Smith v. Mitchell

12 Mich. 180, 1863 Mich. LEXIS 87

• Court: Michigan Supreme Court
• Decided: December 5, 1863
• Status: Published

Opinion

By the Court:

The assignment is not void on its face for excepting property. exempt from execution, without specifying it. A. bona fide selection is as practicable here as under a levy.

Evidence that goods were at the railroad depot, directed to the insolvent firm, which they claimed and disposed of after the assignment, was improperly excluded, as it had a bearing on the good faith of the assignment as a general assignment.

The sale of said property by the firm, and evidence showing the assignee’s knowledge and consent, should not have been excluded, as it bore upon the question of fraud.

Evidence of what the property brought at auction is admissible, as having some tendency to prove value.

Evidence that the property levied on was held and sold under a former levy, was admissible to show that the constable had not damnified the claimant, and had not converted the goods.

Evidence that goods levied on were sold for charges which were a prior lien, would discharge the constable from any liability on account of those goods, on two grounds: first, that they were incumbered to their value; second, that he never took or converted them; the lien being adverse, and he never completing his levy by possession.

The Court erred in not charging that the assignment was void if it did not fairly bona fide assign all of the assignors’ property liable for the payment of their debts.

Judgment reversed, and new trial ordered.