McNair v. Rewey

• Decision Date: 13 January 1885
• Citation: 62 Wis. 167,22 N.W. 339
• Parties: MCNAIR v. REWEY.
• Court: Wisconsin Supreme Court

62 Wis. 167

22 N.W. 339

MCNAIR

v.REWEY.

Supreme Court of Wisconsin.

Filed January 13, 1885.

Appeal from circuit court, Grant county.

January 10, 1883, J. T. Hicks and Robert Hicks, copartners under the firm name and style of J. T. Hicks & Co., made an assignment under chapter 80, Rev. St., to the plaintiff, and to his successors in trust, of all and singular the lands, goods, chattels, accounts, notes, bonds, bills, debts, choses in action, claims, demands, property, and effects, of every kind and description, real, personal, and mixed, belonging to them, or in which they had any right or interest, or which were held by any person or persons for them or in trust for them, (except such as were exempt from levy and sale on execution under the laws of this state,) the same being more fully and particularly enumerated and described in a verified inventory to be filed. On the same day, the assignee consented to take upon himself the faithful discharge of the several trusts specified in the assignment, (which was at the same time properly certified to,) and gave the requisite bond, and all of which were filed with the clerk on the same day. Within 10 days after the execution of the assignment, the requisite inventory of the assets and list of the creditors were made, verified, certified, and filed, as required. January 20, 1883, the defendant, as sheriff, claiming to act under and by virtue of three several writs of attachment against the property of J. T. Hicks, personally, each in favor of persons claiming to be creditors of said J. T. Hicks, personally, seized the property so assigned, and forcibly took the same from the possession of the plaintiff, and refused to return the same after demand being duly made. March 29, 1883, this action was commenced to recover the value of the goods so taken. The defendant answered and justified as sheriff under such attachments. On the trial the defendant testified to having seized the goods as such sheriff on such attachments, and to having realized from them $2,181.80; but none of the records or papers in the attachment suits seem to have been put in evidence. The jury returned a verdict for the plaintiff, and assessed his damages at $2,868.72, and answered two special questions submitted to them, to the effect that all the goods, notes, and accounts received by the plaintiff, as assignee, and which the sheriff attached, were the property of the firm of J. T. Hicks & Co., and were not the property of J. T. Hicks, individually. From the judgment entered upon that verdict the defendant brings this appeal.Bushnell & Watkins, for appellant.

Clark & Mills, for respondent.

CASSODAY, J.

From the repeated decisions of this court we must hold that the assignment was made by the firm of J. T. Hicks & Co., and transferred to the assignee the property of the firm for the benefit of the firm creditors, and was not an assignment of the individual property of either of the partners, nor for the benefit of the creditors of either of the individual members of the firm. First Nat. Bank of Madison v. Hinman, 21 N. W. REP. 280;Goll v. Hubbell, 20 N. W. REP. 674; S. C., as held on reargument, 21 N. W. REP. 288;Smith v. Bowen, 20 N. W. REP. 917. This being so, the question as to the effect of the exemption clause in the assignment is disposed of by the same decisions. The bond running to “A. C. Morse, clerk of the circuit court of the county of Grant, in the state of Wisconsin, and to his successors in office,” was a substantial compliance with section 1694, Rev. St., as we have just held in Bates v. Simmons, ante, 335, filed herewith. These are the only objections made to the form or execution of the assignment.

In view of the issues, we do not think there was any abuse of discretion in not allowing the defendant's counsel to further cross-examine the plaintiff, J. T. Hicks, as to the filling of the writing in the blanks in the receipts in the receipt-book kept by his firm. It is said to contain 99 different receipts, but neither the book nor such receipts had been offered in evidence. The witness had already been recross-examined in relation to substantially all the receipts he had specifically testified about upon his redirect examination. Counsel suggested no material object to be attained by such further cross-examination. The witness had testified to the existence of the partnership as a matter of fact. His reference to receipts given by some of the attaching creditors was obviously to show that they knew the fact of partnership. There is nothing to indicate that the further cross-examination proposed was in relation to such receipts. All other receipts had but a remote bearing at most. Possibly they might have indicated a course of dealing from which the non-existence of the partnership might have been inferred. But that was a matter purely defensive. Being purely defensive, it was discretionary with the court to allow the cross-examination to continue further or terminate it there. Norris v. Cargill, 57 Wis. 251;S. C. 15 N. W. REP. 148. In no view do we discover any abuse of discretion in the ruling made. One of the alleged partners, Robert Hicks, was sworn in behalf of the plaintiff. On...