Harvey v. Mix.

therefore, we advise that the motion in arrest be overruled, and that a new trial be denied.

In this opinion, the other Judges, STORRS & ELLSWORTH, concurred.

New trial not to be granted.

HARVEY US. MIX.

A conveyance of property, made in 1851, by a copartnership in failing circumstances, with a view to insolvency, authorizing the grantees, “to pay, from time to time, in the process of settling up our affairs, such just claims, not herein before mentioned, of other persons against us, as said vendees may deem it prudent and proper to settle," and also conditioned that such conveyance should be void on the failure of the grantees to pay certain notes therein mentioned, is in violation of the act against fraudulent conveyances, now in force, (Rev. Stat. tit. xx. § 1,) and also of the additional act of 1828, and is therefore void.

A technical informality, in a conveyance of property in trust, is not necessarily an obstacle to the grantee's appropriating the property conveyed, to the discharge of the grantee's liabilities, agreeably to the directions, contained in the conveyance.

Where a copartnership in September 1851, conveyed certain property in trust, by an instrument, which was void, as against the creditors of the grantors, and the trustee proceeded to appropriate the proceeds of a part of the property conveyed, agreeably to the directions of the conveyance, and in the next October, one of said grantees assumed the control of said property, by agreement with the other grantees, and in December following, purchased the property conveyed, then on hand, and paid for the same,and in May, 1852, in an action against said copartnership, the plaintiff garnisheed such purchaser as the trustee and debtor of said copartnership; it was held, that the garnishee was not liable.

In a scire facias, in a process of foreign attachment, evidence is not admissible to show that a garnishee, described in the original process as the debtor of a copartnership, is the debtor of an individual member of such copartnership.

Harvey v. Mix.

THIS was a scire facias in a process of foreign attachment, setting forth a judgment, obtained by the plaintiff, against Hosea B. Harvey, Samuel J. Root, William Needham, and Walter W. Scovill, partners, under the firm of Harvey, Needham, Root & Co., before the city court, for the city of New Haven, holden on the 8th day of May, 1852, in an action of book debt.

The present defendant was described in the original writ, and also in the scire facias, as the trustee and debtor of said copartnership.

The cause was appealed to the superior court, and tried at the term, holden in October 1855.

Upon the trial, the plaintiff claimed to have proved, that on the 1st day of September, 1851, Harvey, Needham, Root & Co., manufacturers of iron work in the city of New Haven, being in failing circumstances, and compelled, by the service of various attachments upon their property, to close their manufacturing establishment and suspend their business, and owing, among other creditors, the defendant Mix, about fifteen hundred dollars, and to John Bromham, about six hundred and fifty dollars, and to Lewis B. Judson, about two hundred and thirteen dollars, and to Peck & Harrison, about one hundred and seventy-three dollars, with a view to their insolvency, executed the following instrument in writing, and on the same day delivered the same to the grantees named therein, of whom the defendant was one.

"Whereas we, Harvey, Needham, Root & Co., of the town and county of New Haven, are indebted to divers individuals, and in consequence of the service of several attachments upon us, are greatly embarrassed in our business and whereas we are anxious to settle as speedily as possible all just claims of our creditors, upon us, and to obtain relief from our embarrassment without unnecessary delay, now, in consideration of our indebtedness to John Bromham, Jas. T. Mix, Lewis B. Judson, and Lucius G. Peck, and Henry B. Harrison of said town, that is to say, of the several debts due from us

Harvey v. Mix.

to them respectively, we have bargained, sold and conveyed, and hereby do bargain, sell and convey to said Bromham, Mix, Judson, Peck and Harrison, all our right, title, and interest in, and to each and all, the engines, implements, tools, machinery, lathes, finished and unfinished, stock and personal property of every description whatsoever, now situated in and about the buildings and premises now occupied by us in Artizan street, in said town, to have and to hold to the said vendees and their assigns forever, upon the conditions hereinafter stated, and we further transfer, assign and convey to said vendees upon the same condition, all notes, claims, demands and choses in action and rights of action, by book or otherwise, which we have and hold against any and all persons, and we hereby authorize and empower the said vendees, by their agents, the said Peck and Harrison, to finish up all unfinished lathes and other work yet unfinished, herein conveyed as aforesaid, and to sell the same when finished, and to sell and dispose of, as they may see fit, all the articles herein conveyed and to employ all necessary and suitable materials and labor in so preparing said materials for sale, so as to make them sell to good advantage. And we authorize said vendees, by their said agents, from the proceeds of said sale, to appropriate to themselves such sums as will fairly defray all expenses for material, labor and services which may from time to time be incurred by said vendees in the progress of settling up our affairs, and we further authorize them after making such appropriation, 1. To pay, settle and discharge all just claims of the different individuals, other than said vendees, who have issued attachments against us, so as to free us from all liability to them whatsoever. 2. To pay, settle, and discharge all just claims which our workmen have against us, so as to free us from all liability and responsibility to them whatsoever. 3. To pay, settle, and discharge, all just claims which said Bromham has against us, so as to free us from all liability or responsibility to him whatsoever. 4. To pay, settle, and discharge all just claims which said

Harvey v. Mix.

Mix and Judson have against us, except four notes for $1375 each, secured by mortgage to said Mix, so as to free us from all liability or responsibility to either of them whatsoever. 5. To pay, settle, and discharge all just claims which said Peck and Harrison have against us, so as to free us from all liability or responsibility to them whatsoever.

And we further authorize them to pay, from time to time, in the progress of settling up our affairs, such just claims, not hereinbefore mentioned, of other persons against us, as said vendees may deem it prudent and proper to settle.

The condition of this instrument is such, that whereas we are legally bound to pay said Bromham a certain note, drawn by Meshurul & Harvey, for the sum of five hundred dollars payable to said Bromham or order, which note fell due and was taken up by said Bromhamn, August 29th, 1851, and a certain other note, dated June 20th, 1851, drawn by us, payable to said Bromham or order, three months from date, for the sum of one hundred and fifty dollars; and whereas we are indebted to the said Judson in the sum of two hundred and thirteen dollars and thirteen cents, by our note, dated June 9th, 1851, payable to his order three months from date, and in the two separate sums of four hundred and eighty, and two hundred dollars by our notes, dated July 3d and July 28th, 1851, respectively, payable to his order on demand, and in the further sum of sixty dollars for said Judson's order on T. Benedict & Son, and in the further sum of one hundred dollars for said Judson's order on J. S. Arnold, and in the further sum of three hundred and thirty dollars, due to him from us by book; and whereas, we are legally bound to pay to said Mix, two notes drawn by Meshurul & Harvey, for the sums of three hundred and forty-nine dollars and fiftyeight cents, and seven hundred dollars respectively, both payable to said Mix's order, both dated January 27th, 1851, the one payable in four, and the other six months from date; and whereas, we are indebted to said Mix by book, in the sum of four hundred and eight dollars and thirty-three cents;

Harvey v. Mix.

and whereas, we are indebted to Peck & Harrison aforesaid, in the sum of one hundred and seventy-three dollars and two cents as nearly as the same can now be ascertained.

Now if we shall well and truly pay to said vendees and mortgagees, all said notes, and debts, and discharge all our aforesaid liabilities to them, then this bill of sale shall be void, otherwise not.

Dated at New Haven, this 1st day of September, 1851."

At the time of the execution of this instrument, the defendant held a mortgage upon a portion of the machinery, and implements of manufacture, in said establishment, which was given to him on the 27th of January, 1851, by Meshurul & Harvey, the then owners of said manufacturing establishment, to secure their four several notes for $1375, each of that date, and payable to said Mix, in one, two, three, and four years from their respective dates-which notes and mortgage were the same referred to in the aforesaid instrument of September 1st, 1851.

Upon the execution and delivery of said instrument, Sept. 1st, 1851, as aforesaid, the grantees, by their agents, Peck & Harrison, entered into possession of the property described therein, and by virtue of the powers therein granted to them, proceeded with the manufacture of the stock on hand, the sale of the manufactured goods and the collection of debts, appropriating the avails thereof in payment of the expenses of carrying on said business, and in settlement of the claims of the attaching creditors, and in partial payment of some of the workmen, who held claims against the said Harvey, Needham, Root & Co.

Said property remained under the direct management of Peck & Harrison, until on or about the 25th of Oct., 1851, when Mix, with the consent of his co-grantees, took upon himself the direction of the business and control of the property, and continued to hold the same in his hands, accounting to Peck and Harrison as agents of the grantees for his management, until about the 10th of December, 1851,