By the Court
The statement of the case as given in the brief of the Plaintiff in Error, is sufficient for a proper understanding of the points decided, and is as follows, viz:
Colbath, the Defendant in Error, brought trespass de bonis against the Plaintiff in Error, for taking certain goods of the said Colbath in the town of Anoka.
The Plaintiff in Error plead three separate pleas :
1st, A general denial.
2d, A plea that he took under a writ of attachment out of the United States Court, and as United States Marshal; and,
3d, A plea like the second, but in addition setting up the debt and judgment following, necessary to raise the question of fraud, (as claimed by Plaintiff in Error.)
The case was brought on for trial before a jury, and the
The same question raised by this motion was also raised by the charge of the Court, and exceptions thereto.
The Defendant also asked the Court to charge that under the pleadings, it was incumbent on the Plaintiff below to show a valuable consideration for the sale (to him) which the Court refused, and Defendant excepted.
The jury found for the Plaintiff below, the Court denied a motion for a new trial, judgment was perfected, and a writ of error sued out.
■‘•There was no error in the refusal to dismiss the complaint. The pleading states a good cause of action against the Defendant. The facts stated in the complaint show a “wrongful” taking, although the pleader has not used that word to characterize the act of Defendant. The decisions which are cited by Plaintiff in En-or, were based upon special statutes controlling the action of replevin; but whatever might have been the rule previous to the adoption of the Code, there can now scarcely be a question, as to the necessity oí such an allegation. It is not an allegation of fact, but a conclusion of law arising from the facts stated.
The second objection urged by the Plaintiff in Error, is that the Court erred in refusing to charge that Defendant in Error must show a sale for a valuable consideration. "We presume this request to charge was based upon the ground or assumption that a sale by a debtor is to be deemed fraudulent as against his creditors, unless a valuable consideration be shown. Whether this proposition be true or not, it is unnecessary here to inquire, as the facts presented by the case are not such as to justify the charge. It does not appear by the pleadings or' evidence, that the Plaintiffs at whose instance the writ of attachment was issued, under which Defendant seeks to justify, were creditors of the grantors named in the bill of sale, at the time of such sale. "With regard to this bill of sale, the case only shows that the Plaintiff read in evi
The counsel for the Plaintiff also requested the Court to charge, “that it being admitted by the pleadings that the Defendant took the goods as United States Marshal for the District of Minnesota by virtue of process issuing out of the United States District Court, for the District of Minnesota, the right of property in the goods cannot be tried in this Court, and there must be a verdict for the Defendant.” The Court refused so to charge and Defendant excepted.
In the case of Lewis vs. Buck, (ante, p. 104,) which was an action of replevin, decided at the present term, we had occasion to examine a plea substantially the same as is here interposed and held that it constituted a good defence in that case. That case was decided upon the authority of Freeman vs. Howe, 24 How., 450, and upon the ground that the United States Supreme Court had in the case last cited, directly decided the point presented in Lewis vs. Buck. The gist of the action in Freeman vs. Howe, was the question of right to the immediate possession of the property, and the Court held, that the Marshal having first seized it under his writ, he should retain it until the right of property was determined in that Court, and that a plea setting forth the facts should, if admitted, constitute a conclusive defence; And this, not because the State Court had not jurisdiction of the action, or person, but rather from the necessity of the case, arising from the peculiar relations of the State and Federal Courts, to avoid an unseemly conflict of authority with regard to the property itself,
Entertaining these views of the case, it is unnecessary to examine at length the positions of the Plaintiff in Error as to trespass and replevin being concurrent remedies, and the applicability of the case of Freeman vs. Howe to the one at bar.
The judgment of the Court below must be affirmed.