Montieth v. Bax.

by Adam to his wife was fraudulent as to his creditors, Leonard and Schmidt. And the question now presented for consideration is, should the court below have submitted the question of fraud to the jury, as one of fact to be by them determined from all the evidence and circumstances of the case?

In answering this question it may first be observed, as is said in Nolan's Appeal, 23 Penn. State, 38-9, that although "the possession and use by a husband of his wife's money is very strong evidence of the conversion. of it to his own use, and with intent that her right to it shall be divested, yet, this presumption may be repelled by sufficient proof of a different intention. It may be shown by parol proof, that the husband has the use of the wife's money for a limited or special purpose and with intent to hold it in trust for her, but the evidence of such intent and purpose must be clear and unquestionable." This, undoubtedly, is the correct rule under the statutory provisions which exempt the separate property of the wife from liability for debts of her husband; and, according to this rule, it will hardly be questioned, under clear and unquestionable proofs of a bona fide transaction by which the husband has the use of the wife's money in trust for her, that she may become his creditor, and be entitled to the rights of any other creditor of the husband.

It may, en passim, be observed, that the general act relating to the rights of married women, took effect subsequent to the time of the transaction between Adam Bax and his wife, and it is not therefore necessary to now express any opinion as to the proper construction of this latter act.

Now under the above rule, requiring proof to repel the presumption of the conversion of the wife's money by the husband to his own use, with intent to divest her right to it, it seems that the determination of such ques

Monteith v. Bax.

tion must necessarily become one of fact, which in actions at law, are to be tried by a jury; but when, as in this case, the question raised is one of fraudulent conveyance of property by the husband to his wife to hinder, delay, and defraud his creditors, it seems clear, both upon principle and authority, that the fraudulent intent is a question of fact which must be submitted to a jury, to be tried by them upon the proofs.

It is said that fraud implies a fraudulent intent, and that intent or intention is an emotion or operation of the mind, and can usually be shown only by acts or declarations; a man is presumed to intend the consequences resulting from his own acts; hence, the fraudulent intent is the inference or conclusion of fact drawn from the facts or circumstances of the transaction, and if it is a presumption, it is a presumption of fact and not of law. 1 Greenleaf Ev., Sec. 44, 48. Certainly it is the province of the jury, who are to try the facts, to find the actual intent, and this doctrine is in perfect accord with our statute of frauds which declares that the question of fraudulent intent shall be deemed a question of fact, and not of law. General Statutes, 395. And in Oliver v. Eaton, 7 Mich., 113, in respect to the statute it is said, that "it certainly does not strike one as an obvious conclusion from this language, that the fraudulent intent to be derived from any given or found state of facts, was intended to be made an inference of law. The question of intent, and not merely the facts from which it may be inferred, is declared to be a question for the jury. The statute must have some meaning, and it was undoubtedly introduced to create or settle a rule of law." Smith v. Acker, 23 Wend., 657-8. But when the instrument, on its face, is one the law will not sanction against creditors, it is the duty of the court to pronounce fraudulent as to them, but the court

Monteith v. Bax.

cannot look at matters dehors the instrument for that purpose." Bagg v. Jerome, 7 Mich., 157-8. Cunningham v. Freeborn, 11 Wend., 261. So, it is said, that when the existence of the fraudulent intent is a question of fact, it must, in actions at law, be expressly found by the jury, for the court cannot infer it. Allen v. Wheeler, 4 Gray, 123. Ewing v. Gray, 11 Ind., 64. Maples v. Burnside, 22 Ind., 139. Banfield v. Whipple, 14 Allen, 13. Green v. Tanner, 8 Met., 411. Bagg v. Jerome, 7 Mich., 145.

In Babcock v. Eckler, 24 New York, 628, it is held that to make a deed voluntary, "it must be without any the least valuable consideration," and, that "when a conveyance of land is upon any the least valuable consideration, the question whether it be fraudulent as to creditors belongs exclusively to the jury, as a question of fact;" and, where the debtor had conveyed property to a creditor, it was held, that "the defendant clearly had a right to show upon the question of fraud, that the value of the goods mortgaged to plaintiffs was disproportioned to the amount of their debt. It might tend, with other circumstances, to show an intention to hinder and embarrass the creditors by covering up his property." Ford v. Williams, 13 New York, 583. And in Seward v. Jackson, 8 Cow., 433, Spencer says, that "where there was some valuable consideration, whether sufficient or not, whether the whole was not to avoid the payment of creditors, are distinct questions depending upon a variety of facts and circumstances, and which it is considered on all hands, must be decided by a jury."

We think, that under the evidence and all the circumstances of this case, the question of fraud should have been submitted to the jury as a question of fact, to be determined by them, and therefore the judgment of the

Martin v. Coppock.

court below should be reversed and cause remanded for

a trial de novo.

REVERSED AND REMANDED.

MR. JUSTICE MAXWELL, concurred. CHIEF JUSTICE LAKE, having tried the cause below, did not sit.

O. J. MARTIN, PLAINTIFF IN ERROR, V. ISAIAH COPPOCK,

DEFENDANT IN ERROR.

1. Practice: AUTHENTICATION OF DEPOSITIONS. Depositions taken in Illinois by a notary public, certified to under his hand and official seal, may be read in evidence here without further authentication.

2.

-: AMENDMENT OF SUMMONS. The amendment of a summons, made after notice to the defendant by the correction of a mistake in the name of the plaintiff, relates back to the time of service.

ERROR to the district court for Lancaster county. The opinion states the case.

Philpot & Cantlon, for plaintiff in error.

I. THE issuance of the summons in this case was not the issuance of a summons in the case of Isaiah Coppock against O. J. Martin. Gen'l Stat., Sec. 64, 533. The summons did not give the name of Isaiah Coppock either in the body of it nor in the indorsements thereon, the name Isaiah being omitted, and the name Isaac being used. A person cannot have two christain names at one and the same time. Bacon's Abr., vol. 7, p. 7 (B.), 1. Coke Litt., 3. 2 Roll. Abr., 135. Isaiah and Isaac cannot be taken to be the same name,. for there is a substantial variance in sound, original, and common

Martin v. Coppock.

use. 7 Bac., Abr., 5, 6. Robinson v. Neal, 5 Monroe, 213.

II. The service of said summons on Martin is not service by virtue of which Isaiah Coppock was authorized to commence the taking of testimony in his said action, under Sec. 373 of the code.

III. At the time of the taking of depositions by notaries in this case, they were not authorized by the statutes of the state of Illinois to have an official seal. Statutes of Illinois, Chap. 75. An Act to provide for the appointment, etc., of notaries public, Approved April 5, 1872, Sec. 7. Therefore having no seal, depositions taken by them must be further authenticated, before they can be read in evidence here.

Lamb & Billingsley, for defendant in error.

I. The depositions could be taken before a notary public, out of the state, by the express terms of our statute, without any regard to the particular authority conferred on notaries by the laws of Illinois. Civil Code, Sec. 375.

II. When a statute authorizes an act to be performed in another state, by an officer of that state, deriving his authority under its laws, our courts will take judicial notice of the laws of that state in passing upon the validity of his acts, without further proof. Vance v. Schuyler, 1 Gilman, 163. Secrist v. Green, 3 Wallace, 744. Carpenter v. Dexter, 8 Id., 513. His own authentication is sufficient unless a contrary rule is prescribed by statute, and this by force of our own statute. City Bank v. Lumley, 28 How. Prac., 397. Earl v. Hurd, 5 Blackf., 248.