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(7.) ASSIGNMENTS AND TRUSTS.

(No. 34.)

Complaint by a receiver in the nature of a creditor's bill, and to set aside an assignment as fraudulent.1

SUPREME COURT-COLUMBIA COUNTY.

William A. Porter

agt.

Richard F. Clark and John L. Williams.

The plaintiff complains of the defendants, and shows to the court that heretofore, and on or about the 27th day of February last past, the Dutchess County Iron Company duly recovered a judgment in this court, in their favor, as plaintiffs in such action, against the defendant, John L. Williams, who was defendant in such judgment, for the sum of $508.32, which said judgment was duly docketed, and the judgment roll in same duly filed in the office of the clerk of Columbia county, on the 27th day of February last past, as will more fully appear by reference to the

same.

1 The action is brought by the plaintiff, as receiver, appointed by a judge, in proceedings supplementary to execution. The Court of Appeals held that an action could be maintained by him, to set aside a fraudulent assignment of real as well as personal property, inasmuch as he represents the creditors, and does not stand merely in place of the debtor (5 Selden, 142); overruling decisions, at General Term, in Seymour v. Wilson (16 Barb., 294) and Hayner v. Fowler (16 Barb., 300 ).

2 The plaintiff's character, as receiver, might properly be inserted in the title. I give the complaint, however (with some trifling omissions of irrelevant matter), precisely as it is set forth in the printed case.

That on the 28th day of February last past an execution upon said judgment was duly issued, against the property of the said John L. Williams, to the sheriff of the county of Columbia, that being then, and ever since, and still the county of the residence of the said John L. Williams, which said execution was afterwards duly returned by said sheriff, to the clerk's office in said county, unsatisfied in whole or in part.

That after the return of such execution, as aforesaid, proceedings supplementary to such execution, in behalf of the plaintiffs in such judgment, were duly instituted against the said John L. Williams, in accordance with the provisions of the Code of Procedure in such case made and provided, under and by virtue of which proceedings, and by an order duly made therein, the plaintiff in this action was duly appointed receiver of the property, estate and effects of the said John L. Williams, with the usual powers in such cases made and provided and conferred, under and by virtue of an order made in said proceeding by Hon. IRA HARRIS, one of the justices of this court, and bearing date the 4th day of April, 1850.1 That the consideration on which such judgment was recovered accrued prior to the 1st day of January, 1850, as plaintiff is informed and believes, and so alleges.

That on the 5th day of January, A. D. 1850, and for a long time prior thereto, the said John L. Williams had been the owner of, and had in his possession, a large amount of property, both real and personal, and had due to him divers amounts of money from divers individuals,

1 To recover, as receiver, it is necessary to allege in legal form, that the plaintiff was appointed receiver of the property, &c. The time, place and manner of appointment are traversable facts, and should be stated. (White, receiver, &c., v. Miles and Joy, 11 How., 36); see also Sheldon, administrator, v. Hoy, 11 How., 11; Pleadings, 291.)

as well as promissory notes and other instruments for securing the payment of money, more than sufficient in amount to pay and satisfy the claim for which the aforesaid judgment in favor of the Dutchess County Iron Company aforesaid was recovered.

That on or about the 5th day of January last past, and while the said John L. Williams was so possessed of such property as aforesaid, he, the said John L. Williams, by an instrument under his hand and seal, executed and delivered to the defendant, Richard F. Clark, a certain instrument of assignment and trust, bearing date the day and year last aforesaid, a copy of which said instrument is hereto annexed and marked Schedule A,' and which said copy this plaintiff prays may be referred to, by him, and taken as a part of this his complaint.

That upon the execution of the said instrument, as last aforesaid, he, the said Richard F. Clark, took possession of all of the real estate of him, the said John L. Williams, together with certain of his personal property, books of accounts, claims and demands, notes, evidences of debt and choses in action, and has ever since that time, and still does, pretend to hold the same, and to be entitled to hold and sell and convey the said property, and collect the said accounts, claims, demands and notes and other evidences of debt, for the purposes in said instrument mentioned, and has sold a portion of said property, and collected a part of said accounts, claims and demands, and notes, and paid over a portion of the avails thereof, in accordance with the terms of said instrument.

That the whole amount of the aforesaid judgment, in

The substance and terms of assignment will sufficiently appear from the statement in the reported case. (5 Selden, 142. )

favor of the said Dutchess County Iron Company, and against the said John L. Williams, is, as this plaintiff is informed and believes, and so alleges, still due and unpaid, except as hereinafter mentioned.

That this plaintiff has become, under and by virtue of the said order, so made as aforesaid, and still is, the receiver of the property, estate, effects and choses in action of the said John L. Williams, and has duly executed the security, as such receiver, required in and by the aforesaid order, so made as aforesaid by the Hon. IRA HARRIS, and filed the same in the office of the clerk of the county of Columbia.

That the aforesaid instrument, so made and executed as aforesaid to the said Richard F. Clark by the said John L. Williams, is fraudulent and void as against the creditors of the said John L. Williams, and particularly as against the aforesaid judgment in favor of the said Dutchess County Iron Company, and as against this plaintiff as such receiver as aforesaid,' and was made with intent to hinder, delay and defraud the creditors of the said John L. Williams of their lawful suits, debts and demands, and was made so to hinder, delay and defraud the aforesaid Dutchess County Iron Company in particular. That, at the time of the

1 The complaint contained, in this place, the following further allegation, which I have omitted as being clearly argumentative, and a mere statement of the legal effect of the instrument itself, and, therefore, irrelevant :

"That the same is so fraudulent and void, inasmuch as there is not a sufficient description therein of the real estate of the said John L. Williams to pass the title to such real estate, and that no title to any of the lands hereinafter mentioned passed, by the execution of the aforesaid instrument, to the said Richard F. Clark, and that said Clark did not acquire any title or interest in any lands or real estate of which the said John L. Williams was seized at the time of the execution of the aforesaid instrument."

execution of the aforesaid instrument by said Williams to the said Clark, he, the said John L. Williams, was seized and possessed of certain real estate, situate in Columbia county, consisting of the following, to wit, &c. [Describing the property.] All of which said real estate, he, the said Clark, claims has passed to him under the said instrument, so executed to him by the said John L. Williams as aforesaid.

That a portion of said real estate is advertised for sale by the said Richard F. Clark, and that said Clark claims and exercises, as plaintiff is informed and believes, full power, authority and control over all of the aforesaid property, both real and personal, and the effects and choses in action of the said John L. Williams, and claims to dispose of the same, as in and by said instrument is provided, and, as this plaintiff is informed and believes, and so alleges, will so dispose of the same, unless prevented by the order of this court, and to the great injury of this plaintiff as such receiver as aforesaid.

Plaintiff further shows that, as he is informed and believes, and so alleges the fact to be, after the issuing and return of the execution, as above set forth and described, and on or about the 11th day of April, inst., another execution against the property of the said John L. Williams was issued, upon the aforesaid judgment, to the sheriff of the county of Columbia. That, at the time of the issuing of the same, Samuel Bryan was indebted to the said John L. Williams in the sum of $191.35, or about that amount, on account for groceries and merchandise sold by said Williams to him, the said Samuel Bryan, prior to making of the aforesaid assignment by the said Williams to the said Clark, and which said account is one of the demands, due to said Williams, which said Clark claims to be entitled to collect and receive as such assignee ás aforesaid.

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