18 Wis. 545 | Wis. | 1864
By the Court,
The plaintiffs move to strike the bill of exceptions from the files, because it was settled and signed without notice to their attorneys, and because no copy was served upon them. The motion is made upon the affidavits of their attorneys, Mr. Knowlton and Messrs. Clary & Ma-goon, to the effect that they were not served with a copy of
The judgment must be reversed for error in granting the sixth, seventh, eighth and ninth instructions asked by the plaintiff.
1. The first clause of the sixth instruction is without objection, but the last is not. The plaintiffs were partners, and sue for the alleged wrongful taking and conversion of their partnership property; and such is the nature of their legal rights
2. In the seventh instruction, the jury were charged that if the plaintiffs in attachment, in whose right, as creditors of Boger Bromley, the defense is made, received a per centage of the debt due them under the assignment of Boger Bromley for the benefit of his creditors, then they could not proceed by attachment against any goods owned by Boger Bromley at or prior to the time of making the assignment, and the justification set up in the answer conld not be maintained. It is well settled that, unless prohibited by statute, partial assignments of the
3. The eighth and ninth instructions may properly be considered together. They involve substantially the same legal propositions, and if one is erroneous, both are. They are to the effect that the assignment by the debtor of all his property for the benefit of his creditors, carried with it to the trustees the title to property which he had previously fraudulently transferred for the purpose of hindering, delaying or defrauding his creditors. This seems to be the very opposite of the settled rule of law. Brownell v. Curtis, 10 Paige, 210; Browning v. Hart, 6 Barb., 91; Leach v. Kelsey, 7 Barb., 466; Vandyke v. Christ, 7 Watts & Serg., 373; Jones v. Yates, supra; Burrill on Assignments, chap. XXIX, p. 358. The assignor having himself no property in the goods which he had fraudulently transferred, could pass none to his assignees. It was observed by Lord Teitterden in the case last cited, that with the exception of a compulsory assignment under the bankrupt laws, which stands upon peculiar grounds, he knew of no instance, and none had been mentioned at the bar, where the répresentatives could sue where the party represented ciDuld not. The case of an executor or administrator suing for the
Judgment reversed, and a new trial awarded.