Opinion of the Court, per WRIGHT, J.

ment of the United States, or the State of Virginia, becoming the trustee or administrator of a fund donated by an individual for the furtherance of an object in no way pertaining to the administration of those governments. With regard to the trust to the Hebrew societies, it is so utterly vague and indefinite that it could not be executed in the English chancery without invoking its cy pres power: a power in case of charity, as has been held by this court, having no existence in the jurisprudence of this State. (Beekman v. Bonsor, 23 N. Y., 298.)

The judgment of the General Term of the Supreme Court should be reversed, and the judgment of the Special Term affirmed.

Judges DAVIES and PORTER concurred in the foregoing opinion of Judge WRIGHT. Judges DAVIS and BROWN concurred in holding that the trust failed under the laws of Virginia, without passing upon the question as to its validity as a charity under the laws of New York. BROWN, J., was also of opinion that the United States was incompetent to take as "devisee for purposes of general charity. Judge POTTER concurred in opinion with Judge Davis, but expressed his dissent from that portion of the opinion which held the trust void under the laws of New York. DENIO, Ch. J., and CAMPBELL, J., dissented.

The judgment of the General Term was reversed and judgment of the Special Term affirmed.

Statement of case.

Reffiring 24 NA), 5.72

- ALFRED BOOTH, Respondent, v. JEREMIAH S. BUNCE, JAMES ESLER, DELPHIN B. COBB, DANIEL MCLEOD and JAMES B. WINDLE, Appellants.

Where the managing members of an embarrassed corporation unite in forming a new one under the general law, and then transfer to it the property of the former; and a judgment creditor of the former corporation issues an execution upon his judgment and levies the same upon the property so transferred, and becomes himself the purchaser at the sale under such execution; and a judg ment creditor of the latter corporation afterwards levies his execution upon the same goods as the property of the latter corporation, in an action by the former judgment creditors against the latter, for taking such property, the question whether the latter corporation was formed by the acting members of the former, to hinder, delay and defraud their creditors, may be raised and submitted to the jury on proper evidence.

The question as to the fraudulent purpose of such second corporation involved in such inquiry, being submitted to the jury, their finding thereon is conclusive. When such second corporation has been formed by the acting members of the former one, and the property thereof has been transferred to the latter, to hinder, delay and defraud the creditors of the former, the property thus fraudulently transferred is still liable to be taken on execution as the property of the former corporation.

It seems, that though a corporation thus fraudulently created, is void as to the bona fide creditors of the former corporation, it may be treated as a valid corporation by the bona fide creditors of the latter.

In this action the equities of the plaintiff and of the defendant were considered equal, but the plaintiff had the possession. Therefore the maxim, Qui prior in tempore, potior est in jure, was applicable and decided the case.

APPEAL from General Term of the Supreme Court, second district. The following is a statement of the facts:

The plaintiff, Alfred Booth, is the creditor of the late firm, composed of William Montgomery and William Garrabrant, upon two promissory notes for $965.32 each, dated January 1st, 1855, made to one Isaac Reeve, or order, and by him. indorsed over to the plaintiff. Upon these notes he recovered a judgment against Montgomery & Garrabrant for $2,268.38, which was filed and docketed in Westchester county clerk's office December 17th, 1859. Reeve, the payee in the note, had been copartner of Montgomery in the machine manufacturing business at Yonkers, in the county of Westchester.

Statement of case.

This firm ceased to exist on the 1st January, 1855, and the notes were given for Reeve's interest in the business. Garrabrant continued a partner with Montgomery until the spring of 1856, when he retired, and the business was carried on by Montgomery and George D. Lund, under the name of Montgomery & Co. The New York Steam Saw-mill and Machine Company became incorporated under the statute on the 20th of October, 1857, by a certificate of that date, duly executed and filed in the clerk's office of the city and county of New York, and a duplicate filed with the secretary of State. This certificate is executed and acknowledged by William Montgomery, Jesse M. Emerson, George D. Lund, Asahel R. Jones and Appleton Oaksmith. On the 21st of October of the same year, Montgomery and Lund made two bills of sale of the stock, property and machinery of the firm at Yonkers, to the New York Steam Saw-mill and Machine Company, who thereupon, and from thence carried on the business of manufacturing machinery, steam engines, &c., in the same place, in its own name, Montgomery superintending and managing the business as the professed agent of the company. After this the company contracted debts and incurred obligations in the course of its business, and manufactured and constructed machinery and steam engines. On the 19th December, 1859, Alfred Booth, the plaintiff in this action, issued an execution upon his judgment against Montgomery & Garrabrant, to the sheriff of Westchester county, who thereupon levied upon the property in the company's machine shop, including the engine in question, and sold the same to Alfred Booth, who thereupon claimed to be the owner thereof. · This engine he afterwards sent to No. 222 Pearl street, New York. In the meantime, the New York Steam Saw Mill and Machine Company had become indebted to the defendants Jeremiah S. Bunce, James Esler and Delphin B. Cobb, composing the firm of J. S. Bunce & Co., in the usual course of business, for steam boilers furnished, and on other accounts, which indebtedness assumed the form of a judgment in favor of the firm for $2,513.58, and was docketed and filed in the proper office of the city of New York, on the 31st of March,

Statement of case.

1860. Upon this judgment an execution was issued against the saw-mill and machine company to the sheriff of the city and county of New York, on the same day, by virtue of which he levied upon the steam engine in question at No. 222 Pearl street, New York, and sold and delivered the same to the defendants Daniel McLeod and James B. Windle. The present action is brought to recover the value of the engine.

The plaintiff claimed title to the engine under his judgment and execution against Montgomery & Garrabrant, and a sale thereon to himself, on the ground that the "Steam Saw-mill and Machine Company" was a mere fraudulent organization and device got up to defraud the creditors of "William Montgomery & Co.," and that the business carried on under this corporate organization was for the same purpose. The defendants, it seems to be conceded, were bona fide creditors of "The Steam Saw-mill and Machine Co.," and claimed title to the engine in like manner as judg ment and execution creditors of that company under a sale of the engine as their property. Among the property transferred by Montgomery & Co. to the said corporation was the bed-plate and cylinder of the engine in question. In the spring of 1859, this corporation seems to have discontinued their corporate action; and William Montgomery, who had, during its existence, been its president and principal agent, put up his own sign at his place of business in New York, "Wm. Montgomery, Yonkers Machine Works," but leaving up also a small sign of the saw-mill company on the panel of his door. He dropped the name of the company, in the transaction of business, in July, 1859, and his articles were afterward labeled with his own name, or "William Montgomery & Co.," Machine Works, Yonkers. Some small amount of work had been done upon the engine in question while the name of the corporation was used, and it was completed after he resumed business in his own name. The nominal capital of the corporation so formed was $250,000. No part of this appears to have been paid in cash. Its only actual capital consisted in

Statement of case.

the assignment to it of the stock of William Montgomery & Co., together with some old machine patterns, and the good will of the firm of Emerson & Co., who became corporators in the organization. Montgomery & Co, at the time of this organization and transfer of their assets, were embarrassed with debts, and Emerson & Co. had then lately. failed in business. Emerson & Co., previous to their failure, had been the agents for Montgomery & Co. in the sale of their manufactured machinery. The stock of this new company was chiefly used in payment of, or as collateral security for the payment of its debts and of the debts of Montgomery & Co. While Montgomery was the president and principal active executive managing agent of the corporation he was the owner of but one share of its stock, and Lund, his late copartner, the owner of but one other share. When the testimony closed, the defendants' counsel asked the court to dismiss the complaint on the ground:

First. That there was not sufficient proof in the case to put to the jury the question whether the saw-mill company was formed to defraud the creditors of Montgomery and Lund. This motion was denied and the defendants' counsel excepted.

Second. That there was not sufficient proof to put the question to the jury, whether the saw-mill company was formed to hinder, delay or defraud the plaintiff, Booth. The motion was denied on this ground, also, and the defendants' counsel excepted.

The defendants' counsel then requested the judge to charge the jury upon various legal propositions, to the three first of which the judge charged as requested. The fourth proposition was, "that if fraud be found by the jury, then the plaintiff purchased the property subject to the debts of the company, and the engine in question was still liable to be levied upon by the company's creditors, and such levy could not be resisted in this action. The court refused so to charge, because the request was immaterial in this action, and the defendants' counsel excepted.

Fifth. If the jury find that the company was formed by Montgomery and Lund to defraud their creditors, the plaintiff