donation claim No. 38, in township 22 S., of range 5 W. 'Of the Wallametmeridian, and situate in Douglas county, which, with the exception of a tract of 880 acres on Mt. Yoncalla, he suband one grandchild, in considsequently conveyed to bis eration of services performed by them on the farm during their nonage, and in pursuance of a promise by him to that effect, as follows: To William H. Applegate, 160 acres of the N. t of the donation claim by deed dated April 6, 1867, and 80 acres of the. same by deed dated April 19,1869; to Daniel W. Applegate, 146 acres in the S.l of the donation claim, in which he had a life estate for his own life, by deed dated April 6, 1867, and 80 acres lying partly in .the N. and .partly in the S. t of the donation,but the larger' part in the latter, by deed dated April 20,1869; to Peter Applegate, 175 acres of the S. t of said donation and 41.31 acres in section 28 of the township aforesaid by deed of April 21,1869; to Sallie Applegate, 160 acres in section 23 of township 23 S., of the range aforesaid, by deed of December 2, 1871, and to Charles Putnam, his grandson, 240 acres in township 22 S., of the range aforesaid. At the date of the conveyances, in 1867, May was a defaulter to the state under his first bond in the sum of $1,328.29, and under his second bond he became a defaulter in the sum of $8,524.25, of which amount $5,546 was incurred before January I, 1869. In 1874 the state obtained judgments on those bonds for these defalcations, amounting, with costs and expenses, to $11,258.14. On June 27, 1878, Dowell obtained a judgmentagainst Jesse Applegate in the circuit courtfor the county aforesaid for the sum of $4,S82.19,the same being the one-half 'of the amount theretofore paid by him to the state on the judgment obtained by it against Dowell and Applegate on accol;lnt of May's defalcations under the bond of 1866, together with $146.69 costs and disbursements, making in all the sum of $5,028.88; and on November 16, 1878, Dowell paid the state the remaining sum due on said judgment against himself and Applegate, to-wit, $1,385.64, and gave notice to the clerk of such payment, and his intention to olaim oontribution therefor, as pro.
DOWELL 11. APPLE(UTB.
425
vided in section 295 of the Code of Civil Procedure, and in pursuance of such notice an'd claim an execution to issue upon said judgment against Applegate, upon which the Mt. Yonca:Ila tract of. land was sold, and the proceeds, less the costs of sale, applied upon said claim for contribution, so that upon May 31, 1879, there was only $284.61 due him from Applegate on that account. After making the conveyances of 1867,'J'esse Applegate had still sufficient property to discharge his- obligations to the state growing out of May's defalcations up to that time, but at the date of the sub· sequent deeds the case was otherwise. The oonveyanoes of '·1869 left him without sufficient means to pay the defalcations which had then occurred under the second bond. The. decree of the court will be that the plaintiff has a lien upon the property of Jesse Applegate tor the sum now due him on these judgments, to-wit, $7,488.48, and that the oOI\veyances aforesaid, made since 1867, except the one to Charles Putnam, are, as against the lien of the plaintiff, invalid, and so far null and void; .and that unless Jesse Applegate pay to the plaintiff the sum now due him, with his costs and expenses, within 20 days herefrom, the master of this court will proceed to sell, as upon an execution, all the interest of Jesse Applegate, on January 1, 1869, in the premIses conveyed since 1867, except that portion conveyed to Charles Putnam, and after paying the expenses of the sale to bring the remainder of the proceeds into court for distribution or application, and that the purchaser at such sale have, if necessary, due process from the oourt to put him in possession.
No authorities need be etted to the proposition that a conveyance by a parent to his child, whether upon a valuable consideration or merely in consideration of love and affection, is valid, in the absence of creditors claiming the right to a satisfaction of their debts out of the property of the parent. But if the parent be in debt and make a voluntary conveyance of his property to his child or children with a view to insolvency, or intending that the property shall be held in secret trust for hlmself, or that the conveyance shall hinder, delay, or defraud his creditors, then it is void, and will be set ll8ide by the courts. Goodell v. 'l'aylor, Wright, (Ohio,) 82; Oarlisle v. Rich, 8 N. H. 44; Pepper v. Oarty, 11 Mo. 540; Hen1'1/ ·v. Fullerton. 21 Miss. 631; Wells v. Treadwell, 28 Miss. 717; Marston v. MarBton, 54 Me. 476; Atkinson v. Phillips, 1 Md. Ch. 507; Clayton v. Brown, 17 Ga. 217; Mizell T. Lutz,54 m. 882; Miller v. Thompaon, 8 Port: (Ala.) )98; 8ardner v. Bootl.
426
,I'EDBBAL l,UJPORTER.,
i
Lutz, 34 Ill. 382;: Miller, v. Thompson, 3: ;port. .lJardrw Y. Booth, 31 Ala. 186; Benton v. Jones, 8 Conn. 186; Clayton Brown, 17 Ga. 217; Shepanj, v. Ivel'$on, 12 Ala. 97; Parish 'V.'Yurphee, IS How. 92; Jones v. Slubey, 5 Har. '& J. 372; ]{i$S8n v. Edmuhd8on, 1 Ired. (N. C.) 180: Ringgold v. Waggoner, 14 Ark. 59: Swartz v. Hazlett,8 Cal. 118: New Haven Stm. Co; v. ,Vanderbilt, 16 Conn. 420: Steward v. Rogers, 25 Iowa, 395; Brad,¥ v. BriscQB, 2.J.·].Marsh.(Ky.) 2}2: Rucker v. Abel, 8 B. Mon. (Ky.) 566: 6 La. Ann. 647: Rousseau v. Lum, 9 La. Ann. 325; Hoye v. Penn,! Bland, (Md.) 28: Worthington v. Shipley, 5 Gill, (Md.) 440; Bullett v. WortMngton, 3 Md. Cb. '99: Bryce v. Meyers, 5 Obio, 121; Croft v.Arthur, 3: Desaus; (8;' C.) 223; Chamberlayne Y. Temple, 2 Rand. (Va.) 384; Rand. (Va.) 618;' Amy v. Young, 15 N. H. 522; Seward v..Jacksfln; 8 Cow. 406: v. Stewart,JO N. Y. 189; T1ipp v. Childs, 14 Barb. 85; Pell v. Treadwell,5 Wend. Sterry v. Arden, 1 ,Tobns. Ch.261;WalleI'Y.1JIills,S Dey. Law" 515: Jessup v. Johnson, 3 Jones, (N. C.) 'Law, 335; Smithy. Reavis,7 Ired.Law,341; Morgan v.McLellanrl, 3 Dev. Law, 82;O'1Janiet v. CraW/oi'd, 4 Dey. Law, 186; Freeman v. Eastman, 3 Ired.Eq. 81; Black v.Caldwell,4 Jones, Law, 150; Winnhester v. Ha-rman,2,Jones, Eq. 179; Brown v. Godsey, 2 Jones,' Law, ,417; McKinnon v.Rogers, 3 Jones, Eq.200; Edgington v·. Willfa11&S, Wright, (Ohio,) 439: (]1'eigel' v. Welsh, l Rawle, 349; Miner v. Warner, 2 Grant.CI\S. 448; Johnston-v. Ha,rvey, 2 Pa. St. 82: Nicholas v. 'Yard,l :flead, v. ThOmas, 5 Hayw. (Tenn,) 127; Dillard v. Dillard,S Humph. 41;'Yartin v. Oliver, 9' Humph. (Tenn.) 561; Redfield v. Buck, a5 Conn. 328; McKay, 21 ;Lli. Ann.195;G1·imes v.Ruasell,45 Mo; 431·. ltwill be void,though the not directly from the (ather to the son" but irem the vendor to th!3. son, by tne 'father's direction, be paying the vllnd9.1' the purchalle for the property. Doe v. McKinney, 5 Alit. 719; Campbell:9 .Ala: 933; Elliott v.Horn, 10 Ala. 348; Ewell, Lead. Cas. 75; Goodell v. Taylor, Wright, (Obio,) 82; State Bank 0/ Indiana Y. Harrow, 26 Iowa, 426. Elliott v. supra, is an interesting case illustrative of this rule. .,. So, although the son agree to pay the father's debts. Swihart v. Shaum, 24 Ohio St. 432:. Bradyv. :BrisrJoe, (Ky.) 212, See, also, Robinson v. Stewart, 10 N. Y.189. nut. see Patteson v. Sf,ewart,6 Watts & S. 72; P1'eston v. Jones, ,50Pa. St. 54. But where.A. to. B,to be paid as a part consideration of the purchase ofa tract of land for A.'s grandson, C.,.a child of 12 years, on condition that the title be made to that child. and B. gives his note for the t:emainder of the consideration,; and the titll'l is made by the vendor to the child, who is the son of B., it will vest tlle title iJlC.; aJ;ld 1le will hold tbeland asagi:tiost a subsequent pur<lbaserat"sQeriff's,llale uJ;lder obtained on saidriote of B.Roe v. D()I, 32 Ga. 39. . . 'rhe father's deedis'VoidalthQugh made in COlllpliancewitn.a vrevious verbal promisetoconvey;tnadewhen unembarras.sed. Rucker v. Abell,S Mon. aonveyance by a widow to her children. (Ky.), 566. So, also, an just prior to her second marriage, is a fraud upon the second husband. Black
n.
v. jones, 1 A. K. Marsh. (Ky.)': .Petty v.PettY,4 B. Mon. (J{Y') 215. See;a1so, Ramse1j v. Joyce, 1 McMull. (S. Ch; 236; J)'ltrant j 2 Rich. (S. C.) Eq. 404; But it' has been held that an absolute' voluntarY'conveyance ot 'personalty by a husband to his children by a former wife is 'not a fraud on the rights of his wife which will avoid the transfer as to ()ame1'on v,' eron, 18 Miss. 394. It lleed hardly 'be stated, so well settled is the,la.w; that a voluntary conveyance is good between the parties, and the father may be compelled to de- ' Ii vel' the property which he has conveyed. Greenwood v. Goleman, 34 Ala. 150. When the property has been delivered to the child, the father cannot recover possession of it. Morris v. Har-veY,4 Ala. 300. If the thing is convej'ed to a son Who lives at home and it remains in the family, possession of it is presumed to be in the son. Humphries v. McGraw, 9 Ark. 91. Of course, if the conveyance from the parent is not voluntary, but is made upon a valuable consideration, it is good. ThUS, the marriage of the child, 1830 valuable consideration contracted in consideration of the 'whiCh will sllstain the transfer. Verplank v. Sterry, 12,Tohnll..' 536;. SteTT1/ v. 1 .Johns. Ch. 261;Wodd v. Jackson, 8 Wend. 9; Wluilan Whelan, 3 Cow. 537; Mills v. Morris, 1 Hoff. 419. But the constivaluable consideration does not apply where father makllS tutes a good a voluntary to his daughters, who father continuing In 'posse!lsion of the property after debts and dyillg insolvent, 80 as to enable the daughters to hold' the ,property v. 421. See, against creditors of thetather. alilo, {$tokes v. Jones, 18 Ala. 734.;, Services rendered by minor children to parents do not constitute a valuable consideration for a.conveyaneebythe parent to the chlIdrelliBtearna v. Gage, 79 N. Y; 102; Updike v. Titus, 13N. J. Eq,'151; King'';;. Matime,SI Grat. 158; Hack v. Stewart, 8 Plio. St. 213; Sanders Plio. St. 248; Miller v.SaTterbier, 30N. J. Eq.71; Bal't'lett 8 9rl:fftn v. First Nat. Bank;74 Ill. 2'59; .Hart v.Flinn,'136 Iowa: v. Miller, 16 Pa. St.488; Van Wyck v. Seward, 18 Wend. 375. '" " Where a son, after he had the age, of 21 for a few years to live with his father, support him, 'and to labor on his'farm as he had previously done, no express contract as to the payment qf wages by the father for the services of the son being proved to exist 'between 'them, it was held that the could not, after he had became indebted and insolvent, create a debt in favor of the son which wQuld sustain a,conveyance froJP.the father to the son. Hack v. Stewart, 8 Pa. St. . A father agreed with two sons that if' they would rema.ip QJl his farm and their brothers, lie would convey the assist in carrying it on and' in farm to them, arid in consideration of their $erVic,es agreement to support him and their mother tIle remainder of· meir livelli be 'SUbsequently executed the conveyance, and it was held void against creditors; . flraham v. Rooney, 42 Iowa, 567. See, also, Gritftn v. l!j,rat Nq,t.lJank,1d.: Ill. 259. So II. convetance of re.¥estate);>y parents tpe:a.lle,ged consideration being a cowa'nd. its, increase, to.her. by per gral},dtatl1el' many years before 'and services performed by 'her while in the family iludngtwo or three
FEDBRAL REPORTBD.
rears after attaining her majority, and without any agreement that sbe was to receive compensation, is fraudulent. Harl v. Flinn, 86 Iowa, 866. As to the decision in the principal case upon the first two points stated in the head-note, there can be no question as to its entire correctness, and the case affords an interesting and iustl'uctiv.a application of well-settled principles. '
M. D. EWELL.
Ohicago, March 2, 1888.
WYLIB t1. NORTHAMPTON NAT. BAKK.-
(Oircuil f.Jourl, 8.D. NIW York." 1888.) L NATIONAL BANX-STOLE!J FOR RECOVERY Oll'. A national b,ankcannot enter into a valid contract to underLake the,bualn_ of the recovery 'of the stolen property of special depositors. ' 2. S.HIE-LIABILITY OF ])mECTORS. The directors might be liable individually. SAME-BONDS LEFT AS' GRATIS FROM: BANK.
a.
To recOillt against a bank for bonds ;lelt with the bank' as a gratia bailment, IlOmeth'ing'iilore is needed than therriere fact that 'they were stolen from the bank. I ' , ESSEN'rrAL1'O SUPPORT ACTION.
,;
A complaint claiming that the bank recovered .1.500,000 back from the thieves, on an agreement" that· in consideration of such recovery the bank ai10'Wed to retain the property of plaintiff and other special depositors, 'states 8> valid cause of action j but here there is no proof sufficient to go to the jUrY as to this branch of this cause ,of action. I. SAME-PROOF QlI' NEGLIGENCE ,ALUG;rm. In such a,naction the plaintiff will' be held to proof of the alIegatioJ;lll made, and will' not be allowed .to rest on of ,other negligence.
The Northampton National Ba:ilkwfts robbed of the property of it· .elf and of v.arious depqsitor&, including the plaintiff, to the amount of a,bop.t $1,600,000. Five years later, all but $130,000 of the property was recovered from the thieves. Among the ·property not l'eco\'eredwere bonds to the value of $10',180 belonging to the plaintiff. The other facts 'in the statements of counsel and theopinicll1 of the court. ., '. 'w. G. Peckh(J<m and E. W; for the defendant, moved the at theciose of tQe plaintiff's evidence, to direot a verdiot for the defendant. . As to the <first cause of aotion-negligence in tbe keeping of a gNti8 mere fact that the' goods were stolen does not es· tablish negligence the American decisions, (Comp. v. Oarlisl, · Affirmed. Seo 7 Sup. Ct. Rep. 268.