Danby v. Sharp

STATEMENT OE TEE CASE.

It appears from the bill of exceptions that the machines were levied upon on the 27th day of July, 1874, and replevied on the same day, in the present suit by Danby, who asserted that he had purchased them from the said P. H. Welch. In his testimony, he stated that at the time of said purchase he was in the employment of Welch as his clerk, and that he received $10 a week for his services; that he purchased all the stock of said Welch, but did not pay any money, giving his promissory notes, to be paid in monthly installments; that he knew Welch owed several parties, and was indebted to the firm of Willett & Libbey on a judgment in their favor. He further states that he took possession and control of the store, and that he had paid Welch $1,000 in monthly installments from the proceeds of sales in the business,.and that he sold out to another party, who agreed to assume the debt which Danby owed Welch. One witness had frequently seen Welch about the premises; that there was no change in the business sign, which bore the name of Welch, and no means were adopted to give public notice of the change in the business. At the close of the testimony, the plaintiff asked the court to grant the following prayers :

2d. If thejury find from the evidence that the plaintiff transferred the property to one Furtner, and that he, Furtner, assumed the debt of the plaintiff to Welch, then the plaintiff is entitled to a verdict.

A verdict was returned in favor of the marshal. A motion was made in.the court below for a new trial but was overruled, and the case is now here upon the foregoing exceptions. The general term affirmed the judgment of the court below, as the facts in the pase show that the sale of the goods by Welch was colorable and fraudulent as against existing creditors of Welch, and the marshal was justified in seizing the goods.

Appleby & Edmonston for defendant, by whom the following authorities were cited:

Clement vs. Moore, 6 Wall., 312; see Smith’s Lead. Cases, vol. i, pt. 1, 34; Rosenburg vs. Claflin, 42 Mo., 450; Allen vs. Massey, 17 Wall., 351; Russell vs. Ely, 2 Black, 580; Trott vs. West, 10 Yerg., 499; Coil vs. Willis, 18 Ohio, 28; Wilkins vs. Gilmore, 2 Humph., 140; Cortwell vs. State, 18 Ohio, St., 479