Preston v. Leighton ex rel. Kelly, Ball & Co.

Tuck, J., delivered the opinion of this court. The present record is the same with that on which the former appeal was decided, with the addition of proof that Rosenthal and Mosher applied for the benefit of the insolvent laws, on the 31st of January 1845, and that Glenn was appointed their trustee. 9 Gill, 201. This additional evidence does not vary the law of the case, because by the deeds of January 21st and 25th, 1845, all the interest and title, legal and equitable, of the petitioners, had been conveyed away, and there was nothing as to this property, on which the insolvent laws could operate. Malcolm vs. Hall, 9 Gill, 177 .

The case being substantially the same, whatever was décided on the former appeal must govern on this. The first prayer of the appellants asserts that the mortgage did not operate to convey subsequently purchased goods, and that the onus of showing what proportion of the property, which was in the store at the date of the instrument had passed into the hands of the defendants, was upon the plaintiff. If either of these propositions be erroneous, the prayer being an entirety, was properly rejected Budd vs. Brooke, 3 Gill, 220 . The burden of pfoiff w’as upon the defendants.

All the goods, fixtures, &C., in the store, had been conveyed to the plaintiff by a deed that is not impeached. Afterwards the defendants took possession of this property, or of what remained, together with the accounts and bóoks, from which the extent of the fiew purchases might probably have been ascertained, and sold it at public auctioh, by which, the Court of Appeals sáid, they committed a to'rt. A few days before the execution of the deed of trust thé property was abundantly sufficient to pay the plaintiff’s claim, and, but for their interference, might have so remained, until disposed of according to law' and the rights of persons interested. If they have by a tortious act, deprived thé plaintiff of the means of proving his cáse, as fully as they insist he should have doné, or, if, having possessed themselves of the books and accounts, they will'not produce them for the purpose of explaining'or rebut ⁹⁸ ting the case as presented on the part of the plaintiff, they cannot complain of the consequences.

Every presumption is made against a wrong-doer. Armory vs. Delamirie, 1 Strange., 504, was decided upon the ground, that the defendant had suppressed the means of