Liability of indemnitor for wrongful levy.
(after stating the facts). The appellees contend that the judgment should be affirmed, without regard to whether there were errors committed against the appellants at the trial, because, as they claim, the suit instituted by the plaintiffs cannot be maintained under the law. They claim that the bond was personal to the sheriff, and that he alone can sue on it, and that he cannot sue until he has been damaged. It is also said that the statute makes no provisions for an indemnity bond in attachment cases. And it is further urged as a defense against the action of the plaintiffs that it is doubtful whether the defendants, by signing the bond, became participants in the trespass, and if they did become so, it is claimed that they could only be sued in trespass, and not on the bond.
If this suit was by the sheriff against the defendants on the bond, it would be necessary for him to show how and in what respect he had been damaged; and in such a case it might be necessary to determine whether the statute contemplates the indemnity bond mentioned, although it is questionable, even in that case, whether the defendants, having executed the bond under the circumstances, would be heard at all to contest its legality. But there is no such case here, for this is not a suit on the bond, but a suit against the defendants to recover the value of the plaintiffs’ goods, which it is claimed were taken to pay the debt of another, and for which taking it is alleged the defendants were responsible.
The contention of appellees that it is doubtful whether they became participants in the trespass by making the bond, in our opinion, is not well taken. It seems to us that that act made them the real principals in the transaction. In order to maintain the action, it is only necessary for plaintiffs to show, — First, that they owned the goods taken; second, their value; and third,, that the defendants participated in the taking, or caused the same. And the right to maintain the suit cannot be made to depend upon the existence or non-existence of any statute. It is. simply the common right that every one has to recover the value of his property, when wrongfully taken. The plaintiffs, if they owned the goods, could have sued McGuire and the sheriff and the defendants jointly, if they desired, or either of them separately. Lovejoy v. Murray, 3 Wall. 19.
The only issue in this controversy that was really contested is whether plaintiffs owned the goods levied on under the McGuire attachment. Their claim rests upon the instrument executed by Jones & Fulton, and their title depends upon its integrity.
The different instructions given at the request of both parties, that appear in the record, but are not copied in our statement of the case, seem to state fairly the different propositions of law to which they relate, and to be free from error.
As to directing a verdict.
We do not find any reversible error in the refusal of the eighteenth instruction asked by the plaintiffs, which directed a verdict for them. We see but little, if anything, in the evidence that even tends to establish fraud; but, at the same time, we do not undertake to say that there is absolutely no evidence of that kind.
When concealment not fraudulent.
The nineteenth instruction by the plaintiffs should have been given. It is not a fraud for one creditor to try to keep another from finding out about a trade that lie is seeking to make, for no other purpose than his own protection.
In regard to the twentieth instruction asked by the appellants, and refused by the court, we deem it sufficient to say that, in our opinion, its refusal was not error of which the appellants can complain.
A proper disposition of this case can be arrived at by fairly construing the acts of the parties, without stopping to discuss the legal consequences of secret motives or mere intent not acted upon or carried out.
¡t^ofpuJcíasl le^Tconvey-11"
The twenty-first instruction asked by the plaintiffs, and the ninth given by the court at the request of the defendants, both relate to the effect of the statement that Jones & Fulton claim that the representatives of the plaintiffs made in regard to their money in bank and their accounts. Without discussing either of these instructions in detail, we are of the opinion that the purchasers were under no obligation whatever to take the money in bank on their debts instead of the goods; nor did the future disposition of the money or accounts concern them. If their debts were bona fide, they had a right, under the law, to collect them either in money or property, however disastrous the consequences might be to.others. Although Jones & Fulton, at the time they sold to the plaintiffs, may have intended to defraud their other creditors by appropriating to their own use the money and accounts, and although the purchasers may have known .of this intention, their purchase could not be defeated on that account alone. Such was the decision of this court in Wood v. Keith, 60 Ark. 425. If the purchasing creditor’s debt is honest, and his only object is to secure the payment of his own debt, he is not affected by any motive or design that the debtor may have or entertain as to his other creditors. But he will not be permitted to protect himself by any fraud to which he is a party. Fraud cuts down everything-, and no claim or title can rest upon any such foundation. So, in this case, if the disposition of the money in bank, and the accounts, or either of them, came up for discussion while negotiations were pending-, the plaintiffs or their representatives migfit well have said to the vendors : “We are not concerned with that property. We care nothing- about it, and your disposition of it is not material to us.” The law would not attach any fraud to such words, or to any expressions of similar import.
Transaction held not an assig-nment.
The eleventh instruction gfiven at the request of the ° x defendants was clearly erroneous. There is nothing-in any part of the record, either in the bill of sale or in the oral evidence, disclosing- any feature of an assigmment. When the appellants accepted the bill of sale, they were bound by its terms, and were liable to every creditor whose debt was assumed, and that liability was in no manner dependent upon the disposition of the stock of g-oods.
Por the errors indicated, the cause is reversed, and remanded for a new trial.
Wood, J., being- disqualified, did not sit.