37 Mich. 430 | Mich. | 1877
Defendant in error brought an action of trover for the conversion by the defendant, plaintiff in error, of a large sum of money and certain promissory notes. Defendant by his counsel demurred specially to the declaration. The first cause assigned — the only one we need here discuss —was that the declaration did not “with sufficient certainty set out the description of the promissory notes alleged to have been held by defendant at the time of making the alleged assignment, and on which notes recovery is sought in said court.” The description in the declaration was “divers promissory notes against sundry persons, and in various amounts of great value, to-wit: of the value of four thousand dollars.” The declaration also in the same connection set forth that the defendant Burrows, being lawfully possessed of these notes, executed to the plaintiff a voluntary assignment, for the benefit of his (Burrows’) creditors, of all hi3 property, goods, chattels, effects and dioses in action; that plaintiff accepted said assignment and thereby became the owner of such dioses in action, that he casually lost the same, etc.
Taking this count of the declaration and looking at all its parts, it would appear therefrom that the plaintiff did
The objections made here that the verdict was not warranted by the evidence, and that the court improperly took the case from the jury, we think are not well taken. The evidence on the part of plaintiff consisted principally, if not wholly, of admissions made by defendant as to the money and notes and their value. If, as now claimed, these notes, although on their face purporting to be for $900, may have been worthless or of but little value on account of the bankruptcy of the makers, or for other supposed reasons, we think it was incumbent on the defendant to have shown such facts upon the trial. He could not sit by and permit testimony to be introduced and submitted to the court and jury tending to show his liability and the extent thereof, and then seek to evade the conclusion arrived at by mere speculations or guess work. If the notes were of less value than his admissions as testified to would seem to indicate, he should have shown such fact by competent testimony. Nor do we understand, from the printed record, that the court withdrew any fact that was contested or disputed below, from the consideration of the jury. The requests to charge, if given, would have taken the entire case from the jury. These the court declined to give and instructed them that the plaintiff was entitled to recover.
The real question in controversy in this case, viz.: that
To support his title he introduced an instrument of which the following is a copy:
“Insolvent Act oe 1869.
“This assignment, made between Charles' Burrows, of Wilkesport, lumber merchant, in the county of Lambton, and province of Ontario, of the first part, and William J. Keays, of the town of Sarnia, in the county of Lambton, and province of Ontario, official assignee for the said county of Lambton, of the second part:
“Witnesseth, that under the provisions of the ‘Insolvent Act of 1869,’ the said party of the first part, being insolvent, has voluntarily assigned, and hereby doth voluntarily assign to the said party of the second part, accepting thereof as interim assignee under the said act, and for the purposes therein provided, all his estate and effects, real and personal, of every nature and kind whatsoever.
“To have and to hold to the party of the second part as assignee for the purposes and under the act aforesaid.
“ In witness whereof, the parties hereto have hereunto set their hands and seals, this twelfth day of October, in the year of our Lord one thousand eight hundred and seventy-four.
Charles Burrows, [l. s.]
W. J. Keays. [l. s.J
Signed, Sealed and Delivered in presence of
W. Boy.”
It is insisted that this instrument was not intended as an absolute bill of sale; that it-is a document made under the provisions of the insolvent act of 1869, “for the purposes therein provided,” and that the plaintiff holds the property as assignee, “for the purposes and under the act aforesaid,” and that what these purposes are, or what title passes, without reference to the act we have no means of knowing, and that even had the act been introduced and proven, it would have no force, and would be inoperative in Michigan. This argument might be correct if plaintiff’s title was derived solely under and in virtue of the act referred to. If, however, Burrows voluntarily made an assignment for the benefit of his creditors, the fact that it was made under the said act, and for the purposes therein provided, would not, as
A reference to the assignment shows that “ the said party •of the first part (Burrows) being insolvent, has voluntarily assigned, and hereby doth voluntarily assign, to the said party of the second part (Keays), all his estate and effects, real and personal, of every nature and kind whatsoever.” 'This we think is sufficiently full and complete to transfer •and pass the title to the plaintiff to the property in question, and gives him a right to come into court and enforce •and protect such title as against the claims of the assignor. Any other view, assuming the position of defendant to be •correct, would enable a debtor residing in Canada to send his property into this State, then make a voluntary assignment for the benefit of his creditors, and at once come here and enjoy his property, without any power in the assignee, to follow him and obtain possession thereof. This branch of the case very closely resembles Graydon v. Church,, 7 Mich., 50, where the same questions were discussed, and the conclusion there arrived at must govern and determine in this case.
The judgment must be affirmed with costs.