Unlеss the assignment was void upon its face, there was of course no error in permitting it to go to the ]ury.
The instrument conveys all the property of every character owned by the firm making the assignment. This has always been held a sufficient description, and is as definite as аn absolute owner is required to make in an ordinary deed to his property. It is only necessary that the desсription given should be such that, when supplemented by parol evidence, it will suffice to ascertain the property. Clark v. Few,
As to the other objection, it has been held by this court that it is enough if the assignment give the namеs of the creditors without stating the nature or amount of their debts; or at least that the failure to do more does not vitiate the deed, or authorize the court to declare it void upon its face. Van Hook v. Walton,
The omission to include in an assignment a full statemеnt of the property conveyed, or of the creditors of the assignor, and the amount of their demands, must be done with a fraudulent intent iti order to vitiate it; and as no such intent appeared on the face of the present assignment, if it existed at all, it must have been by reason of extraneous facts to be submitted to the jury in connection with the instrument itself.
The case of Caton v. Mosely,
Hot so with the present assignment, as the entire method in which the trust is to be executed is pointed out in the instrument. We think it was properly admitted in evidence. Seе Baldwin v. Peet,
It is further urged that thе court erred in not charging the jury
It is certainly clear that at the timе the attachment was levied, as also when this suit was commenced, no debts had been paid, as no disposition had been made of the assets till February 1, 1879. If the assignment was valid it passed title to all the property out of Keep & Tates, and it was not liable to attachment for their debts, whether sufficient or insufficient to pay all debts in full. By levying the attachment the defendants became trespassers; and if they wished to justify themselves or show that the other creditors were not injured, or that they, the defendants, were entitled to the money which might be rеcovered in the suit as the only remaining creditors, the onus was upon them to prove it. It was a ground of defensе for themselves, and not a necessary fact to be pleaded or proved by the plaintiffs to entitlе them to recover. Besides, there was some proof made by the plaintiffs that a portion of the сonsenting creditors had not been paid, and the plaintiffs were of course not of that class. And had the judge charged as defendants say he should have done on this subject, it could not have altered the verdict, and it has been held that under these circumstances a judgment will not be reversed. G., H. & S. A. R. R. Co. v. Delahunty,
As to the refusal of the court to charge in reference to the supposed attempt of Keep & Tates to prefer creditors, it is sufficient to say that there was no proof to show that any individual creditors were preferred. Phelps & Co., the alleged individual creditors, state positively that their claims were firm debts. The only proof offerеd to the contrary was, that the books of Keep & Tates show that the claims of Phelps & Co. were charged up to Tates as his separate indebtedness. But this would only show that Tates had assumed the indebtedness, and that, as between him and Keep, Tatеs would have it to pay from his separate funds. But this did not render the partnership any less liable upon these сlaims to Phelps & Co. The latter had nothing to do with any arrangement between the parties from whom the debt wаs due. They looked to both members of the firm, could sue both and enforce these claims against them, and Keep & Yates might settle between themselves as to how they would charge up the money that was used towards their payment. The partnership property was liable for the indebtedness before it could be used tо the payment of any separate debts, and hence an assignment of that property for its payment in preference to other
There is no error in the judgment, and it is affirmed.
Aefiemed.
[Opinion delivered May 13, 1884.]