Ludlow v. Hurd & Sewall

iv., having Amghtcr of the liónT'went'To' residew'thher, himsei°f°k Tith her consent, the •entire management of the fa-head’. Having vent™Y. broke ment3eso!dhids charged his serresigned0’ the n!e family to the pjiaintiff,^ who, ■•the sole and eX-tion of 'the defrayed^a!°its Jürnüuréofjv. ■used'Tn^he-fa-except3bef°i& yiate, which was packed up dn boxes. The plaintiff, at the réquest of w., ¡notes, to a payabie^at'difío covenanted Tó ^henh0hey°be’ came due; and ■an consideration of the 'notes so given, -executed a .bill saI? t0 plaintiff-of h‘is plate and furniture in her house, the value-of which was much less 'than the amount of the notes. There was no other delivery of the furniture and plate than what waf °e lfiferred from^ the circumstances above stated: Heíd¡ that the possession of the furniture ¿nd plate was in the plaintiff,-and that there was no circumstance that rendered the transaction frauas ¿gainst creditors *, but that the same was bona fide¡ and for a valuable consideration.

THIS was an action of trespass, Szc. tried at the New-York sittings, in April, 18*20, before Mr. Chief Justice Spencer. John A. Willink and Daniel Willink were partners in jra(jej jn jVeto- York, under the firm of J. A. Willink & Co.; an(^ these two persons, and Charles Latham, composed the grm Gf £), J, A. Willink 4" Co. at Liverpool. The firm e * of J. A. Willink fy Co. of New-York, stopped payment, on the 7th of June, 1819, and the house of D. fy J. A. Willink <.?<• Co. on the 24th of April, 1819; and from those periods both houses were notoriously insolvent. D. <§• J. A. Wil- & Co. assigned all their property in trust for their ere-. ditors, who were to be paid rateably. John A. Willink, in Ccfoier, 1817, having married the daughter of the plaintiff, a widow, went to reside with her, in her house, and, with her consent, took upon himself the management of the family, as its head, until his failure, in June, 1819, when he broke up his establishment, sold his carriage and horses, discharged his servants, except such as were retainec* by the plaintiff, and gave up to her the management and government of the family; and the plaintiff, since July, 1819, has had the sole and exclusive management, and kept ® , * the house. The articles of furniture in use at the time T a VTr , , . , ... J. Jt. W. had the management, were continued in use in the same manner as before, but the plate was packed up in boxes, and not used at all. Since July, 1819, to the pretime, the plaintiff' has defrayed all the expenses of the household, hired and paid the servants, and provided for *be support and maintenance of the family; but except in the reduction of expenses, and the plaintiff taking a more . 4 . 1 0 active agency, there was no visible change in the conduct and management of the household, from October, 1817, until October, 1819, when, being in custody on civil process, J.A. W. removed within the limits of the gaol liberties, where he remained, until he obtained his discharge under the insolvent act, on the 5th of January, 1820; during which time his wife continued to reside with her mother. The name of J. A. W. was on the door-plate of the house, and was put there before he became the head of the family. On the 9th of September, 1819, John A. Willink executed a bill of sale to the plaintiff for the plate and furniture specified in a schedule thereunto annexed, which was valued at 5,500 dollars, though no value was affixed in the schedule ; the bill of sale recited, that the plaintiff had lent to him her six several promissory notes, payable, at different periods, amounting to 24,229 dollars and 33 cents, to John M. Ehrick, the holder of bills of exchange drawn by J. A. Willink <$• Co. on D. J. A. Willink <§■ Co., which had been protested for non-payment, and which, with the twenty per cent damages thereon, amounted to 41,066 dollars and 66 cents. That the said notes were lent'to J. A. W. by the plaintiff, on the express understanding, that J. A. W. should pay the same, as they respectively became due; and in consideration of the premises, and of one dollar, he absolutely sold and assigned and delivered to the plaintiff the said plate and furniture. J. ill. Ehrick, in consideration of the receipt of the notes of the plaintiff, transferred to her the protested bills of exchange. There was no other delivery of the plate and furniture referred to in the bill of sale, nor any change of possession than what was to be inferred from the facts above stated. The defendants having obtained a judgment on the 22d October, 1819, in this Court, in a suit commenced the 11th August, 1819, against J. A. D. Willink, on a bill of exchange drawn by J. A. Willink Co., caused a fieri facias to be issued, on the 4th November, 1819, and levied on the plate and furniture, mentioned in the bill of sale, then in the house of the plaintiff as above mentioned. It appeared that the plaintiff, on the 14th October, 1819, had caused a judgment to be entered up, on a bond and warrant of attorney, against J, A. W. and in the specification of the consideration of the bond, filed pursuant to the statute, the protested bills of exchange, delivered to her by Ehrick, were described; and, on this judgment, a fieri facias was.issued,. an<^ delivered to the sheriff, on the 21st October, 1819, and which was returned by him, nulla bona. It was admitted that the plate and furniture, so assigned to the plaintiff, had been in her house, and in her exclusive possession, from the, date of the bill of sale, so far as from the facts above stated she might be considered as in possession thereof. A verdict was taken for the plaintiff, subject to the opinion of the Court, on a case; and it was agreed, that if the Court should be of. opinion that the plaintiff was entitled to recover both the. plate and furniture, then the verdict was to stand ; but if the Court should be of opinion that the plate and furniture were: liable to the execution of the defendants, then judgment was to be rendered in their favour.