TO THE READER. In the back part of this volume is a full alphabetical Index Any particular case can be easily found by looking in the viii UNIV. OF COMMERCIAL PRECEDENTS. ASSIGNMENTS. (SEE ALSO INSOLVENCY.) 1. In 1875 A made an assignment for the benefit of his creditors. The assignment was duly filed in this State (N. Y.) and New Jersey, and the assignee settled with all the creditors by compromise. One party held notes against A, who also signed the compromise and re ceived his dividend, but did not surrender the notes by some inadvert. ence. A now fears that this party may or has assigned these notes to other parties, and these parties may, at some future time, demand payment, notwithstanding that the original holder received the dividend and signed the general release. The assignee was not aware of the existence of these notes, A merely putting the amount of the indebtedness on the schedule: neither did the assignee advertise to limit creditors, there being so few and all known. Now what course would it be best to take? Have the assignee advertise, or let it remain in abeyence, the assignee still holding all the papers? A. If the debt was properly discharged under the assignment, the notes are worthless. No one can take them after their maturity and acquire a title to them, however innocent he may be, as they cease to be negotiable, and the receiver takes a note after it is due subject to all the equities between the original parties. If A is uneasy he can compel the delivery of the notes, or a statement that they are destroyed. 2. A party takes extension, and gives notes secured by a mortgage on real estate. The last note is protested, the party having assigned. Can an individual creditor compel the trustee to have the mortgage foreclosed at once? Or must there be unanimity among the creditors? Debtor lives in Ohio and the property is situated there. A. On the motion of a creditor the courts will compel the trustees to foreclose, if no good reason can be shown to the contrary. 3. A broker fails and makes a general assignment of all his effects for the benefit of his creditors. Among his creditors is an insurance company, having to his credit on its books an amount of script which previous to his failure he had sold and received pay for, but neglected to transfer. Now has that insurance company a right to take that script in payment of its claim, or does it belong to the party who bought and paid for it? A. We understand the scrip to be negotiable, and if the certificate was sold and delivered in good faith, the buyer would have a title not subject to the private account between the company and the broker, even though it had not been transferred on the books of the corporation. 4. A party made an assignment to assignee selected by creditors of all stock on hand, for which they signed a paper to release party from all claims Then the assignee sold the stock and received about $375 for same at auction, he has offered the dividend to the creditors, but being so small none have called to get same, and it is now over five years. In two years the claims will be outlawed. Please let me know what is to be done with the money, does it go back to the party making assignment at the time, or what is to be done with it? A. It would be unsafe for the assignee to make this decision for himself, or we for him. His proper course is to apply to the court having jurisdiction for an order discharging him from the trust, or otherwise making disposition of the funds. 5. B makes advances to A on warehouse receipts of merchandise in store to two-thirds the value of goods. A gives C, a creditor, a regular assignment of the margins on those goods. D, a creditor, obtains a judgment and attaches the margins. The question is, who is entitled to the surplus when goods are sold, Cor D? In other words, will a judgment preclude the assignment? A. The preceding assignment, if legal and regular, will hold the surplus. 6. MICH.-A party in Michigan makes an assignment; will an attachment on goods hold, providing bonds of assignee have not been filed ? A. The Michigan insolvent law vests all the property of the debtor in the assignee from the execution of the assignment, which, on being recorded, is allowed the same effect as a deed of real estate, without reference to the assignee's bonds, of course therefore the property cannot be attached by any creditor, under the State law, after that time. ATTACHMENTS. 1. How can a judgment be collected from a clerk who draws his salary weekly in advance? Is there any process by which his em ployers can be made to disclose what wages he is receiving, and withhold a portion each week until the debt is paid ? A. The attachment process can only be employed where something is owed by the attachee or employer to the judgment debtor, and we know of no process by which unearned wages can be reached on execution. 2. We wish to secure a debt of a large amount by suit in the Su. preme Court of this State (N. Y.). The defendant being a nonresident, we propose to attach his property, and would like to know what an attachment will cover besides his stock. Will it apply to his cash in bank, and to what collections he may make from his customers after the date of the issue of the attachment? A. If a general bank deposit were held to be in specie, the property of the depositor, there would be no question on the subject; but, the courts holding it to be a mere debt, this seems to lead to the conclusion that such a deposit, due a non-resident, is not property within the State capable of attachment. Section 648 of the Code of Civil Procedure, according to Commissioner Throop, was prepared with great care, in the hope of settling most of the puzzling questions with respect to the attachment of debts, but though the section declares that a cause of action arising out of contract may be attached, and specifies various classes of obligations made by non-residents as capable of attachment, yet it does not in terms cover the case of a debt due a non-resident. This reasoning applies equally to both branches of the inquiry presented by our correspondent, unless the collections may be reached in the shape of actual property of the nonresident debtor, and not in the character of a debt due him. Nevertheless, both cases seem to be fairly within the principle in Russel v. Ruckman, 3 E. D. Smith, 419, where the court upheld the attachment of a promissory note made by a resident, payable to the non-resident debtor in the attachment proceedings. If a note, being mere evidence of a debt, can be thus attached, there seems to be no sufficient reason why a non-resident's bank balance cannot be held; and we accordingly believe that, following that decision, both balance and collections can be so covered. |