Keen and Others v. Preston and Others. Hawkins, and indeed they returned a portion thereof to him. They were his largest creditors; he owed them more than all others. The defendants contended below that the transaction between Hawkins and the plaintiffs was an assignment for the benefit of creditors, and, therefore, void under the act concerning voluntary assignments, (1 G. & H. 114,) and the court refused several instructions to the jury, asked by the plaintiffs, laying down the law to be that if any surplus was to be returned to Hawkins, or applied on his other debts, that fact would not make void, under that act, what was otherwise an absolute sale. This was error. We had occasion to consider one aspect of this question in Wilcoxon v. Annesley, 23 Ind. 285. But in the case now before us, there was not sufficient evidence that Hawkins was in embarrassed or failing circumstances; and without that element in the case, the act concerning voluntary assignments could have no application to it whatever. Other instructions given assume the law to be the exact contrary of what was thus asked by the plaintiffs. That they were erroneous is so clear that the appellees do not attempt to sustain them in argument here. Whether the sale of the personal property and the transfer of the collaterals were parts of the same transaction, or separate transactions, was, if a question at all, for the jury to decide upon the evidence. The court, however, took that question from the jury, by instructions which assumed that the whole constituted one transaction, and thus mingling them, assumed the law to be that if either was void, the whole was void. This was also error. The two things, even if both were done in execution of one agreement, were nevertheless separable, and a fraudulent transfer of the collaterals could not contaminate a bona fide sale of personal property; and whether such sale was an honest transaction was a question for the jury, which the court also improperly withdrew from their consideration. The evidence was of such a character that this question arose upon it, inasmuch as there was some Keen and Others v. Preston and Others. evidence tending to show that the whole arrangement was designed by both parties to delay other creditors. The following instruction, asked by the plaintiffs, was refused: "If the jury believe, from the testimony, that the staves in controversy were purchased by the defendants at sheriff's sale, after only nine days' notice of said sale had been given by the sheriff, then they are chargeable with notice of such fact, and such sale could confer no title on the defendants." Surely this ought to have been given. The purchasers were plaintiffs in the execution, and chargeable with notice of the irregularity. This is a familiar doctrine of the law, and it was applicable to the case as made by the evidence. Of the whole quantity of staves included in the bill of sale, only those in controversy had ever been delivered by Hawkins to the plaintiffs. We suppose it to be very clear that a failure to deliver a part could, alone, constitute no sufficient legal objection to the plaintiff's title to those which had been delivered. But as we understand the third instruction given to the jury at the request of the defendants, it means that if forty thousand staves were not delivered by Hawkins to the plaintiffs, then those in controversy, though as to them no act remained to be done by either party to put the plaintiffs in possession of them, would not, in law, be deemed delivered, and were, therefore, the property of Hawkins. We think that this did not express the law. Moffatt v. Green, 9 Ind. 198. The appellees insist that the verdict and judgment below were so clearly right upon the evidence, that there ought to be an affirmance, notwithstanding the errors already mentioned. This is the second time this case has appeared here, (18 Ind. 67,) and as the amount in controversy is not large, we should be reluctant to protract the litigation. We have accordingly examined the evidence with care, and, without embarrassing either party by expressing any opinion as to its preponderance, we perceive that it is not of a character to justify an affirmance as urged. It is Teagarden . Garver and Another. contradictory upon vital points, and necessarily involves the veracity of witnesses in its determination. The judgment is reversed, with costs, and the cause remanded for a new trial. C. Baker and C. E. Marsh, for appellants. TEAGARDEN v. GARVER and Another. APPEAL.-REVENUE STAMPS.-A motion was made in the Court of Common Pleas to dismiss an appeal from a justice of the peace, because neither the certificate of the justice, nor the appeal bond, was stamped with the appropriate revenue stamp. Leave was granted to attach the stamps, the justice canceling the stamp upon his certificate, and one of the obligors that upon the bond. The motion to dismiss the appeal was afterward sustained. Held, that if the want of proper stamps rendered the certificate and bond insufficient, the appellant had a right, under the statute, to have the certificate amended, and to file a sufficient bond. Held, also, that as the alleged defect in the certificate and bond was cured by attaching the proper stamps, it was error to dismiss the appeal. Held, also, that while the statute requires, in such case, that a bond shall be filed "to the acceptance of the court," it is error to refuse a bond, if there is no valid objection to it. Held, also, that the cancellation by one of the obligors of the stamp attached to the bond was sufficient. APPEAL from the Fountain Common Pleas. ELLIOTT, C. J.-Suit before a justice of the peace. The appellant appealed to the Court of Common Pleas, and filed an appeal bond in due time, which the justice approved. In the Common Pleas, the appellees moved to dismiss the appeal, because neither the appeal bond nor the justice's certificate to the transcript was stamped with a United States revenue stamp. By permission of the court, proper stamps were attached to the appeal bond and justice's cer Teagarden v. Garver and Another. tificate, and were canceled, the one by the appellant, and the other by the justice of the peace. But the court afterward, over the defendant's objection, dismissed the appeal. This, we think, was an error. We do not now determine whether, under the act of Congress, stamps were required to these papers, nor the still more important question as to the power of Congress to declare void the writs, &c., pertaining to suits brought in the courts of this state, for the want of such stamps. The latter question is now pending in this court in several cases in which its decision may be necessary. A proper disposition of this case, however, does not require that we should pass upon either. The statute regulating appeals from justices of the peace requires the justice, on the filing of a proper appeal bond, to make out and certify a complete transcript of all the proceedings had before him, and transmit the same to the proper court, &c., and provides that no such appeal shall be dismissed for a failure of the justice to transmit a proper transcript within the time required by the statute, "nor for the insufficiency of the bond, if the appellant will file a sufficient bond to the acceptance of the court" to which the cause is appealed. It was the duty of the justice to certify up a proper transcript, and if his certificate was insufficient for any cause, it was the right of the appellant to have it amended. The objection to it was the want of a stamp, and the justice amended it by affixing the stamp and canceling it, and if the want of a stamp rendered it defective, the defect was cured by attaching it. And so with the appeal bond. It was a bond; the justice had approved it as such, and granted the appeal. If the want of a stamp rendered it void, then it was not a sufficient bond; but the appellant had the right to file a sufficient one, which he did by attaching the stamp to the old one, and making it sufficient. True, the statute requires that it must be to the acceptance of the court, but if no valid objection existed to it when stamped, and Strawser v. Miller. - Hamlin v. Hanger. the stamp canceled, it was error in the court to refuse to accept it, and dismiss the appeal. The appeal bond was executed by two obligors, and the stamp was attached and canceled by only one of them, which, we think, was sufficient. The object of the act of Congress is to raise revenue, and the stamps are required to be canceled to prevent their use a second time. This was fully accomplished by one of the obligors canceling it, as required by the act of Congress. The judgment below is reversed, and the cause remanded for further proceedings in accordance with this opinion. Tipton and Davidson, for appellant. STRAWSER V. MILLER. APPEAL from the Fountain Common Pleas. GREGORY, J.-This case involves the same questions ruled upon by this court in the case of Teagarden v. Garver et al., ante, p. 399, and, for the reasons stated in that case, the judgment of the court below must be reversed. The judgment is reversed, with costs, and the cause remanded to said court, with directions to overrule the motion to dismiss the appeal, and for further proceedings. Tipton and Davidson, for appellant. Milford and Milford, for appellee. HAMLIN V. HANGER. APPEAL from the Marion Common Pleas. GREGORY, J.-This case was commenced before a justice of the peace, and appealed to the Court of Common Pleas, VOL. XXIV.-26. |