New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-03-21

TO test the validity Of Il transfer Of property
10y him.
Insolvency does not mean an absolute in
ability to paw ones debts at a future time
upon a settlement and winding up OF all .
traders concerns but trader may be said
to be III insolvcnt circumstances when he is
not in IA condition to pay his debts III the
ordinary course of business. as persons ear
ryiDg on trade usually.
The bankrupt act In, established a rule
of evidence to which it is necessary tor You
to apply. III order 10 enable You to pass upon
this branch of the case 1t is this: Hu"te
the language of tn" law: eff such sale as
signmcnt transfer OF conveyance Nre'tr,ins
to IA conveyance by an n.ulvent 10 uei''.
the provisions of the bankrupt ac') Is no.
made in the USUAL course ana or"i'.iit
course of business of the debtor me TACT
shall be priua facie evidence VI lrau": ,
Under this provision of tins statute IL the
plaintiff has satisfied You 'h;ii ,H' I'iI VA
the goods in question was maze ny hocN"
| ,lay ont of the usual and ordinary course Oh
his business. then the law prrsuines that
| the purchasers of the goods had reasonanlt
c,usc to believe that Hockaday was IN
solvent. and was attempting 10 evade the
b,ukrupt law and declares the sale to be
fraudulent and therefore void. This pre-
sumption NAV, however. be rcbutted by proof
that the purchasers did not have reasona-
bic cause to believe that the seller was in
solvent. and acting in fraud of the bankrupt
law But if the plaintiff has shown that the
sale was not made out of the usual course
of business of the seller the burden OF proof
is on the purchaser to establish the bona
tidcS of the sale.
In order to ascertain whether the sale WAS.
in fact, made out of The usual and ordinary
course of the business of the seller. You will
look into the evidence, and bring t" Your
aid the results OF Your own observation
and experience a. men OF business ana
affairs. Inquire whether or not ne
sale made. by iiocl>aday WAS III the
usual and ordinary course OF business %
men engaged in the same line OF business
us the seller Ii il was not the buyers are
charged with notice OF all the facts nece>-
sarv to establish fraudulent sale. and the
law declares the sale fraudulent unless the
buyer on the other hand has established by
proof his want of knowledge or notice OF the
condition and purposes of the seller.
If ihe plaintiff should have tailed. III your
Judgment. in proving that the sale was
n.adc out of the usual and ordinary course
of business of the seller, you WILL never
theless. inquire whether BY other proof he
has established that the sale was made to
purchasers who had reasonable cause 10
believe that the seller was insolvent, and
acting to defeat the bankrupt act. For a
man may in the usual and ordinary course OF
his business make II fraudulent sale. and
if the purchaser has reasonable cause TO
believe tue sale to be fraudulent. it would
be void although made III such usual and
ordinary course of business.
You will scrutinize all the facts regarding
| the sale in order to reach Il true decision.
If YOU shall find that the property was sold
at IA price greatly below its real value,
that would be circumstance proper for
| YOU to consider, III reaching conclusion
upon this point. Mere inadeluacy OF con
| sideration unless extremely gross, does not
| prove fraud; but great lnadeIuacy Is a
circumstance which YOU should look to rs
throwing light upon this branch OF the con
! troVcrSN.
You are the sole Judges of the credibility
| of the witnesses. and the weight of teSti-
mony. controlled. however. by the rules OF
evidence. Among these rules are
! |. That party Is not allowed to I'M
peach his own witness. When one OF
the parties to IN action puts a witness upon
the stand, that amounts to an admission
! that the witness, in respect TO his character
| for truth and yeracity, is entitled to be be
| lieved. and the party 80 producing the Wit
| ness cannot mpeach that character He Is
not. however. bound BY all the facts which
/ that witness teStiie> to, but he may. II he
can. disproyc such facts by other evidence.
=. w men "a NIlntSS IL II parry VI III
! tercst..d in the result OF the suit. the law
| SAYS that you may take that fact into con
| sderation in determining what weight
| YOU will give to his testimony.
! II is IL result of human ex-
| pcrence that m"n are often inf1u-
enced in giving testimony by their interest
and feelings. and i; is your province to say
how far they are 80 Influenced, and to
decide how far they are entitled to belief.
| 3. These remarks apply to the case OF a
| witness who te,tities under the restraint
! imposed by fear of a CRIMINAL prosecution
| or any other Stron. motive.
| In a word, where VI tne>seS are Interested
| in the result OF the suit, or their testimony
| is given under any temptation to devlate
! from the truth, it is your duty TO scrutlnize
! this evidence with most anxiou, care. so as
to determine what weight 1t Is fairly and
! Justly entitled to.
| Guided by these principles you will exam
! Inc the testimony and cndeavor to reach a
! true verdict upon the issues presented to
| yor.
II You find that Holman. Marks & Co. were
not parties to the purchase of the goods from
| Hocl.aday, and were not Interested directly
| oi in !irectly therein YOU will return a YER
diet in their favor. even though you may
| find on the other issue against Leon Levy,
and feel it your duty to return a verdict
| against him.
Having determined who were in fact the
purchasers OF the goods. you will then con
| slider whether under the rules OF evidence l
| have laid down such purchasers had. at the
| .mc of sale reasonable cause to believe
| the seller insolvent or contemplating InSol-
vcucy. and that his purpose in making the
sale was to evadc or defeat til" provisions
OF the bankrupt Jaw.
If you find the Affirmative of this issue,
l,.n .1,nS
or purchasers. you lind Hoffman. Marks
Il Co. to have .cen purchasers in the sense
| have explained to you, your verdict will
| be- against all the defendants, otherwise
against Leon Levy alone.
| Ii YOU find the ne 5atvc OF this issue, your
verdict will be generally tor the dcten
| dants.
A few words as to the amount OF your
verdict III case yot tind for the plaintiff
Your verdict should he for the reasonable
yaiue of the goods in this market. with i'll
| tcrcst from the date of sale, subject to sucl
! deductions as YOU may determine ought to
| be made under the instruction., l am about
| to give you.
! Ii the goods were enhanced III value by
| transportation to this market by an amount
! equal to or greater than the cost OF trans
portation. then Won will deduct from the es
timated value OF the goods IN this market
the amount of sucn cost, provided you are
satisfied such cost was paid by the defend
ant.
| If You are satisfied from the proof tina,
the identical proceeds of these goods have
gone into the hand, OF the assignee Ill bank
ruptcy of Hockaday for distribution under
the bankrupt act, then you will deduct the
amount 50 paid to him from the value OF
| the goods as YOU shall estimate 1t.
If Won shall tnd that these deductions
| oIoht ia lac made and after making them