deed where the cause of action is joint and sev- | dence of the liabilities of the defendant who eral, which, certainly, actions against partners are not." In its opinion the court referred to Sheehy v. Mandeville, and remarked that the decision in that case, however much entitled to respect from the character of the judges who composed the Supreme Court of the United States, was not of binding authority, and it was disregarded. In King v. Hoar, 13 Mess. & W., 495, the question whether a judgment recovered against one of two joint contractors was a bar to an action against the other, was presented to the Court of Exchequer and was elaborately considered. The principal authorities were reviewed, and the conclusion reached, that by the judg ment recovered the original demand had passed in rem judicatam, and could not be made the subject of another action. In the course of the argument the case of Sheehy v. Mandeville was referred to as opposed to the conclusion reached, and the court observed that it had the greatest respect for any decision of Chief Justice Marshall, but that the reasoning attributed to him in the report of that case was not satisfactory. Mr. Justice Story, in Trafton v. U. S., 3 Story, 651, refers to this case in the exchequer, and to that of Sheehy v. Mandeville, and observes that in the first case the Court of Exchequer pronounced what seemed to him a very sound and satisfactory judgment, and as to the decision in the latter case, that he had for years entertained great doubts of its propriety. The general doctrine maintained in England and the United States may be briefly stated. A judgment against one upon a joint contract of several persons, bars an action against the others, though the latter were dormant partners of the defendant in the original action, and this fact was unknown to the plaintiff when that action was commenced. When the contract is joint, and not joint and several, the entire cause of action is merged in the judgment. The joint liability of the parties not sued with those against whom the judgment is recovered, being extinguished, their entire liability is gone. They cannot be sued separately, for they have incurred no several obligation; they cannot be sued jointly with the others, because judgment has been already recovered against the latter, who would otherwise be subjected to two suits for the same cause. If, therefore, the common law rule were to govern the decision of this case, we should feel obliged, notwithstanding Sheehy v. Mandeville, to hold that the promissory note was merged in the judgment of the court of Michigan, and that the judgment would be a bar to the present action. But, by a statute of that State, the rule of the common law is changed with respect to judgments upon demands of joint debtors, when some only of the parties are served with process. The statute enacts that in actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with process," and that, "such judgment shall be conclusive evi was served with process in the suit, or who appeared therein; but against every other defendant it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence." Comp. L. of Mich., 1857, ch. 133, p. 1219. Judgments in cases of this kind against the parties not served with process, or who do not appear therein, have no binding force upon them, personally. The principle is as old as the law and is of universal justice, that no one shall be personally bound until he has had his day in court, which means until citation is issued to him, and opportunity to be heard is afforded. D'Arcy v. Ketchum, 11 How., 165. Nor is the demand against the parties not sued merged in the judgment against the party brought into court. The statute declares what the effect of the judgment against him shall be with respect to them; it shall only be evidence of the extent of the plaintiff's demand after their liability is by other evidence established, It is entirely within the power of the State to limit the operation of the judgment thus recovered. The State can as well modify the consequences of a judgment in respect to its effect as a merger and extinguishment of the original demand, as it can modify the operation of the judgment in any other particular. A similar statute exists in the State of New York, and the highest tribunals of New York and Michigan, in construing these statutes, have held, notwithstanding the special proceedings which they authorize against the parties not served to bring them afterwards before the court, if found within the State, that such parties may be sued upon the original demand. In Bonesteel v. Todd, 9 Mich., 379, an action of covenant was brought against two parties to recover rent reserved upon a lease. One of them was alone served with process, and he appeared and pleaded the general issue, and on the trial, as in the case at bar, produced the record of a judgment recovered against himself and his co-defendant under the Joint Debtor Act of New York, process in that State having been served upon his co-defendant alone. The court below held the judgment to be a bar to the action. On error to the Supreme Court of the State this ruling was held to be erroneous. After referring to decisions in New York, the court said: "No one has ever doubted the continuing liability of all parties. We cannot, therefore, regard the liability as extinguished. And, inasmuch as the new action must be based upon the original claim, while, as in the case of foreign judgments at common law, it may be of no great importance whether the action may be brought in form upon the judgment, or on the previous debt, it is certainly more in harmony with our practice to resort to the form of action appropriate to the real demand in controversy. While we do not decide an action in form on the judgment to be inadmissible, we think the action on the contract the better remedy to be pursued." In Oakley v. Aspinwall, 4 N. Y., 513, the Court of Appeals of New York had occasion to consider the effect of a judgment recovered under the Joint Debtor Act of that State upon the original demand. Mr. Justice Bronson, speaking for the court, says: "It is said that the original demand was merged in and extinguished by the judgment, and consequently, that the plaintiff must sue upon the judgment, if he sues at all. That would undoubtedly be so if both the defendants had been before the court in the original action. But the Joint Debtor Act creates an anomaly in the law. And for the purpose of giving effect to the statute, and at the same time preserving the rights of all parties, the plaintiff must be allowed to sue on the original demand. There is no diffi culty in pursuing such a course; it can work no injury to anyone, and it will avoid the absurd ity of allowing a party to sue on a pretended cause of action, which is, in truth, no cause of action at all, and then to recover on proof of a different demand." Following these authorities, and giving the judgment recovered in Michigan the same effect and operation that it would have in that State, we answer the question presented in the certificate, that the exemplification of the record of the judgment recovered against the defendant, Elisha Eldred, offered by the defendant, Anson Eldred, is not admissible in evidence in bar of and to defeat a recovery against the latter. of the Proclamation of the President, opening the Port of New Orleans to trade, and of the regulations of the Secretary of the Treasury, The only ground of suspicion that a violation of the blockade was intended, is the fact that the vessel, when captured, was out of the most direct regular course to New Orleans, and in a part of the Gulf where she would very probably have been, had her real destination been Galveston. But we think this is sufficiently accounted for by the weather and by the probability that such a vessel, really bound for New Orleans, would prefer to keep at no greater distance from the shore than the blockade would require, rather than take the more direct course across the gulf. It was stated in the argument that the cargo of the vessel would not command at New Orleans so good a price as at Vera Cruz; and this circumstance, if proved, would be entitled to great weight. But there is no evidence of that sort in the record. On the whole, therefore, we think that the decree of the District Court was correct, and shall order that it be affirmed. Objections not made in court below are waivedsale may be void as to creditors, though for full value-where deed is fraudulent as to creditors, buyer cannot be allowed purchase money—except in chancery-principle governing such cases-burden of proof-fact admitted in answer is established, though matters in avoidance of it be also set up. Objections not made in the court below are waived and cannot be taken here. A sale may be void as to creditors for bad faith, though the buyer pays the full value of the property bought. When the fact of fraud is established in a suit at law, the buyer loses the property without reference to the amount or application of what he has paid. and he can have no relief either at law or in equity. When the proceeding is in chancery, the jurisdiction exercised is more flexible and tolerant. The cardinal principle in all such cases is, that from the payment of his debts to the injury of his the property of the debtor shall not be diverted creditors by means of the fraud. Where the facts disclosed create a strong doubt and vendee, they throw on the vendee the duty of of the integrity of the transaction between vendor NOTE.-Fraudulent conveyances, what are; when void. When voluntary conveyances are valid; when void. See note to Gaylords v. Kelshaw, 68' U. S., XVII., 612. APPEAL from the District Court of the Unit ed States for the Western District of Texas. The case is stated by the court. Meesrs. George W. Paschal and George W. Paschal, Jr., for Thomas C. Moore: If the proofs be consulted they do not make such a case as overcomes the answer. The clause of the Texas Statute, which it is claimed reaches this case, is substantially copied from the Statute of the 13th Elizabeth. Pasch. Dig., art. 3876, note 906. Bryant v. Kelton, 1 Tex., 418, 428; Twyne's case, 3 Co., 80; 1 Smi. Lead. Cas., 30. The fraudulent intent must be satisfactorily proved; and, as against a sworn answer deny ing all fraudulent intention, the proof must be by two witnesses, or else by one witness and strong corroborating circumstances. Fraud will not be presumed, but must be proven. This statute has been under discussion in Texas as elsewhere; and the cases are generally cited in note 906 of Paschal's Digest already noticed. The general principles of Twyne's case, and the leading authorities upon the subject have been followed. Bryant v. Kelton, 1 Tex., 418-433; Edrington v. Rogers, 15 Tex., 188; Mosely v. Gainer, 10 Tex., 393; Mills v. Howeth, 19 Tex., 259; Humphries v. Freeman, 22 Tex., 50. But these cases, and those which they review, establish no more than that if the sale of Nicholson was with the actual intention to delay and hinder or defraud his creditors, and Moore knew it or might have known it by reasonable diligence, the sale will be void. But the facts that Nicholson had creditors, and that his means were insufficient to pay them, and that he apprehended suit and preferred to pay his home creditors, would not in themselves prove the fraudulent intention. The man in debt may sell to pay his debts, and he may prefer creditors. Baldwin v. Peet, 22 Tex., 710-724; same case, 26 Feb., 1860; Pasch. Dig., 652. In this case the complainants' witnesses prove that the intention of Nicholson was to use his goods to pay his debts. Being called upon, he settled with House for $10,000, paying part in goods, which he has the right to do. Then he sells the residue for their full value, not for cash, which he pockets, but the notes of Moore which he turns over to his creditors, and which are paid to them. These are circumstances which show that there could have been no fraudulent intention. While the complainants made every effort to prove that the sale was secret, the proof is that it was most public. Full invoices were taken and the goods were sold for full value; the possession was changed and the defendant sold what he could at retail and got the balance off at wholesale. The complainants had not then sued, nor did they for fifteen months afterward. Every conveyance of property by an insolvvent or embarrassed man to the exclusive satis faction of the claims of some of his creditors, has necessarily a tendency to defeat or hinder his other creditors in the collection of their demands. But if the sole purpose of such conveyance be the discharge of an honest debt, it does Frauds. It is not embraced within its words, not fall under the operation of the Statute of which apply only to such as are contrived of malice, fraud, collusion or covin, to the end, purpose and intent to hinder, delay and defraud creditors." These rules are sustained by Troyne's case, with American notes of cases. 1 Sm. Lead. Cas., pp. 33, 34, 35, and 48; Wright v. Linn, 16 Tex., 34; Goodrich v. Downs, 6 Hill, 438; Bryant v. Kelton, 1 Tex., 415. The specific malicious, covinous, guileful intention to hinder, delay, or defraud creditors, is always a question of fact to be ascertained upon evidence, either by the jury or the Chancellor; therefore, subjects to general rules which can hardly be said to explain the statute, as each case must depend very much upon its own peculiar facts. Linn v. Wright, 18 Tex., 317; Seward v. Jackson, 8 Cow., 406; Goodrich v. Downs, 6 Hill, 438; Baldwin v. Peet, 22 Tex., 717. Mr. Conway Robinson, for Clements & Sheldon: The transaction betwen Nicholson and Moore was contrived of fraud, with intent and purpose to delay, hinder and defraud Sheldon & Co. of their just and lawful debt, and, as against the complainants is clearly and utterly void; and the decree is right, so far as it annulled and set aside the same. Hartley, Dig., art. 1452, p. 444; Briscoe v. Bronaugh, 1 Tex., 535; Thompson v. Shannon, 9 Tex., 538; Mosely v. Gainer, 10 Tex., 393; Walcott v. Brander, 10 Tex., 424; Edrington v. Rogers, etc., 15 Tex., 188; Hancock v. Horan, 15 Tex., 507; Linn v. Wright, 18 Tex.,317; Mills v. Howeth, 19 Tex., 257; Humphries v. Freeman, 22 Tex., 45; Castro v. Illies, 22 Tex., 480; Weisiger v. Chisholm, 22 Tex., 670; Baldwin v. Peet, 22 Tex., 708; Howerton v. Holt, 23 Tex., 52; Gibson v. Hill, 23 Tex., 77; Green v. Banks, 24 Tex.,508 These cases show the construction of the Statute of Texas given by the highest judicial authority of the State, and by that construction the Supreme Court of the United States is governed. Sumner v. Hicks, 2 Black, 534 (67 U. S., XVII., 356). There having been a collusive combination to injure and defraud Sheldon & Co., Moore has no lien upon the property prior to them; he cannot claim that the transfer to him shall stand as security for money advanced by him. Wright v. Hencock, 3 Munf., 534; Sands v. Codwise, 4 Johns., 585, 598; Bean v. Smith, 2 Mason, 252; Tollison v. Miller, Harp. (S. C.) Eq., 390: Garland v. Rives, 4 Rand., 315. As to the real estate, the purchase of the lots in the name of the wife was fraudulent as against creditors. Coleman v. Cocke, 6 Rand., 641. There is no proof of any such previous agreement or previous consideration as is requisite to sustain a postnuptial settlement by the husband. Blow v. Maynard, 2 Leigh, 48; Lewis v. Caperton, 8 Gratt., 165, 166. The transaction, even as stated by Mrs. Nichol. son, was in substance and effect a post-nuptia] gift by a husband who was indebted, to insolven cy; the manifest object of the gift being to hinder | son that his object was to secure his creditors and defraud his creditors. Parish v. Murphree, 13 How., 93; Reynolds v. Lansford, 16 Tex., 293. Such is the nature and effect of the transaction, whether regard be had to the rules of the common law recognized in Owen v. Tankersley, 12 Tex., 407, and Hawkins v. Lee, 22 Tex., 544, or to the Acts of Texas of 1840 and 1848. Hartley, Dig., 734, 735, 737, 738. and that, unless the assignment was made, his entire means would be absorbed by a few of his creditors in New York, to whom he was most largely indebted, to the exclusion of his home and other debts. Moore promised to consider the subject. An assignment was subsequently drawn. Before it was executed Moore made the purchase. The terms were the cost in New York, less 20 per cent. The goods amounted to $6,310.35. Moore gave his notes, amount ing in the aggregate to that sum. At what times they were payable respectively, and whether they bore interest, does not appear in the case. The law of Texas permitted a failing debtor to prefer creditors according to his election. We find here none of the badges of fraud mentioned in Twyne's case. The rule of the case was recognized and acted upon in 1849, in Lott v. Keach, 5 Tex., 394. Subsequent to Love v. Robertson, 7 Tex., 10, the rights of creditors by judgment against the husband were sustained in Huston v. Curl, 8 Tex., 239, and Gilliard v. Chessney, 13 Tex., 337. Subsequent to Higgins v. Johnson, 20 Tex., 389, the question was considered under both the Acts of 1840 and 1848, and their rights held clear, in Portis v. Parker, 22 Tex., 702, 703. The case of De Blane v. Lynch, 23 Tex., The sale was openly made; there was an im25, ruled White v. Lynch, 26 Tex., 195. The mediate change of possession; the price agreed cases of Huston v. Curl, 8 Tex., 239, and Hig to be paid was fully as much as the goods were gins v. Johnson, 20 Tex., 389, are recognized in worth. Moore lost upon them. All the notes 1862; the court saying: “No doctrine is better given by Moore, except three, of $500 each, were settled than that property purchased during the applied in payment of Nicholson's debt. marriage, whether the conveyance be in the name of the husband or the wife, or in the joint names of both, is to be taken prima facie to belong to the community." Mitchell v. Marr, 26 Tex., 331. Mr. Justice Swayne delivered the opinion of the court: These are cross appeals, in equity, from the District Court of the United States for the Western District of Texas. The appellants, Clements and Sheldon, are judgment creditors of the defendant, James Nicholson, and filed the original and amended bills, found in the record, to set aside, upon the ground of fraud, the sale by Nicholson to the defendant, Moore, of Nicholson's entire stock of merchandise, and the conveyance by Nicholson to Moore, and by Moore to Rebecca H. Nicholson, James Nicholson's wife, of certain lots in the Town of Bastrop-described in the proceedings. The district court adjudged the sale of the merchandise to be fraudulent and void; and dismissed the bill as to Mrs. Nicholson and the lots. We are met at the threshold of the investigation by the objections that leave was not given to file the amended bills, and that there is no replication in the case. Hence it is in sisted that our examination is to be confined to the original bill and answer, and that we cannot look beyond them. We find in the record a sufficient replication, though it was not filed until after a part of the testimony had been taken. But if there were none, there are two sufficient answers to both of the objections. They were not made in the court below. They were thereby waived and cannot be taken here. They are also within the provisions of the Statute of 1789, upon the subject of jeofails. Bright. Dig., 41. The goods were sold on the 7th of July, 1851. After satisfying a debt due to House out of the stock, Nicholson determined, under the advice of Larkins, to assign the residue to Moore for the benefit of his creditors. Moore was applied to accordingly. He was told by Nichol On the other hand, Nicholson was insolvent, and Moore knew it. He knew also that it was Nicholson's purpose to hinder and delay the complainants. It was easy to convert the notes and place the proceeds beyond the reach of his creditors. The same process as to the goods was more difficult. If Nicholson intended a fraud, Moore must have known he was giving him facilities in that direction. One of the three notes mentioned was sold by Nicholson at a large discount. The other two were delivered by Mrs. Nicholson to Moore in payment for the lots in controversy. It remains to consider the law applicable to this state of facts. The Statute of the 13th Elizabeth has been substantially enacted in Texas. The same legal principles apply there in this class of cases as in the other States where similar statutory provisions exist. As was remarked by Lord Mansfield, in Cadogan v. Kennett, 2 Cowp., 432, the common law, without the statute, would have worked out the same results. A sale may be void for bad faith though the buyer pays the full value of the property bought. This is the consequence where his purpose is to aid the seller in perpetrating & fraud upon his creditors, and where he buys recklessly, with guilty knowledge. Where the fact of fraud is established in a suit at law, the buyer loses the property without reference to the amount or application of what he has paid, and he can have no relief either at law or in equity. When the proceeding is in chancery, the jurisdiction exercised is more flexible and tolerant. The equity appealed to-while it scans the transaction with the severest scrutiny looks at all the facts and, giving to each one it due weight, deals with the subject before it according to its own ideas of right and justice. In some instances it visits the buyer with the same consequences which would have followed in an action at law. In others, it allows a security to stand for the amount advanced upon it. In others, it compels the buyer to account only for the difference between the under price which he paid and the value of the property. In others, although he may have paid the full value and the property may have passed beyond the reach of the process of the court, it regards him as a trustee, and charges him accordingly. Where he has honestly applied the property to the liabilities of the seller, it may hold him excused from further responsibility. The cardinal principle in all such cases is, that the property of the debtor shall not be diverted from the payment of his debts to the injury of his creditors, by means of the fraud. Sands v. Codwise, 4 Johns., 536; Boyd v. Dunlap,1 Johns. Ch.,478; Webb v. Brown, 3 O. St., 246; Sexton v. Wheaton, 1 Am. Lead. Cas., 50, note; Twyne's case, 1 Sm. Lead. Cas., 34, notes; 3 Co., 80: Rob. Fraud. Conv., 520, 527. In the case before us, we think that Moore should be held liable for the note sold by Nicholson, and the two delivered by his wife to Moore in payment for the lots, amounting in the aggregate to $1,500, with interest from the date of the sale. We have not adverted to the letter of Nicholson of the 18th of July, 1853 and the accompanying document, nor to his declarations made after the sale. Besides being in direct conflict with his answers under oath, they are inadmissible against Moore, and can in nowise affect the conclusions as to this branch of the case at which we have arrived. The real estate in controversy is thus described: "A block of lots in the Town of Bastrop, in said State of Texas, known in the plan of said town as block No. 95 (ninety five) east of Main Street; fractional lot or block No. 4 (four), east of Main Street, and lots No. 65 (sixty-five), No. 62 (sixty-two), and 70 (seventy) in block 11.” The property was conveyed by Nicholson and wife to Moore, by deeds bearing date on the 13th of June, 1853. The considerations expressed amount, in the aggregate, to $560. The bill and amended bills charge that the deeds to Moore and the sale by Moore to Mrs. Nicholson, were without consideration and made to defraud the creditors of Nicholson. The answer of Moore alleges that he bought the lots in good faith, and paid $860 for them; afterwards he agreed they might be repurchased for what he gave, with interest at the rate of ten per cent. Except block 95 and fractional lot 4 he sold them to Mrs. Nicholson; she paid him, as he understood, out of her own separate means, and she subsequently procured a decree of the District Court of Bastrop County that he should convey a good title to her, which he was ready to do. He alleges further, that block 95 had been sold to pay a debt of Nicholson. The answer of Nicholson is the same as the answer of Moore, in regard to the sale of the lots to Moore and the subsequent agreement. In regard to the sale to Mrs. Nicholson, he states that when he married her she had a considerable amount of money belonging to her and to a child by a former husband; he borrowed from her from time to time until the amount exceeded $500; he transferred to her one of the notes of Moore for that amour, she bought the lots from Moore and paid for them with that note and other separate means belonging to her. He makes the same statement as Moore in regard to the decree of the District Court of Bastrop County, and the sale of block 95. He says the premises are in possession of his father under an arrangement with Mrs. Nicholson. Mrs. Nicholson answers that when she married Nicholson she had about $1,000 in money which she lent to him, taking in lieu two notes of Moore of $500 each; some time afterwards she delivered the notes to Moore in. discharge of a mortgage upon the premises, which Nicholson had given to him; that Nicholson has never repaid to her any part of the money which he borrowed; she has realized nothing from the loan, but the lots in question; Nicholson is utterly insolvent; she has no hope of getting any other indemnity, and that the value of the lots does not exceed the amount of the loan. She insists upon the good faith of the transaction, and denies that any wrong or fraud was intended upon the complainants or any other creditor of Nicholson. The complainants waived an answer, under oath, by this defendant. Her answer is, nevertheless, verified by an affidavit. This was proper. It was her right so to answer, and the complainants could not deprive her of it. Such is the settled rule of equity practice where there is no regulation to the contrary. Armstrong v. Scott, 3 Greene (Ia.), 433. The decree of the District Court of Bastrop County is found in the record. It was entered by the agreement of counsel. It required Moore to execute to Mrs. Nicholson a full and complete title to lots 62, 65 and 70. It is silent as to block 95, and ordered lot 4 to be sold to satisfy the claim of Scott, a defendant in that proceeding. Neither party took any testimony touching this part of the case. It stands upon the bills and answers. No attempt is made to explain the contradiction of the answers of Moore and Nicholson by the deeds as to the amount of the consideration alleged to have been paid by Moore for the lots. The answers of both are silent as to the mode of payment. This rendered disproof of the allegation of the amount difficult, if not impossible. The facts disclosed create a strong doubt of the integrity of the transaction between Moore and Nicholson, and threw on Moore the duty of making a full explanation, and the burden of proof to sustain it. Piddock v. Brown, 3 P. Wms., 289; Wharton v. May, 5 Ves., 49. We feel constrained to resolve the doubt against the validity of the sale. The striking discrepancies between the answers of Mr. and Mrs. Nicholson need no remark. She admits that she paid for the lots by delivering up to Moore, notes which he had executed to Nicholson. This makes a prima facie case against her. She adds that the notes were transferred to her by Nicholson in consideration of money she had lent to him. Of this there is no proof. It is an established rule of evidence in equity, that where an answer which is put in issue admits a fact and insists upon a distinct fact by way of avoidance, the fact admitted is established, but the fact insisted upon must be proved; otherwise the admission stands as if the fact in avoidance had not been averred. Gresl. Eq. Ev., 13: Hart v. Ten Eyck, 2 Johns. Ch., 62. The application here, of this principle, is decisive. There is nothing to neutralize the effect of the admitted fact, that the property was paid for with notes which had belonged to Nicholson. There is not the slightest proof of any con |