A garnishee's affidavit, as he makes his own case in it, must be construed most strongly against him. An assignment by one copartner of the whole copartnership property to a trustee for the benefit of the creditors of the firm, with preferences, without the knowledge and assent of the other copartner, who is present, and capable of attending to the common business, is void, as beyond the power of one member only of a copartnership. A subsequent bill of sale of a portion of the firm property to the assignee, who was a creditor of the firm, in payment of or security for his debt, was held good, although executed by one of the copartners, without the knowledge or assent of the other, as within the competence of one member only of the firm.
AMES, C.J.
Without the aid of the well settled rule, that the affidavit of a garnishee is to be construed most strongly against him, we think it fairly inferable from the affidavit before us, that the assignment in trust by Davis of the copartnership property of the defendant firm to the garnishee, under which it is claimed to be protected from this attachment, was made without the prior assent or subsequent ratification of Hathaway, the other copartner, who, though accessible, seems to have been purposely excluded from all knowledge or part in the transaction. He objected both to the assignment and to the bill of sale when first apprised of them; and the garnishee does not swear to any subsequent ratification of them by him, or to any fact or statement of his from which the court can infer it. Under such circumstances the assignment was void, as this court has frequently decided, and according to the clear weight of the American cases, well collated and reconciled in Hare and Wallace's Notes, 1 Am. Lead. Cases, 444-447, (ed. 1857.) In one case decided by this court, such an assignment was, as an unauthorized exclusion of the non-concurring copartner from the joint business, held to justify the court in appointing a receiver for the assigned property, with an injunction to the assignee not to intermeddle therewith, in order that the same might be distributed according to the rights of all interested therein, without regard to the deed of assignment.
The subsequent bill of sale of a portion of the copartnership property to the garnishee, in payment of, or, rather as he explains it, in security for the debt due from the defendants to Watson Field, which had been assigned to him, seems to have been within the competence of either of the copartners, without the knowledge or assent of the other; and must be held a rightful appropriation of the property embraced in it, so far as needed, to the payment of that debt. As the shop rent was not included in the bill of sale, it must have been received by the garnishee under the assignment. That, therefore, together with the balance of the proceeds of the goods embraced in the bill of sale, after deducting therefrom the debt of $112.06, which has been satisfied out of those proceeds, must be held by the garnishee, without further deduction than his customary allowance, subject to this attachment. If he had paid or incurred any expenses in the sale of the goods, they should have been distinctly set forth by him in his affidavit.
The writ, therefore, in this case, was well served, and judgment must be entered for the plaintiff, for the amount of his note and account here sued.