Parish et al. v. Murphree et al.

sixty-eight dollars and twenty-five cents; also another note on the 22d September, 1837, for $953.25, payable nine months after date. On all which notes judgments were obtained in the District Court, amounting to the sum of $14,667.42, at November term, 1841. Executions having been issued on the judgments, were returned no property, and the defendants are alleged to be insolvent. And the complainants pray that George Goffe may be decreed to pay the amount due them, and on failure to do so, that Williams may be decreed to pay the same, and in default thereof, that the lands and real estate or debts assigned to Mrs. Goffe and her children, may be converted into money by sale or otherwise so as to pay the sum due the complainants:

The defendants deny the allegations of the bill, and aver that at the time of the settlement the Goffes were able to pay their debts; that their assets exceeded their liabilities, and that the complainants have failed to collect their claims through their own negligence.

The statute of frauds of Alabama declares that "every gift, grant, or conveyance of lands, &c., or of goods or chattels, &c., by writing or otherwise, had, made, or contrived, of malice, fraud, covin, collusion, or guile, to the end or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts, &c., shall be from henceforth deemed and taken only as against the person or persons, his, her, or their heirs, &c., whose debts, suits, &c., by such means, shall or might be, in anywise disturbed, hindered, delayed, or defrauded, to be clearly and utterly void," &c.

This statute appears to have been copied fro:n the English statute of the 13th Elizabeth, and most of the statutes of the States, on the same subject, embrace substantially the same provisions. The various constructions which have been given to the statutes of frauds by the courts of England and of this country, would seem to have been influenced, to some extent, from an attempt to give a literal application of the words of the statute instead of its intent. No provision can be drawn so as to define minutely the circumstance under which fraud may be committed. If an individual being in debt, shall make a voluntary conveyance of his entire property, it would be a clear case of fraud; but this rule would not apply if such a conveyance be made by a person free from all embarrassments and without reference to future responsibilities. But between these extremes numberless cases arise, under facts and circumstances which must be minutely examined, to ascertain their true character. To hold that a settlement of a small amount, by an individual in independent circumstances, and which if known to the public, would not affect his credit, is fraudulent, would be a perver

Parish et al. v. Murphree et al.

sion of the statute. It did not intend thus to disturb the ordinary and safe transactions in society, made in good faith, and which, at the time, subjected creditors to no hazard. The statute designed to prohibit frauds, by protecting the rights of creditors. If the facts and circumstances show clearly a fraudulent intent, the conveyance is void against all creditors, past or future. Where a voluntary conveyance is made by an individual free from debt, with a purpose of committing a fraud on future creditors, it is void under the statute. And if a settlement be made, without any fraudulent intent, yet if the amount thus conveyed impaired the means of the grantor so as to hinder or delay his creditors, it is as to them void.

In the case before us, two of the debts, exceeding ten thousand dollars, were contracted in February, 1837, seven months before the settlement deed was executed. The other debt of nine hundred fifty three dollars and twenty five cents, was contracted the 22d of September, ten days after the settlement. The property conveyed amounted to sixty-four thousand dollars, fifty-four thousand of which were covered by the settlement.

This conveyance is attempted to be sustained on the ground that Mrs. Goffe relinquished her dower to the tract conveyed, and that George Goffe, including the partnership concerns, held an aggregate property, after the settlement, amounting to the sum of sixty-five thousand dollars; and that the debts against Goffe individually and also against the partnership, did not exceed twenty-five thousand dollars. It appears that in the Fall of 1837, and in the early part of 1838, a large amount of his paper being due, at New York, including the plaintiffs' was not paid. Suits were commenced against him, and early in 1839, his property, within the reach of process, was all sold. Goffe, it is proved, sent to Texas in 1839, by his brother, ten negroes and other property, worth about ten thousand dollars. In 1840, George Goffe went to Texas, where he afterwards died. Twentyseven judgments were rendered against him, four of which were on notes dated the 27th of February, 1837, and four on notes given in September and October foliowing, independent of the plaintiffs' judgments.

These facts are incompatible with the assumption, that Goffe's assets were more than double his liabilities. His aggregate of property must have been made of exaggerated values, and too low an estimate was made of his eastern debts. After the settlement and, as it would seem, before it was known to his eastern creditors, his purchases of merchandise were large, and his business at home was greatly extended. Several stores were established by him in partnership with his brother. After having abstracted from his means fifty-four thousand dollars, this

Parish et al. v. Murphree et al.

enlargement of his business shows a disposition to carry on a hazardous enterprise, at the risk of his creditors. In less than three years after the settlement, judgments were obtained against the partnership for between twenty-five and thirty thousand dollars; no inconsiderable part of which had been contracted and was due at the time of the settlement. These facts prove, that after the voluntary conveyance Goffe was unable to meet his engagements. Nothing can be more deceptive, than to show a state of solvency by an exhibit on paper of unsalable property, when the debts are payable in cash. Such property when sold will not, generally, bring one fifth of its estimated value. And suth seems to have been the result in the case before us.

But to avoid the settlement, insolvency need not be shown nor presumed. It is enough to know that when the settlement was made, Goffe was engaged in merchandising principally on credit; his means consisted chiefly of a broken assortment of goods, debts due for merchandise scattered over the country in small amounts, wild lands of little value, a few negroes, and a very limited amount of improved real estate, the value of which was greatly over-estimated. On such a basis, no prudent man with an honest purpose and a due regard to the rights of his creditors, could have made the settlement.

A conveyance under such circumstances, we think, would be void against creditors, at common law; and we are not aware that any sound construction of the statute has been given which 'would not avoid it. Sexton v. Wheaton et ux. 8 Wheat. 229; Hinde's Lessee v. Longworth, 11 Wheat. 199; Hutchinson et al. v. Kelley, Robinson's Rep. 123; Miller v. Thompson, 3 Porter's Rep. 196.

The decree of the District Court is reversed, and the cause is remanded to that court, with instructions to enter a decree for the complainants as prayed for in the bill.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged and decreed by this court, that the decree of the said District Court, in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said District Court, with instructions to enter a decree for the complainants, as prayed for in the bill.

Williamson et al. v. Barrett et al.

EUCLID WILLIAMSON, THOMAS F. ECKERT, AND JOHN WILLIAMSON, PLAINTIFFS IN ERROR, v. ALEXANDER B. BARRETT, ROBERT CLARK, NATHANIEL D. TERRY, HENRY LYNE, JAMES T. DONALDSON, WILLIAM BROWN, AND JOHN B. SPROWLE.

The usage upon the River Ohio is, that when the steamboats are approaching each other in opposite directions, and a collision is apprehended, the descending boat must stop her engine, ring her bell, and float; leaving the option to the ascending boat how to pass.

The descending boat was not bound to back her engines, and it was correct in the Circuit Court to refuse leaving to the jury the question whether or not, in fact, such backing of the engines would have prevented the collision, where the ascending boat was manifesting an intention to cross the river.

The proper measure of damages is a sum sufficient to raise the sunken boat, repair her and compensate the owners for the loss of her use during the time when she was being refitted.

THIS case was brought up by writ of error, from the Circuit Court of the United States, for the District of Ohio.

It was an action of trespass on the case brought by the own ers of the steamboat Major Barbour, (the defendants in error,) against the owners of the Paul Jones, another steamboat, for injuries resulting from a collision between the boats.

On the 3d of February, 1848, at a place upon the Ohio River, about one hundred miles below Louisville, the Major Barbour was descending the river, and a collision ensued between her and the Paul Jones, which was ascending; by means of which the Major Barbour became filled with water and sunk.

On the 17th of February, 1848, Barrett and others being citizens of Kentucky, brought an action of trespass on the case, against Williamson and the other owners of the Paul Jones, in the Circuit Court of the United States, for the District of Ohio.

In October, 1849, the cause came on for trial upon the general issue plea. The jury found a verdict for the plaintiffs for $6,714.29. The following is the bill of exception taken upon the trial.

"Seventh Circuit Court of the United States, Ohio District, Alexander B. Barrett, Robert Clark, Nathaniel D. Terry, Henry Lyne, James T. Donaldson, William Brown, John B. Sprowle, v. Euclid Williamson, Thomas F. Eckert, John Williamson. Be it remembered, that on the trial of this cause, evidence was given, showing that before and at the time of the collision mentioned in the pleadings in this cause, the plaintiffs' boat, the Major Barbour, was descending the Ohio River, and the defendants' boat, the Paul Jones, was ascending the same river, and heavily loaded, and the Major Barbour was light, the Paul Jones being a much larger boat than the Major Barbour.

It was claimed by the plaintiffs, and testimony offered by them, tending to show that their boat was descending the middle

Williamson et al. v. Barrett et al.

of the river, and that the collision took place at or about the middle of the river.

It was claimed on the part of the defendants, and evidence was offered to show, that their boat was ascending near the Indiana shore, and that the plaintiffs' boat was also running near that shore, and that the collision took place near that shore. The plaintiffs also offered evidence tending to show that the Paul Jones, a short time before the collision, suddenly turned out of the Indiana shore, and ran across the river into the plaintiffs' boat; and the defendants offered evidence tending to show that the plaintiffs' boat, a short time before the collision, suddenly turned out from the Indiana shore, and crossed the bow of the Paul Jones.

Evidence was also given tending to show that the engines of the plaintiffs' boat were stopped, and the boat floated for some time previous to the collision; but it was admitted that she did not back her engines; and it was claimed by the plaintiffs that she was not bound by the rules or usages of navigation to back her engines.

Evidence was also given tending to show that the Paul Jones, some time previous to the collision, stopped her engines, and then reversed her engines to back the boat, and made from one to three revolutions back, and was actually backing at the time of collision.

And it was claimed by the plaintiffs, that their boat's engines were stopped, and the boat floating as soon as danger of collilision was anticipated; and on the part of the defendants it was claimed, that the said Major Barbour's engines were not stopped sufficiently early, and that owing to that, and her not attempting to back her engines, she contributed to the collision.

The plaintiffs and defendants also offered evidence of pilots on the Ohio River, tending to show that boats navigating the Ohio River, were bound to observe the following rules in passing each other: The boat descending, in case of apprehended difficulty or collision, was bound to stop her engines, and float at a suitable distance, so as to stop her headway; and the boat ascending should do the dodging or manoeuvring. And some

of the pilots also testified, that it was also the duty of both boats to back their engines, so as to keep the boats apart when danger was apprehended, and to do all they could to prevent a collision; but the greater part of them said the rule of the river required the descending boat to stop its engines and float, being at the place of collision, near the middle of the river. And the defendants' counsel asked the court to instruct the jury that, if by backing the Barbour's engine, in addition to stopping and floating, the collision could have been avoided, and the plaintiffs did not back her engines, the plaintiffs could not recover, and that