Smith v. McCulloch

42 Wis. 564

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

LyoN, J.

This case is ruled by that of Churchill v. Whipple, 41 Wis., 611, in which it was held that a voluntary assignment for the benefit of creditors, or with a view to insolvency, is invalid under the statute, unless it be shown by the affidavits of tbe sureties in tbe assignee’s bond, that they have property within this state worth the sum specified in the bond.

The learned counsel for the respondent argues, that, in the absence of any affirmative evidence that the affidavit of the sureties annexed to the bond was the only affidavit of justification made by them, there is a presumption, in favor of the validity of the assignment, that the statutory affidavit was made by them, notwithstanding their affidavit annexed to the bond, and the only one read in evidence, is fatally defective.

It may be that such would be the legal presumption, were the record silent on the subject; but here the'record discloses that the sureties did not make the required affidavit, by disclosing what affidavit they did make. Bohlman v. Railway Co., 40 Wis., 157, 168, and cases cited.

It is further claimed that the exceptions are insufficient to raise the question of the sufficiency of the affidavit; but we think the exceptions are sufficient for that purpose.

By the Court. —The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.