to the trustee by Smith & Sons Company. On June 24, 1901, the action in hand was commenced, and the contention of counsel for the plaintiff is that the sheriff was estopped from defending it on the ground of the invalidity of the sale to Carson, because French, the trustee, and the representative of Kellogg, Johnson & Co., a creditor, affirmed the sale by accepting the $679 derived from its proceeds. They argue that as to the plaintiff, Carson, and the vendor, Crittenden, the sale of October, 1898, was valid; that this sale was voidable by creditors only; that no creditor could affirm it in part and avoid it in part; that the acceptance by any creditor of a part of the purchase price of the sale as Crittenden's property was an affirmance of the sale; that French, after his election as trustee, was the representative of all the creditors, and, among others, of Kellogg, Johnson & Co., the plaintiff in the attachment, and that his action was their action; that French's acceptance of the $679 as the repayment of a fraudulent preference of Smith & Sons Company, effected by the payment to Smith & Sons Company by Crittenden of a part of the money which he had derived from the sale to Carson, was an affirmance of the validity of that sale, which estopped French, the trustee, and Kellogg, Johnson & Co., the attaching creditor, from maintaining its invalidity; and that this estoppel of the trustee and of Kellogg, Johnson & Co. also estopped the sheriff from defending the action of conversion against him upon the ground that that sale was fraudulent and voidable and entitled the plaintiff, Carson, to a verdict in his favor in this action.

Conceding, without deciding, that the action of the trustee in 1901 in accepting the return of the preferential payment estopped him and Kellogg, Johnson & Co. from thereafter asserting the invalidity of the sale to the plaintiff, Carson, did that estoppel have the effect. to deprive the sheriff of the right to defend this action against him upon that ground? The gravamen of this action-the allegation of the complaint upon which it is based-is that on December 1, 1898, under a writ of attachment against Crittenden in an action brought by Kellogg, Johnson & Co. against him, this sheriff seized and converted the goods of the plaintiff, Carson. The plaintiff alleged that the cause of action accrued on December 1, 1898, and, if it did accrue at all, it accrued on that day. The rights of the parties on that day, therefore, and not their rights at any other time, condition the existence or nonexistence of this alleged cause of action. It is not an action to recover the goods, and hence the subsequent rights of the parties to the property have no relevancy to the issue which the plaintiff, Carson, has tendered in his complaint, and which is to be determined in this action. This is an action for conversion on a given day. Its basis is the wrongful seizure on December 1, 1898. If the sheriff had the right to levy upon and take this property into his custody on that day, the plaintiff, Carson, has no cause of action. If the sheriff had no right to seize these goods under his writ on December 1, 1898, then the plaintiff can maintain this action. The instant this seizure was made, the damages alleged in this action accrued, if the seizure was wrongful. And no subsequent ownership of the property, not even a return of it by the sheriff to the plaintiff,

can relieve him from liability for the damages which the act charged in this complaint actually inflicted upon the plaintiff. On the other hand, if his seizure was rightful, if it was his right and his duty to levy upon and take possession of this property under his writ on December 1, 1898, no subsequent change of ownership in the property or in the relations of the parties, other than the sheriff, to the property or to each other, could make his seizure wrongful, or deprive him of any meritorious defense that he had to an action on account of that seizure.

But when the sheriff made this levy and took this property into his possession, the sale to the plaintiff was fraudulent and voidable as against Kellogg, Johnson & Co., the attaching creditors. They had elected, by the commencement of their action in attachment, to treat this sale as void, and the sheriff was exercising his legal right and discharging his lawful duty when he levied upon and took possession of the goods as the property of Crittenden under the writ against him. No cause of action to the plaintiff, therefore, accrued on December 1, 1898, on account of the levy and seizure, because the sheriff then had the right to make them. Concede now that in the summer of 1901 Kellogg, Johnson & Co. became estopped by the action of the trustee from asserting the fraudulent character and the invalidity of the sale. That fact evidently could not and did not make the sheriff's lawful seizure under his writ in December, 1898, wrongful. Nor could it nor did it estop him from pleading and proving the truth, nor from establishing his defense based on the invalidity of the sale, because he was in no sense a party or a privy to the act of the trustee, French, in affirming it, upon which counsel for the plaintiff relies. French did not represent this sheriff, and the latter was neither aware of nor did he consent to his act.

The facts that the sheriff was indemnified by Kellogg, Johnson & Co. against damage from his seizure of the goods under the writ, and that his relation to that corporation bears some analogy to that of an agent to his principal, cannot deprive him of his right to make his defense. The bond of indemnity protected him against lawful damages only. It gave him no indemnity against the damages that would have been recovered of him in this action if he had not defended it, because he was not legally liable for such damages, and it was his duty to present his defense. Besides, he was not required. to rely upon his bond. He had the same right to present and maintain every lawful defense which he had that he would have had if no bond had ever been furnished to him. And while his relation to the plaintiff in the attachment bears some analogy to that of agent to principal, it is not that relation. The right and authority of an agent acting for his principal are limited by the right and authority of his principal, and his duty is implicit obedience to the command of that principal. It is not so in the relation of a sheriff to a plaintiff in a writ of attachment. He may seize property and make levies which the plaintiff has no right to make or maintain without his interposition. He is primarily the agent-the executive officer-of the court, and not of the plaintiff in the attachment, and his first duty is to faithfully comply with the provisions of the law, and to obey the

commands of the court. He may heed the directions and suggestions of the attachment plaintiff only subject to the law and the orders of the court. The conclusion necessarily follows that when, in the discharge of his official duty, he has executed a writ or obeyed an order of a court in such a way that he has a perfect legal defense for his action, neither the plaintiff in the attachment nor any agent or representative of that plaintiff can, without his consent, make his action unlawful, or estop him from presenting and maintaining any lawful defense which he may have to it.

Our conclusion is that, where the fraudulent character of a sale of personal property found in the possession of the purchaser makes it the right and the duty of a sheriff to seize it under a writ of attachment against the vendor, neither the plaintiff in the attachment nor a trustee in bankruptcy of the vendor can, by subsequently affirming the sale without the consent of the sheriff, estop him from maintaining the invalidity of that sale in defense of an action against him for the conversion of the property by his seizure of it under the writ.

The court below committed no error by its refusal to sustain the theory of the plaintiff that the sheriff was estopped from maintaining his defense to this action founded on the invalidity of the sale by the acts of Kellogg, Johnson & Co. and the trustee in bankruptcy affirming it subsequent to his alleged conversion of the property, and the judgment below is affirmed.

WILLIAMSON v. LIVERPOOL & LONDON & GLOBE INS. CO.

(Circuit Court of Appeals, Eighth Circuit. April 20, 1903.)

No. 1,825.

1. INSURANCE-APPRAISERS MAY FIND TOTAL LOSS.

Under a policy of insurance which provides that in the event of disagreement as to the amount of loss the same shall be ascertained by two appraisers and an umpire, and that the appraisers shall estimate and appraise the loss, stating separately sound value and damage, shall submit their differences to the umpire, and the award of any two shall determine the amount of the loss, the appraisers are empowered to determine whether or not the loss is total, as well as to determine its amount in case it is partial.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the Western District of Missouri.

See 105 Fed. 31.

J. D. McCue and L. C. Boyle (William Warner, on brief), for appellant.

M. A. Fyke and Ed. E. Yates, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge. This is an appeal from a decree which avoided the award of appraisers appointed to ascertain the loss by

fire under policies of insurance issued by the Liverpool & London & Globe Insurance Company, the appellee.

An award of arbitrators appointed to appraise a loss under an insurance policy is supported by every reasonable intendment and presumption, and will not be vacated unless it is clearly shown that it was made without authority, or was the result of fraud or mistake, or of the misfeasance or malfeasance of the appraisers. Barnard v. Lancashire Ins. Co., 101 Fed. 36, 41 C. C. A. 170. There was no evidence that the award in this case was secured by fraud, or was the result of the misfeasance or malfeasance of any of the appraisers. The decree avoiding it rests upon the sole ground that the appraisers exceeded their authority, in that they determined the loss to be total when they were only authorized to find it to be partial.

The provisions of the policy pertinent to this question are these: "This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided."

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss."

The parties to the policies disagreed as to the amount of the loss, appointed two appraisers, and these appraisers selected an umpire. The appraisers proceeded to ascertain the amount of the loss. The first question which presented itself was whether or not the portions of the walls of the insured buildings which were standing could be used in replacing the burned structures. One of the appraisers was of the opinion that they could be used; the other believed that they could not be, because they stood upon made ground, which had been so softened by the water which had been thrown upon it in extinguishing the fire that it would not sustain the weight of the replaced buildings. One of the appraisers, therefore, insisted that the basis of the estimate of the loss should be the amount necessary to repair the buildings as they then stood; the other maintained that the walls and foundations must be taken out and new buildings constructed upon solid foundations, using only what old materials were available for that purpose. This was a basic difference, and they could not proceed to determine the loss until that difference was settled. They therefore referred it to the umpire, and he determined that the buildings were so badly damaged that they could not be safely repaired, and that it was necessary to lay new foundations and construct new buildings in order to restore to the insured the property that had been lost by the fire. Thereupon the appraisers proceeded to determine the amount of the loss, one upon the basis approved by the umpire, and

the other upon the basis of repairing the buildings with the use of the damaged foundations and walls. They necessarily reached different results. These were submitted to the umpire, and he again decided that the true basis upon which to estimate the loss was the cost of the construction of new buildings of the character of those destroyed, and that the cost of reconstruction estimated upon this basis was the true amount of the loss. Thereupon the appraiser with whom he agreed and the umpire signed and delivered an award to the effect that they had determined the sound value of the property insured to be $23,547, "and the loss and damage to be total, as in fact the buildings are totally destroyed, and the remaining walls must be taken down to reconstruct; the cost of removing all other remaining materials as is necessary is fully equal to the value thereof." The other appraiser refused to sign this award, and the court below set it aside upon the ground that the appraisers had no authority to determine whether or not the loss was total, but were limited to determining the cost of replacing the property in its condition before the fire with the aid of the damaged walls and foundations. But the policy grants the power and determines the extent of the authority of the appraisers. It provides that in the event of disagreement as to the amount of the loss the appraisers shall estimate and appraise the loss. If the insured claimed that the loss was total, and the insurer insisted that it was but 90 per cent. of the value of the property insured, there would be a disagreement between them as to the amount of the loss. If appraisers were then appointed, it would be their duty to estimate and appraise the loss. If the appraisers were of the opinion that the loss was 100 per cent., it would be their duty to so find and award. If one of them was of the opinion that it was less than 100 per cent., while the other believed it to be total, it would be their duty to submit this difference to the umpire, who would be authorized to settle it. There is no limitation of the authority of the appraisers to a determination of 50 per cent. or 90 per cent. or 99 per cent. or any other part of the loss. The policy authorizes them to determine the entire loss, and, if that loss was equal to the entire value of the property insured at the time of the fire, it necessarily authorized them to find that the loss was total. The agreement of submission to arbitration under which the award was made confirms this view. It contains this provision:

"It is further expressly understood and agreed that, in determining the sound value and the loss or damage upon the property herein before mentioned, the said appraisers are to make an estimate of the total cash cost of replacing or repairing the same or the actual cash value thereof at and immediately preceding the time of the fire, and in case of depreciation of the property from use, age, condition, location, or otherwise a proper deduction shall be made therefor."

It will be noticed that the appraisers were to determine the sound value and the loss or damage; that is to say, if the property was entirely destroyed they were to determine the loss, and if it was partially destroyed the damage.. Farther on the stipulation provides that they are to make an estimate "of the actual cash cost of replacing or repairing the same, or the actual cash value thereof at and immediately pre