
    Jacob Rich vs. Charles E. Henry.
    Law. No. 23,606.
    Decided June 15, 1885.
    Justices Cox, Jambs and Merrick sitting.
    1. It is not necessary that the return upon aji. fa. should be made prior to the return day ; it may be made at any time after, and even after ths marshal and his deputy have gone out of office. It is not error, therefore, for the court, on a trial in which the /?. fa. is relied on as a defence, to permit the ex-deputy to make a return upon the writ, although it be long after the return day.
    2. In cases where fraud is the foundation of the action, a larger latitude is of necessity given to questions of evidence only than in any other class of cases, for it is often impossible to say ab ante, what may or may not become evidence of fraud according as the future developments of the case may reflect upon it. Hence it is expedient, and often necessary, that evidence not apparently admissible shall be allowed to go to the jury, subject to the control of the court, in afterwards rejecting it or modifying with proper instructions with reference to the particular circumstances of the case.
    3. An independent act or an independent declaration of an assignor after the assignment, can be of no value, of course, to prejudice an unquestionably good assignment, and per se is no evidence against it. But when those acts oi declarations are shown to be made in connection with any privity of thé assignee, and coupled with a certain scheme of procedure for the purpose of carrying it out, the court, by appropriate instructions guiding the minds of the. jury in the application of these subsequent and extraneous acts, may properly submit them'to the jury to reflect upon the antecedent intent.
    STATEMENT OF THE CASE.
    This was an action of replevin brought against Charles E. Henry, the marshal of the District, who had taken in execution certain property, consisting of merchandise of the value of about $6,000. The plaintiff claimed the possession as assignee, under a deed of assignment for the benefit of creditors, with preferences, from one Hart L. Strasburger. The deed of assignment was valid on its face, but the defendant alleged it to be fraudulent and void and made to hinder and delay creditors, and on the trial he attacked it on that ground. For the' purpose of establishing the fraud he offered, with other evidence, testimony as-to certain acts and declaration of the plaintiff and his assignor subsequent to the assignment, and in some instances subsequent to this suit. The ruling of the court in admitting this testimony formed the subject of most of the plaintiff’s exceptions. The defendant, further to support his right to contest the validity of the assignment, produced certain writs of fieri facias issued in several actions at law in this court, which had never been returned or filed in the clerk’s office, and, (it being admitted that the defendant was United States marshal when the writs issued, but that he had been out of office for more than a year then passed), the court, at the request of defendant’s counsel, permitted L. P. Williams, who had been deputy marshal under the defendant, to make returns upon the writs, and to sign the returns in the name of the defendant, and then admitted the writs, and the returns so made upon them, in evidence. Upon this action of the court was based another of the plaintiff’s exceptions.
    The jury found for the defendant; and a motion for a new trial being overruled, the case came to the General Term upon the numerous exceptions taken at the trial, all of which, however, except that as to the admission of the writs of fi.fa., embodied substantially the question involved in the exceptions first above stated.
    N. H. Miller and A. 0. Bradley for plaintiff:
    It was error to permit the ex-deputy of an ex-marshal to sign the returns upon the writs. It was the duty of the defendant to return the writ into the clerk’s office within sixty days so indorsed as to show when and how he had executed it. The writs never were returned to the clerk’s office as required, and the defendant could not justify under them. Shorland vs. Govett, 5 B. & C., 485; May vs. Sly, 5 Blackf., 206; Davis vs. Bush, 4 Id., 331; Williams vs. Babbitt, 14 Gray, 141; Russ vs. Butterfield, 6 Cush., 242; McElrath vs. Kinzing, 5 Pa. St., 336; Union Bank vs. Barnes 10 Humph., 244.
    The plaintiff had given a good bond to respond for the goods replevied, or their value, if judgment should be rendered against him, and evidence of his acts .in the disposition of the goods pending the suit was inadmissible to prove fraud in the assignment. Adder vs. Apt, 30 Minn., 45; Grillispie vs. Walker, 56 Barb., 185.
    The evidence admitted was more than two months subsequent to suit. The matters referred to were too remote, and did not constitute a part of the res gestee, and were therefore inadmissible. Apthorp vs. Comstock, 2 Paige, 482-488; Fogg vs. Child, 13 Barb., 246; Marbury vs. Brooks, 7 Wheat., 578-581.
    Such evidence could only be competent in aid of proof that the assignor and plaintiff combined and colluded for the purpose of hindering and delaying the creditors of Strashurger, and that the assignment was made in pursuance of such scheme. Bump on Fraud. Conv., 4d ed., 585; Marbury vs. Brooks, 7 Wheat., 574; Savery vs. Spalding, 8 Iowa, 239; Wiler vs. Manley, 151 Ind., 171; Beck vs. Parker, 65 Pa. St., 262; Adler vs. Apt, 30 Minn, 46; Eicks vs. Copeland, 53 Texas, 581; Bates vs. Ableman, 13 Wis., 644-50; Main vs. Lynch, 54 Md., 658, 673; Straus vs. Rose, 59, 425; Luckemeyer & Schafer vs. Seltz & Mertz, 61 Md., 313 ; Hathaway vs. Brown, 18 Minn., 414, 427-8; Boyd vs. Jones, 60 Mo., 454, 470, 471; Apthorp vs. Comstock, 2 Paige, 488; Cuyler vs. McCartney, 40 N. Y., 221; Clements vs. Moore, 6 Wall., 299-313; Lincoln vs. Claflin, 7 Id., 132-139.
    A. B. Duvall, Hanna & Johnston and Leon Tobriner for defendant:
    The writs are not void if not returned within sixty days. There is no penalty attached to the failure to so return them. The limitation simply signifies that the defendant in such writs may compel the return after such period.
    “ Until the execution and return is actually filed in the proper office, the return is not complete, and is sub]ect to the control of the ' officer executing the writ, and may be amended by him without permission of the court. The officer is allowed to amend his return, even after it is filed, by affixing his signature thereto, and such amendment is valid, though made after the expiration of his official term.” Herman on Executions, 401-402.
    
      United States Revised Statutes, section 790, authorize the late marshal and his deputies to complete the execution of process in their hands.
    The law is settled for this jurisdiction that the marshal may make his return after the return day, and at the time of trial. “His return when thus made was under his oath of office, and he was equally responsible- for it as if it had been made on the return day named in the writ itself.” The execution, returnable on its face to November term, 1837, was actually returned at the time of trial in 1839. The court held' there was no objection on this ground. Remington vs. Linthicum, 14 Pet., 84, 92.
    And it is equally well settled, that “if an execution comes into the hands of a sheriff to be executed, and his term of office expires before he executes it, he is bound, nevertheless, to complete the execution; and the same rule applies to a marshal. An execution is never completed until the money is made and paidover to the plaintiff, if it is practicable to make it. McFarland vs. Gwin, 3 How., 119, 120.
    To the same effect ride: Welsh vs. Joy, 13 Pick., 477, 451; Morris vs. Trustees, 15 Ill., 266, 269, and cases; Wilton M’f’g Co. vs. Butler, 34 Me., 442; Fitch vs. Tyler, Id., 490; Keen vs. Briggs, 46 Me., 267, 470; Main vs. Lynch, 54 Md., 669.
    The making of the return was not objected to, but only the offering the writs in evidence after they had been returned.
    In none of the cases cited by appellant was leave asked and granted to make return of the writ; they were all cases of trespass against an officer in which he was compelled to justify under writs not re-turned.
    As to facts subsequent to the assignment, testimony showing the ultimate destination of the property and the conduct of the parties is admissible. Such subsequent facts can only be considered by the jury as reflecting back upon the intent of the assignor when he made the assignment. Under the authorities subsequent facts are clearly admissible for tbe purpose. Lines vs. McGregor, 13 Allen, 179; Wilson vs. Forsythe, 24 Barbour, 121; Shultz vs. Hoagland, 85 N. Y., 468; McKinley vs. McGregor, 3 Wharton, 310, 388.
    The record shows that these subsequent facts were introduced for the purpose of proving the intent of the assignor when he made the deed.
   Mr. Justice Merrick

delivered the opinion of the court.

This was an action instituted by the voluntary assignee of a debtor, for the benefit of creditors, against the marshal who had taken possession of the goods under certain writs of execution. The defendant, the marshal, rested his defence upon the ground that the assignment was a fraudulent one, and the question tried before the court and jury was as to the fraudulent nature of that deed.

The exceptions in this case are multitudirous, and it is quite impossible for the court to travel over them in detail, numbering as they do, twenty-two in all, chiefly directed to points of evidence and not involving any general questions of law in themselves. Therefore, independent of other considerations, it will he useless to enter into minute criticism upon the rulings of the court upon these various points of evidence, with the exception oí a single one, where the plaintiff took exception to the offer in evidence of the writ of fi. fa. under which the marshal justified the taking of the goods, and set up title upon the ground that it had not been ^returned prior to the return day.

It is a general principle of law familiar to the practice of this District and to the practice of England through an unbroken succession of decisions, that a writ of execution— final process as distinguishable from mesne process — does not require a return to give it vitality. It may be relied upon as an element of evidence at any time in title to land or title to personal property, independent of the fact of its having been returned prior to the return day. Indeed it is a looseness of practice not to be commended, but still it is a practice justified, that a writ of that sort does not lose any of its efficacy by not having been returned. So far do the courts go with, reference to the process of final execution, that even after the return day has passed, and long after the particular sheriff has gone out of his office, still, having life while in office, it is his duty, and the right of nohody else, to perfect that execution which he has levied; and if the succeeding sheriff undertakes, under a writ of venditioni exponas or otherwise, to execute that incomplete process, it is null and void, because the former sheriff is the only man who can execute the process.

That being so, the fact remains that the return may be made at any time, and when made it is of equal effect and of equal verity as if it had been made prior to the return day. The object of having a return day is that the sheriff in default may be held responsible to the parties if he is guilty of aiiy laches; and that they may have a day in court to vindicate themselves with respect to any rights they may have respecting the process of execution.

That disposes of the question chiefly relied upon as to the title of the defendant — that the process was not returned by the return day, and, therefore, could not have been returned properly.

There were various exceptions taken to points of evidence. It may be remarked that in cases whore fraud is the foundation of the action, there is a larger latitude, of necessity, given to questions of evidence only, than in any other class of cases, and that it is oftentimes impossible a priori (ab ante, as some lawyers more properly say), to determine whether a particular state of facts is or is not in the given issue of fraud. Fraud being so variant, and the act itself being equivocal, may or may not become evidence of fraud according as the future developments of the case may reflect upon it. The human motive which is at the bottom of this is so peculiar that a man may do one act from one motive and a different man do the same or some similar act from a totally different motive; and the slightest circumstances have such a kaleidoscopic action upon a set of facts, that it is impossible until they are all developed to determine what shall or shall not be the particular influence of a particular incident upon the whole array of facts brought in view. Hence it is expedient, and oftentimes necessary, that evidence, not apparently admissible, shall be allowed to be given to the jury, subject to the control of the court, in afterwards rejecting or modifying it, with proper instruction, with reference to that particular state of circumstances.

It was that character of procedure which was resorted to, most appropriately, by the court below in the trial of this case. And in reviewing the action of the court we do not find, although the counsel were very astute in this number of exceptions to which we have alluded, that there was any error in the ruling upon the evidence at all.

The counsel relied very strongly upon the point that the allowance at the trial of evidence of acts by the assignor subsequent to the deed of assignment was erroneous. It is true that acts of the assignor subsequent to the assignment were admitted in evidence. An independent act or an independent declaration of an assignor after the assignment, can be of no value, of course, to prejudice an unquestionably good assignment, and per se is no evidence against it. But when those acts or declarations are shown to be made in connection with any privity of the assignee, and coupled with a certain scheme of procedure for the purpose of carrying it out, the court, by appropriate instructions guiding the mind of the jury in the application of these subsequent and extraneous acts, may properly submit them to the jury to reflect upon the antecedent intent.

That is what the court below did in this case, and it very properly, therefore, rejected one of the prayers of the plaintiff — the eighth prayer — which he presented, which was too general upon that subject, and granted his twelfth prayer which covered the entire law of that matter. The eighth prayer as rejected is in these words:

“ The jury are instructed that they are not at liberty to consider evidence of matters subsequent to the execution of the assignment as against that instrument, unless they find in such evidence by the facts proven, that the assignor and plaintiff combined or colluded for the purpose of hindering and delaying the creditors of Strasburger, and that the assignment was made in pursuance of such scheme.”

That prayer was rejected because the language, of it was too vague. But the same proposition which was probably meant to be embodied in that, was granted in the twelfth instruction, in these words:

“ The evidence of the act subsequent to the execution of the assignment relied on by the defendant as evidence of fraud in the sale of goods, can only be considered by the jury as reflecting back upon the interest of the assignor when he made the assignment. The mere fact that the assignor sold the goods recklessly or below their face value would only be proof of the assignee’s conduct and in itself would not tend to invalidate the deed of assignment.”

That prayer was granted, and in connection with it the charge to the jury that they could only take into consideration those external and subsequent acts where they were shown from the other evidence to have been made and enacted in complicity with the assignee, and as part of the obvious scheme and combination between the two to perpetrate a fraud upon the creditors.

It is unnecessary to prolong this opinion any longer, except -to say that we find, in all the exceptions that were taken, no error on the part of the judge, either in his ruling on the evidence or in the instruction and charge which he gave to the jury. Whatever might at all have some suspicion of inadmissibility was so qualified by the charge itself as to take away any possible danger of the jury being misled by what was submitted to their consideration.

The judgment of the court below is therefore affirmed.  