
    GEORGE W. WELD and FANNIE E. WELD, Respondents, v. BERNARD REILLY, Sheriff, Etc., Appellant.
    I. Fraudulent transfer.
    1. Husband and wife.—Voluntary gift by former to latter.
    
    
      (а) Intent to protect as against future creditors.—Effect OF.
    A husband made a voluntary transfer of certain books to his wife. In an action in which the validity of that transfer was attacked, the defendant, on behalf of a subsequent creditor of the husband, the husband testified that at the time of the transfer he was not in any pecuniary difficulties, that he made it on the general principle that it is a proper thing to do, because we never know what the distant future may bring on; that because a man takes such a step it does not show that he is in any immediate peril; that it is a common thing, when people get married; that he made the assignment on general principles, as a matter of precaution against the possibility of incurring further debts, and the property being swept away to pay them. He did not testify that at the time of making the assignment he had an intention of incurring debts.
    
      Held,
    
    that this evidence was not such as to necessarily and absolutely compel a jury to find that the assignment was fraudulent, and that a request to direct a verdict to that effect was properly denied—the court saying: “If he (the husband) was not insolvent, if his present indebtedness was sufficiently provided for before future indebtedness was incurred, or other like conditions existed, his transfer or his intent to exclude his future creditors would not have been fraudulent.”
    (б) Insolvency at Ume of gift. —Request to direct a verdict for defendant on this ground properly denied.
    
    The husband on his direct examination testified that at the time of his assignment, his assets were $175,000, and his debts, about $150,000. On cross-examination he testified that the $175,000 included $20,000 which he admitted were bad debts and had never been collected; $16,000 on a certain stock on which he admitted there was a loss of $7,000. And another item of stock which he admitted was a total loss, wiping out his entire margin. It did not appear how much of the bad debts of $20,000 had accrued at the time of the transfer, nor did it appear that the losses on the stock had been made at that time.
    
      Reid,
    
    that the matters drawn out on cross-examination did not neutralize the direct testimony as to the difference in favor of the assets so certainly that the matter could have been taken from the jury.
    
      (e) Oharge—construction of.
    
    The court had, at defendant’s request, charged, “That if the evidence showed that when the transfer from the husband to the wife was made he was indebted in a sum exceeding the value of the books so transferred, and if such debts remain unpaid to this day, such transfers are fraudulent and void against creditors existing at that time who are still unpaid, and equally void against future creditors, including the judgment creditor in this case.” The court then proceeded to charge, “ The mere fact that a debt then existing remains still unpaid, is not sufficient of itself. If the jury find that he was actually insolvent at that time, then the transfer was void. ” To this latter charge defendant excepted.
    
      Held,
    
    that the debt referred to in the latter charge was not the same kind of debt referred to in the request which had been previously charged; but it was to a debt not to an amount greater than the value of the books. So holding, held the exception not well taken; holding as to the effect of a (d) Debt less than the value of the property transferred, this language:
    
    “ Of such a debt, which was of less value, it was true that its mere existence did not make the transfer fraudulent, but was evidence as to insolvency; and if the donor were insolvent, then the gift was fraudulent.”
    H. Trial, conduct of.—No conflict of evidence.
    1. Refusal to charge that there is no conflict, when, in fact, there is none, when not error calling for a reversal.
    
    Defendant’s counsel requested the court to charge that no recovery could be had for certain books which he claimed the husband had bought since the transfer to his wife, and that there was no conflict of evidence as to the time when they were bought. The court charged that no recovery could be had for after-purchased books, but left it to the jury to say which they were.
    
      Held,
    
    not error calling for a reversal; the court saying: “As to some of these books the evidence does not with certainty show that they were afterwards purchased; and inasmuch as the evidence consisted of dates spread through several exhibits, the court was not called, instantly and definitely to make an inference from their contents, so far as they were only remembered by the judge.”
    in. DAMASES IN ACTIONS FOB CONVERSION.—INDIVIDUAL OFFERS TO SELL.
    Evidence that the parties (to wit, purchasers under an execution sale) in possession of the articles converted had offered to return them to the plaintiff unconditionally upon the payment of prices less than those that had been testified to on the part of the plaintiS as being their market value, is inadmissible. The plaintiSs were entitled to the market value, and this evidence had no bearing on such value. The court said: “The rule (viz., that the measure of damages is the market value) should not be changed because certain persons actually made an offer to sell at lower prices, even if the testimony could show that they would abide by it, and not withdraw. The owner is under no obligation to have funds on hand, or to use the money he happens to have for his indemnification against the wrong-doer. The wrong-doer should indemnify, and furnish the means for indemnification.”
    IV. Misjoinder not cause fob reversal, when.
    Where an owner, deriving title under a transfer which is claimed to be fraudulent and void, as against the creditors of the transferrer, and a mortgagee of said owner join as plaintiffs in anaction for conversion; and defendant did not, either by answer or demurrer, interpose a defense of misjoinder, either of parties or of causes of action, and the recovery was not placed on the mortgage being valid as against the creditors of the transferrer, except in the single contingency of the mortgagor (the transferee) being the owner of the property, and it was limited to such of the property as was mortgaged,
    
      Held,
    
    there was no ground for reversal arising out of a misjoinder either of parties or causes of action.
    Before Sedgwick, Ch. J., and Russell, J.
    
      Decided April 3, 1882.
    
      Appeal by defendant, from a judgment and from an order denying a motion for a new trial made upon the minutes.
    The plaintiff, Fannie E. Weld, claimed to be the owner of certain books which she had mortgaged to her co-plaintiff, George W. Weld.
    The defendant, as sheriff, had levied an execution, on the books, issued upon a judgment against the husband of Fannie E. Weld. The plaintiffs claimed that Fannie E. Weld had become owner by a gift to her from her husband. The defendant claimed that this gift was fraudulent as to the creditors of the husband.
    The verdict was for the plaintiff.
    Defendant moved for a new trial on the minutes, which was denied ; an order was entered denying the motion for a new trial. From this order, and also from the judgment entered upon the verdict, the defendant appealed.
    
      Thomas G. Shearman, for appellant.
    
      Albert Stickney, for respondent.
   Sedgwick, Ch. J.

wrote for affirmance, holding the propositions contained in the head-notes; Russell, J., concurred.  