Noah Haynes Swayne

“ The court having charged the jury upon the facts, notwithstanding the request that it would follow and be governed by the laws of the State of Illinois and the practice of her courts of record, defendants' counsel excepted thereto, as well as to its refusal to permit the jury to take to their room the written instructions given by the court, or the account-book, freight-bills, and other papers introduced in evidence, other than the depositions. ”

“ The bill of exceptions does not purport to give all the evidence. What proof had been given of the alleged concert and conspiracy on the part of the defendants when the declarations of Emmons were offered to be proved does not appear. ”

“ When a conspiracy is formed to do an illegal act, or to commit a fraud, the acts or declarations of any of the conspirators may be given in evidence. 1 Greenl., sect. 111; American Fur Co. v. United States, 2 Pet. 358.
2. The declarations of R. B. Chandler were properly excluded. He could have been called as a witness.
3. As to the objection that the court did not follow the practice of the courts of Illinois.
The court did not instruct the jury as to the facts, but only as to the law.
4. As to the lien claimed by the defendants below as factors or brokers. ”

“ The identity required is to be in 'the practice, pleadings, and forms and modes of proceeding.' The personal conduct and administration of the judge in the discharge of his separate functions is, in our judgment, neither practice, pleading, nor a form nor mode of proceeding within the meaning of those terms as found in the context. ”

“ To a question in this connection as to the declarations of Richard B. Chandler after the 13th of December, respecting his being interested in the firm carried on in the name of Norton Emmons, the plaintiff objected; and, the objection being sustained by the court, the defendants duly excepted.
A witness for the defendants having testified that James W. Chandler frequently came to Chicago after Dec. 13, 1870, in charge of the consignments of stock, the defendants asked what if any thing was said respecting the sale or prices at which stock should be sold. ”

“ The defendants introduced evidence tending to show that they acted as the factors of said Emmons prior to the time of his partnership with Richard B. and James W. Chandler, and for said firm of Emmons & Chandler after that time and until the closing of the account, Jan. 10, 1871; that during all this time it had been the usual course of business and the regular practice of the defendants to advance money to these parties to buy stock, relying upon the consignments to be made to them to cover such advances ”

“ If a preference is given by a firm of which only one member goes into bankruptcy, such preference cannot be avoided by the assignee of the bankrupt partner. Forsaith v. Merritt, 3 N. B. 48; In re Shepherd, id. 172.
4. The court erred in its instruction upon the question of a factor's lien.
The bankrupt estate is in no worse condition, if the defendants are allowed to retain the proceeds of the consignments, than it would have been if the defendants had never made the advances in reliance upon these consignments. Anderson v. Clark, 2 Bing. 20; Harle v. Smith, 1 B. & P. 563; 3 Pars. on Contr. ”

“ Hall, 16 Wall. 584; Story on Ag., sect. 377; Russel on Factors, 207 (Law Lib., vol. xlvi.) .
The lien of a factor does not attach when the possession comes to him wrongfully or by fraud. 2 Kent, Com. 638; Larupriere v. Pasley, 2 Term R. 485; Story on Ag., sects. 360, 361.
MR. JUSTICE SWAYNE delivered the opinion of the court.
The first of the assignments of error presents the question, whether the court erred in admitting in evidence the declarations of the bankrupt.
The suit was brought by the assignee to recover against Nudd and Noe for money and property which they had received from Emmons. ”