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The language so used was applied to the particular facts in the case then before the court, and it expresses the doctrine that if the plaintiff's possession is not continuous until actual dispossession by the defendant or those under whom he claims, the burden of proof to rebut the presumption of abandonment is placed upon the plaintiff. But, in the present case, the proof was, and there was no evidence to contradict it, that the possession of the defendant in error was continuous up to the time of her dispossession by Tronsen. Abandonment consists in the intention to abandon and the external act by which the intention is carried into effect. Stevens v. Norfolk, 42 Conn. 377; Livermore v. White, 74 Me. 452, 43 Am. Rep. 600. According to all the testimony the defendant in error was in possession up to the time when she left Nome, and she testified that she then placed Tronsen in possession as her agent. It is not shown that there was at any time when the premises were unoccupied. The evidence of abandonment upon which the plaintiff in error relied was Tronsen's testimony tliat when she left Nome the defendant in error said to him: “You can take the lot,” and that two or three weeks later he concluded to take up her offer and took possession. In brief, the whole proof of the purpose of the defendant in error to leave the property without the intention to return consists in the words which she is said to have uttered to Tronsen and the fact that she went away from Nome. It is too plain to require discussion that where a defendant in such an action as this, relies upon the words of the former possessor to show an intention to abandon, the burden of proof is upon him to prove that the words were spoken, and that in the absence of facts sufficient to shift the burden of proof, it must always rest upon him who asserts the abandonment. 1 Cyc. 7; Tayon v. Ladew, 33 Mo. 205. This is not a case such as Sabariego v. Maverick, in which the premises were left unoccupied and possession was not demanded by the former possessor for so long a period as to require proof that he did not intend to abandon. In this connection the plaintiff in error argues that the fact that the present action was not commenced until four years after the return of the plaintiff in error to Nome is in itself sufficient to show abandonment. To this there are two answers: First, that such is not the abandonment which is pleaded. The answer alleges that prior to the time when the plaintiff in error purchased the lot, the defendant in error had long since abandoned any claim she had made thereto. Second, it is shown by the evidence and it is not disputed that immediately on her return to Nome and her discovery that she had been deprived of the possession the defendant in error demanded the possession of and asserted her claim to the lot, and that she never admitted any right in the plaintiff in error. The case does not come within the rule of such cases as Whitney v. Wright, 15 Wend. (N. Y.) 172, which was approved in Sabariego v. Maverick. In Whitney v. Wright the court held that the omission by the first possessor to bring an action against the disseisor claiming a title adverse for a period of 13 years, with knowledge of the adverse entry and the continuous possession under it, would authorize a jury to find an abandonment by the prior possessor; but in that case the plaintiff was aware that his tenant had abandoned the premises and that thereafter the possession had passed into adverse hands. Without any excuse for the omission, he neglected for 13 years “to assert his right in any manner whatever.” In the present case the defendant in error asserted her right, but omitted for a period of four years to bring her action. The most that can be said of her delay in bringing her action is that it might be taken into consideration in connection with other circumstances to throw light upon her intention. Sweeney v. Reilly, 42 Cal. 402-408.
The plaintiff in error assigns as error the following instruction:
"If she left the property in 1899 under circumstances, as shown by her acts and declarations, such as evidenced no intention to retain the property, then there was abandonment; if, on the other hand, she left it under such circumstances as showed an intention to retain it, then there was no abandonment."
The objection made to this instruction is that it told the jury that the intention to abandon must have existed at the time when the defendant in error left the property, and the plaintiff in error contends that if at any time subsequent thereto up to the time of bringing the action she abandoned it, it was a good defense. But, as we have already seen, the only abandonment pleaded was an abandonment made long prior to the purchase by the plaintiff in error. The only
The only evidence tending to show such abandonment was the evidence of her leaving Nome, and of her declarations to Tronsen. There was no evidence of an intention to abandon after she returned to Nome. The court did not err therefore in conforming the instructions to the issues and to the evidence in the case.
We find no error for which the judgment should be reversed.
HARK et al. v. C. M. ALLEN CO. et al.
An original bankruptcy petition alleged the act of bankruptcy to be the removal, transfer, and concealment of its property from their designated places of business "with intent to hinder, delay and defraud creditors.” At the trial, the bankrupts admitted their insolvency and testified that they did not remove or transfer any of their stock "with intent to hinder, delay, or defraud creditors,” but that they disposed of all of their merchandise and the cash realized from the sale thereof by transferring it to certain of their creditors in payment of alleged debts due them. Held, that it was not an improper exercise of the trial court's discretion, after setting aside a verdict in favor of petitioners and granting the bankrupts a new trial, to permit petitioners to amend their petition by alleging as acts of bankruptcy that the bankrupts removed and sold their merchandise and assets and trans
ferred the same to various creditors with the intent to prefer them. 2. SAME-AMENDMENT NUNC PRO TUNC.
The original petition having been filed within four months after the making of such transfers, it was proper for the court to permit the amendments, which were not filed until after the four months had ex
pired, to be filed nunc pro tunc as of the date of the filing of the origi. nal petition. Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
For opinion below, see 142 Fed. 279.
Before DALLAS and GRAY, Circuit Judges, and CROSS, District Judge.
GRAY, Circuit Judge. The petitioners ask this court, under the provisions of section 24b of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432]) to revise in matter of law certain proceedings in bankruptcy against the petitioners, in the District Court for the Eastern District of Pennsylvania, in relation to the leave granted by said court to the petitioning creditors named in the caption hereof, to amend their original petition in involuntary bankruptcy.
This original petition represented that the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, were insolvent, and that within four months next preceding the date of the petition, had individually and as a partnership, committed an act of bankruptcy, in that between the 10th and the 15th days of October, 1904, and at other times, they had “removed, transferred and concealed a large portion of their property, consisting of pieces of woolen goods, silks, linens, etc., from their place of business at 821 Cherry Street, Philadelphia, with intent to hinder, delay and defraud their creditors.” The indebtedness of the alleged bankrupts to the petitioning creditors, is stated to be $1,356, and the value of the goods removed to be at least $10,000. The petition prayed that the said Benjamin W. and Harry A. Hark, individually and trading as Hark Brothers, should be adjudged bankrupts. It was filed on October 21, 1904. In response to the order to show cause, made by the court, the defendants appeared and filed an answer on the 9th day of November, 1904, in which they excepted to the petition as insufficient in its averments, and also, without waiving the alleged defects in the said petition, made answer, denying the allegation that, at the time mentioned in said petition, or at any other time, they had transferred or concealed any part of their property, with intent to hinder, delay or defraud their creditors. They also demanded a trial by jury, of the issues presented by creditors' petition and their answer. The exceptions to the petition were considered in the light of a demurrer by the learned judge of the court below, and were overruled March 13, 1905. On the 12th day of June, 1905, a jury trial was had on the issues raised by the petition and answer, as prayed for by the defendants, and a verdict rendered in favor of the plaintiffs, that the defendants, “individually and trading as Hark Brothers, did commit an act of bankruptcy, as set forth in plaintiffs' petition filed.”
On the 15th day of June, 1905, the defendants moved the court for a new trial, upon reasons filed. On August 10th, 1905, a new trial was granted. On August
On August 25th, 1905, the petitioning creditors filed a petition in the said court below, sitting in bankruptcy, praying “for leave to amend the creditors' petition filed in the above case, by adding the following acts of bankruptcy:
“And your petitioners further represent that the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, while insolvent, and within four months next preceding the date of filing of this petition, committed an act of bankruptcy, in that they did, between the 1st of September and the 15th of October, 1904, transfer merchandise consisting of ladies' skirts, etc., amounting to $1,500, to Sax Brothers of the city of Philadelphia, creditors of the said alleged bankrupts, with intent to prefer the said Sax Brothers over the other creditors of the said alleged bankrupts.
"That the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, while insolvent, and within four months next preceding the date of the filing of this petition, committed an act of bankruptcy, in that they did, between the 1st and 15th day of October, 1904, transfer the sum of $250 in cash to Jennie Hark of Philadelphia, one of their creditors, with intent to prefer the said Jennie Hark over their other creditors.
"That the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, while insolvent, and within four months next preceding the date of the filing of this petition, committed an act of bankruptcy, in that they did, between the 1st and 15th day of October, transfer the sum of $300.00 in cash to Mr. Lebowitz, of Philadelphia, one of their creditors, with intent to prefer the said Mr. Lebowitz over their other creditors.
"That the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, while insolvent, and within four months next preceding the date of the filing of this petition, committed an act of bankruptcy in that they transferred to Miller & Pleet, of Philadelphia, creditors of the said alleged bankrupts, the sum of $49.43 in cash, on September 21, 1904; the sum of $200 in cash, on September 29, 1904; the sum of $57.10 in cash on October 1, 1904; the sum of $49.70 on October 4, 1904; the sum of $26.54, on October 7, 1904, and the further sum of $650 between the 1st and 15th of October, 1904, with intent to prefer the said Miller & Pleet over the other creditors of the said alleged bankrupts.
“That the said Benjamin W. Hark and Harry A. Hark, individually and trading as Hark Brothers, while insolvent, and within four months next preceding the date of the filing of this petition, committed an act of bankruptcy, in that they did, between the 1st of August and the 15th of October, 1904, transfer the sum of $1263.77 in cash to Harry Miller, of Philadelphia, one of their creditors, or to the Girard National Bank, or to both, with intent to prefer the said Girard National Bank or the said Harry Miller, or both, over the other creditors of the said alleged bankrupts.”
The petitioners further pray for leave to amend their petition, “by adding after the words, in the allegation of the act of bankruptcy, 'between the 10th day of October, A. D. 1904, and the 15th day of October, 1904, and at other times, the words, 'to wit, between the 1st day of September, 1904, and the 10th day of October, 1904'; your petitioners being informed and believe that the words, and at other times,' in the original petition are too indefinite."
On December 27th, 1905, these amendments were allowed by the court. To this order allowing the said amendments, the defendants excepted, and in their petition, ask this court to revise in matter of law the proceedings aforesaid in the district court, and to dismiss
the said petition of the petitioning creditors, for leave to amend the original petition in involuntary bankruptcy in this case.
The contention of the petitioners is, that by the amendments, the petitioning creditors were allowed to allege a new cause of bankruptcy against the defendants, and that the amendments were filed more than four months after said alleged acts of bankruptcy.
A liberal policy in regard to the allowance of amendments to pleadings, both at common law and in equity, is to be encouraged, where the amendments proposed tend to prevent a failure of justice through technicalities, and where their allowance does not affect injuriously any just right of the opposite party. Statute law has recognized the wisdom of this policy, both in this country and in England, by enlarging the discretion of the courts in that regard, and the trend of judicial opinion has stamped it as an enlightened policy, tending to promote the ends of justice.
We do not think the learned judge of the court below in this case transgressed the legitimate bounds which limit his discretion in such cases. The original petition stated the act of bankruptcy to be the removal, transfer and concealment of the defendants' property from their designated place of business in Philadelphia, with intent to hinder, delay and defraud their creditors. In asking for leave to amend their petition after the verdict in their favor had been set aside by the court, the petitioning creditors state that the original allegation was founded upon the only information then procurable, as to the alleged acts of bankruptcy. This information was, that on the 15th day of October, 1904, the place of business of the alleged bankrupts, was found closed and their entire stock in trade gone; that a few days previous to the date last mentioned, divers persons had seen large quantities of merchandise at said place of business, and that divers other persons had witnessed the removal thereof under suspicious circumstances; that they were informed that this merchandise was not disposed of in the regular course of business, but was transferred or concealed for the purpose of defrauding creditors. Upon this information, not unreasonably, the petitioning creditors allege such a transfer and concealment as an act of bankruptcy. At the trial before the jury, they allege that the defendants themselves testified that they neither removed nor transferred any of their stock "with intent to hinder, delay or defraud their creditors,” but that they disposed of all their merchandise, and the cash realized from the sale thereof, by transferring the same to certain of their creditors, in payment of alleged debts due said creditors; that the alleged bankrupts admitted their insolvency at the trial, and also admitted an act of bankruptcy, though different from the one alleged in the creditors' petition.
Such being the testimony, the trial judge was clearly justified in setting aside the verdict against the defendants, as the act of bankruptcy alleged was not proven. That all the goods were removed from defendants' place of business, as alleged in the petition, was not denied, but it was denied that they were removed or concealed with the particular intent charged in the petition. It was, however, admitted that