Edgerton v. Smith, Engle v. Owen,. Earle, Bowman v. 18 Kennedy v. New York & Harlem East River Insurance Co., Wall v. 264 Keyser v. Harbeck, 69, 659 373 664 224 NOTE-The Reporter feels it his duty to state that in the compilation of the present volume he has been largely assisted by his associate, Mr. Justice Bosworth, by whom the Cases of Practice, and all those at General Term in which he delivered the judgment of the Court, have been prepared in the form in which they are now published. ARGUED AND DETERMINED IN THE SUPERIOR COURT OF THE CITY OF NEW YORK. RUFUS G. KEMP, Assignee, &c., v. THOMAS CARNLEY, An assignment made by one of two partners of all the partnership property and effects is valid, when it is proved that at the time of its execution the other partner was absent and had relinquished all control and management of the business of the firm. Such an assignment is not rendered wholly void by a preference given to an individual creditor of one of the partners, but the preference so given is void as against the creditors of the firm. A mortgage on "all the stock in trade of any nature or kind whatever" of a partnership, does not cover debts due to the firm. (Before OAKLEY, C. J., EMMET and HOFFMAN, J.J.) Nov. 18; Dec. 24, 1853. THIS was an action to recover the possession of certain goods and chattels particularly described in a schedule annexed to the complaint, and was brought by the plaintiff as assignee of George Stewart and James W. Patterson, composing the firm of George Stewart & Co., against the defendant as Sheriff of the City and County of New York. The defendant justified under certain executions and attachments particularly referred to in his answer against the property of George Stewart. The cause was brought to trial before the Chief Justice and a jury in February, 1852. The counsel for the plaintiff, upon the trial, produced and read D.-III. 1 Kemp v. Carnley. in evidence an assignment dated May 29, 1850, from George Stewart and James W. Patterson, composing the firm of George Stewart & Co., merchants, to the plaintiff, of all and singular the partnership property, together with all the debts, promissory notes, and demands due and owing to the firm, subject to a mortgage to one William Day for $6000 upon the following trusts; "To take possession of such property, goods, and chattels, subordinate to the right of said William Day, and as soon as may conveniently be done, to sell and dispose of the same at public or private sale, in the manner he shall deem most conducive to the interests of this trust, either in conjunction with said Day or otherwise, and after satisfying the full amount of the balance of said $6,000 now due and owing to said Day, with interest thereon according to the terms of the mortgage aforesaid, to him,-In the first place to pay all the expenses of exe-. cuting said trust, including the expenses of drawing this instrument, and all other expenses of employing counsel, and all auction expenses and clerk hire, together with a reasonable compensation to said party of the second part for discharging the duties of this trust. In the next place to pay all and singular the debts of the said firm of George Stewart & Co., contracted since the commencement thereof, on the first day of May instant, ratably and proportionably. In the third place, if there shall be any surplus, to divide the residue ratably and proportionably, to the extent of their respective claims, among those creditors of the said George Stewart whose debts were contracted prior to the first day of May instant." The assignment was under seal, and was signed, "George Stewart & Co., by J. W. Patterson ;" and it was proved that previous to its execution Stewart had absconded. The counsel for the plaintiff also produced and read in evidence the mortgage to Day, referred to in the assignment, which bore date on the first of May, 1850, and was signed and sealed by both partners. It covered the shawls, laces, &c., and the entire stock in trade of every name and nature now in the store, No. 379 Broadway, in the city of New York, the store occupied by the firm, and was conditioned to be void upon the payment of $6,000 with interest, thirty days from its date. A witness on the part of the plaintiff proved that on the day |