Widdall v. Garsed

Pee Curiam: This was a case for the jury. The learned judge below, in a clear and impartial charge, fairly submitted to them the question of the ownership of the property levied upon. He could not properly have withdrawn it from the jury as requested by the defendants’ fourth point. Nor was it error to refuse the defendants’ first and second points. To have affirmed either would have been equivalent to a binding instruction which, as before observed, would have been improper. Aside from this, the first point was so inartificially drawn, that the court could not have affirmed it under any circumstances. The learned counsel evidently intended to ask for an instruction that if the property assigned by John Garsed to A. L. Garsed, was not accompanied by delivery of possession, the assignment was void as against creditors, and the verdict should be for defendants. The last clause of the point, “the verdict should be for defendants,” is a very common and very dangerous addition. It often prevents its affirmance, when the law as stated in the point is entirely correct. In the point referred to, no question is raised as to the possession of the property assigned; it refers only to the “ business,” and in this respect we think it was defective. The familiar rule that an assignment to be good as against creditors must be accompanied by delivery of possession, refers to visible, tangible property. The “ transfer of the business ” is an uncertain, equivocal expression, [362] and may mean property, or it may mean good will. The affirmance of the defendant’s second point would have been clear error. ' The title of A. L. GarsecL could not have been defeated by the mere declarations of her assignor. Yet upon these the court below was asked to give a binding instruction in favor of the defendants. Judgment affirmed.