
    CALDWELL C. DUKE, Respondent, v. JOHN H. WELSH, Appellant.
    
      Assignment in fraud of creditors—gwy may consider nature of consideration—if promissory notes, that holders cannot recover except upon ponding with new consideration.—Judge's cha/rge.—Conversion—will not lie when chattels have teen allowed to he intermingled with property of another sold on execution.
    
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.
    
      Decided December 19, 1881.
    Appeal from a judgment entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial on the judge’s minutes.
    
      Action for alleged conversion of stock and fixtures of a men’s furnishing store on February 3, 1876.
    The plaintiff gave evidence that prior to the conversion complained of, he held his father’s notes for $1,652.84, or including interest in February, 1876, for $2,252.84, being the balance due him for five years’ salary, as clerk in his father’s store, and for which a bill of sale was made to him by his father on January 15, 1876, inventoried at $3,452.86, being for the stock, &c., in said store. In addition , to this the plaintiff says he had taken as part payment from his father, at various times, sewing machines, a mirror and other-articles of the value of $200 or $300, which remained in the’ store at the time the goods were seized. The consideration of this transfer of his father’s property was the surrender of these old notes, and the son giving his notes for $1,200 at three and twelve months to run. These notes were immediately disposed of by the father giving $500 to Mr. Schell for interest past due on a mortgage on property owned - by his wife, and the remainder turned over for the benefit of members of his family, andón account of pre-existing debts, no new consideration having been given therefor. Thereafter said stock, &c., were sold by the" sheriff to satisfy a judgment obtained by John H. Welsh, the defendant herein, against plaintiff’s said father, said Welsh indemnifying the sheriff. At the request of the defendant the court charged, “ If the sale and purchase in question (between plaintiff and his father) were made with the intent to hinder, delay or defraud the creditors of John F. Duke, the notes which were given on account of the purchase by the plaintiff could not be recovered upon by John F. Duke.” The defendant then requested the court to charge further, “Hor could the notes be recovered upon by any person to whom they had been transferred on account of the antecedent debt, and who had not parted with some new consideration therefor.” The court refused so to charge, and the defendant duly excepted. A further request was then made by the defendant to charge, “ Under the evidence in this case none of the present holders of the notes so given by the plaintiff can recover upon them, if the transfer to him by his father was fraudulent, and his title to the goods fails.” This was also refused, and defendant excepted.
   The court at General Term held, “We think this was a proper request and should have been granted by the court. The facts and circumstances as disclosed are clearly in accord with, and are governed by the decision in this court in Starin v. Kelly (36 Super. Ct. 366).”

The court was requested by defendant to charge, That the plaintiff claimed all the property levied upon by the sheriff, and did not point out, or distinguish the articles claimed to have been owned by him prior to the bill of sale; and the plaintiff is not entitled to recover for those articles unless he is entitled to recover for the whole property levied upon.” The defendant duly excepted to the refusal so to charge. The plaintiff swears that these goods belonging to him before January 15,1876, were there at that time, and continued there until February 3, following, when they were seized by the sheriff and sold. They were held in store for ten or twelve days, and he was there part of the time, and the defendant Welsh was there. He heard Mr. Welsh give directions to the sheriff or to the man in charge; “ calling them his goods.” The plaintiff did not point out, or distinguish the articles claimed to have been owned by him prior to the bill of sale.

The court at General Term held: “We think the ■ request should have been granted. The rule of law and equity is said in the books to be strict on such occasions as this. The plaintiff was present, hearing the defendants calling all the goods his own, which fact was not true, according to all the testimony in the case. If a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of ,the confusion must be thrown upon him who produces it, and it is for him to distinguish his own property, or lose it. The effect of the confusion of the title to the kinds of the goods levied upon is this : unless it was pointed out to the jury, they might easily have believed that at any rate, the plaintiff was entitled to recover his own goods, as he had not bought them from his father; and upon thinking about it, that the taking of these' was clearly wrong; a prejudice would be created, and they might further think, that the taking of the other class of goods was wrongful, because they were taken at the same time that the goods which really belonged to the plaintiff were seized. I think a still stronger reason why the charge should have been entertained is, that the plaintiff knew perfectly well that the goods were his own, and he was guilty of a plain violation of law and equity by keeping silent on the subject, which has resulted in a verdict not authorized according to any principle of law or justice, and for that reason a new trial should be had.”

Vanderpoel Green & Cuming, for appellant.

H. E. Averill and W. T. B. Milliken, for respondent.

Opinion by Speir, J.; Sedgwick, Ch. J., concurs ; Freedman, J., concurs in result.

Judgment and order reversed, costs to abide event, and new trial ordered.  