Page images
PDF
EPUB

JULY 1829.

Robinson.

ROBINSON V. RAPELYE and SMITH, survivors, &c.

Rapelye and

Smith.

2s 86 103 312

1. The answer of a garnishee in attachment is to be taken as strictly true;

and if a deed is appended, it is to be considered as genuine; unless the an.

swer be traversed. 2. A deed of assignment by a debtor of all his effects for the benefit of all his

creditors, is not void on account of the debts and property not being par.

ticularly described and specificd. 3. Such deed will be operative against an attaching creditor bere, though

made in New-York. 4. A debtor has a full right to prefer some creditors to the exclusion of others;

and may lawfully stipulate ihat those who accept the property conveyed

shall release him; the contract being voluntary. 6. The insolvency of the debtor does not vary these rules; no bankrupt law

being here in existence.

On the 4th of June 1924, Franklin Robinson sued out an original attachment against Daniel Rapelye and William Smith, as surviving partners of the late firm of Lawrence, Rapelye, & Co. of New York, (John T. Lawrence having previously died,) to recover $2213 58, which he claimed of said firm as balance of an account current. The attachment was returned to the Fall term of Marengo Circuit Court. The sheriff returued that there was no property of the defendants in his county to be found, but that he had on the 14th July, 1824, attached the amount in the hands of the firm of Glover, Gaines, & Co. and of the firm of Glover & Gaines; and that he had summoned them to appear and answer as gurnishecs what they were indebted to the defendarts in the attachment. A duplicate writ of attachment was issued to Greene county, and Thomas H. Herndon of said county appeared as a garnishee.

At March Term, 1895, Glover, Gaices, & Co. filed their answer as garnishces; in which among other matters they stated, that they were indebted to the late firm of Lawrence Rapelye & Co. in the sum of $605 63 due by open account; but further stated that before the attachment was sued out by the plaintiff "they were notified by letter from Thomas Lawrence and others, representing themselves to be the assignees of Lawrence, Rapelye, & Co. of the failure of said Lawrence Rapelye, & Co. and that the debts and effects of said Lawrence, Rapelye, & Co. had been assigned to them for the benefit of their creditors, which said assignment is hereunto annexed.” (See copy in note A.) (A.) Copy of the deed of assignment and accompanying certificates of probate, &-c.

(L S.) United States of America, State of New York. By this Public intrument be it known to all whom the same doth or may

JULY 1829.

At March Term, 1827, Thomas H. Herndon filed his answer as garnishee, stating that he was the agent of sever

Robinson al creditors to collect debts due from the firm of I. & T. Crowell; that he had been authorized by all the creditors Rapelye and

Smith. concern, that I, Augustus Floyd, a Public Notary, in and for the State of New York, by letters patent under the great seal of said State, duly commissioned and sworn; and in and by the said letters patent, invested "with full power and authority to attest deeds, wills, testaments, codicils, agreements, and other instruments in writing, and to administer any oath or oatlıs, to any person or persons;” do hereby certify, that the annexed is a true copy of a certain original indenture of assignment produced before me, and duly proven before Robert L. Wilson Esquire, a commissioner for that purpose appointed; and I do further certify, that the certificates of the proof of the said indenture of assignment, on the said Indenture endorsed, (of which said certificates copies are hereunto annexed,) are the true and proper certificates of the said Robert L. Wilson, and that the said Robert L. Wilson is a commissioner duly appointed according to law, to take the proof and acknowledgement of deeds &c. and that his said certificates ought to have full faith and credit, and that all deeds and instruments in writing by him certified to be proven as aforesaid, are entitled to be read in all Courts of Justice. Whereof an attestation being required, I have granted this under my notarial firm and seal. Done at the city of New York in the said State of New York, the seventh day of April in the year of our Lord one thousand eight hundred and twenty-four. In Præmissorem Fidem.

AUGUSTUS FLOYD, Public Notary.
Indenture of assignment.

This Indenture, made this sixth day of August in the year of cur Lord one thousand eight hundred and twenty-three; between John T. Lawrence, Daniel Rapelye, and William R. Smith of the City of New-York, merchants, composing the mercantile house, or firm of Lawrence Rapelye and company, of the first part; Peter Remson, Thomas Lawrence, and Benjamin Smith of the same city merchants, of the second part; and the several other persons whose hands and seals are hereunto subscribed and affixed, creditors of the said Lawrence, Rapelye and Company of the third part, witnesseth; that the said parties of the first part, for and in consideration of the sum of one dollar, lawful money of the United States of America, to them in hand paid at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for other considerations, have bargained, sold, aliened, released and confirmed, and by these presents do bargain, sell, alien, release and confirm unto the said parties of the second part, and to their heirs and assigns, all and singular the lands, tenements, and hereditaments belonging to the said parties of the first part, jointly, situate in the State of Georgia, or in the State of Alabama; and the reversion and reversions, remainder

re mainders, rents issues and profits thereof, and all the right, title,

JULY 1820 among whom were Lawrence, Rapelye, & Co. to compound

with the said Crowell's for a gross sum, subject to distribuRobinson

tion among them in proportion to their demands; that he Rapelye and had done so, and received debts and notes payable to him Smith.

estate, property, interest, claim and demand whatsoever, both in law and equity, of them the said parties of the first part, of, in and to the same, with the appurtenances; to have 'and to hold the same and every part and parcel thereof with the appurtenances, unto the said parties of the second part, their heirs and assigns forever, as joint tenants, and not as tenants in common; and all deeds, evidences, and writings concerning or touching the same: In trust nevertheless, and to and for the uses and purposes hereinafter mentioned.

And this Indenture further witnesseth; that for the aforesaid considerations, the said parties of the first part, have bargained, sold, assigned, transferred and set over, and by these presents do bargain, sell, assign, transfer and set over unto the said parties of the second part, their executors, administrators and assigns, all and singular the goods, wares and merchandize, bills, bonds, notes, and other securities for money, debts, moneys, stock in trade, chattels and personal estate and effects whatsoever, and wheresoever, which the said parties of the first part are jointly possessed of or interested in, or entitled to as partners of the said mercantile house or firm of Lawrence, Rapelye and Company, and not otherwise; together with all Books of account, vouchers and other papers in any wise concerning the same; and all the estate, right, title, interest, claim and demand whatsoever of the said parties of the first part, of in and to the same. To have and to hold the same to the said parties of the second part, and the survivors and survivor of them, and their or his assigns, and to the executors and administrators of such survivor for ever: In trust nevertheless, and to and for the uses and purposes hereinafter mentioned. That is to say, upon the trust, with all convenient speed, to sell and dispose of and convey, all the said real and personal estate and property hereby conveyed and assigned, at such prices, and on such terms as the said parties of the second part, or the survivors or survivor of them, or the executors or administrators of such survivor, may deem expedient; and to collect in the discretion of the said parties of the second part, the survivors or survivor of them, or the executors or administrators of such survivor, the said debts, or sums of money, and all other the premises hereby assigned: And out of the trust moneys which shall come into their or his hands, or the hands of either of them therefrom, in the first place to retain and re-imburse themselves ali costs charges and expenses whatsoever, which they respectively shall or may sustain, expend or be put to, in preparing these presents, or in and about the execution of the trusts hereby reposed in them, or otherwise relating thereto: And in the second place, out the residue of the said trust money's, from time to time as the same shall be received in sufficient sums, for distribution, to pay and satisfy pari passu, and without preference or priority, to Samuel Clarke, of Augusta, in the State of Georgia, the sum of three hundred dollars due for rent &c; and

JULY 1829. in his own name but for their account; that he had in his hands $1824 82 as the share due to Lawrence Rapelye Robinson & Co. or their assignees, out of said fund, subject to a deduction of about $200, for his services and expenses of col- Rapely, and

.

V.

to such of the several persons, or mercantile firms, named in the schedule hereunto annexed marked A, as within thirty days from the date hereof shall execute these presents, the several debts and responsibilities or engagements referred to in the said schedule A, not exceeding the amounts set opposite their respective names in the said schedule, which the said parties of the first part now owe to the said persons or mercantile firms, or which the said persons or mercantile firms respectively may hereafter pay and discharge: and also to pay and satisfy in like manner any interest that has acerued, or may accrue on the same amounts or any part thereof: and in the third place, out of the residue of the said trust moneys, after the aforementioned payment of principal and interest, to pay and satisfy as far as the said residue may suffice, pari pasou, and without preference or priority, to such of the creditors of: he said parties of the first part named or referred to in the schedule of debts hereunto annexed, marked B, as shall within two months from the date hereof execute these presents, the sumis mentioned in the said schedule B, opposite the names of the said creditors; and all interest due or to grow due thereon. And in the fourth place, after the payment and satisfaction of the said debts last referred to, and the interest thereon as aforesaid; then out of the residue of the said trust moneys to pay, satisfy and discharge all other debts and responsibilities not herein before provided for, due and owing from the said parties of the first part, or which shall become payable hereafter to such creditors of the said parties of the first part, jointly and not severally, as shall with. in four months from the date of these presents have executed the same, towards satisfaction of their respective debts proportionably, so far as said residue will extend to satisfy the same. Provided nevertheless, and it is hereby agreed and declared, that the said parties of the second part may employ such clerks and agents, to aid them in the execution of the said trust, and at such rate of compensation as the said parties of the second part, the survivors or survivor of them, or the executors or administrators of such survivor may deem proper; and that the said parties of the second part, the survivors or survivor of them, shall be allowed a reasonable commission for their services in the execution of the trust kereby reposed in them, on the said trust proceeds after deducting the costs and expenses accruing thereon; which commission may be retained out of any part of the said trust proceeds, any thing herein before mentioned to the contrary thereof notwithstanding: and it is further declared, that the purchaser or purchasers of the said trust property, or of any part thereof, shall not be in any wise answerable for the loss, non application, or misapplication of the purchase moneys, or any part thereof, by the said parties of the second part, the survivors or survivor of them, or the heirs, executors or administrators of such survivor; and that the said parties of the second part; the survivors, or survivor of them,

[ocr errors]

JULY 1829. lection. That in the year 1923, and previous to being

garnisheed in this case, he received while in New York, a Robinson

written notice that the interest of Lawrence Rapelye & Co. Rapelye and had been assigned to Thomas Lawrence, for himself, Peter Smith.

and the executors or administrators, or hcirs of such survivor, shall be charged, and chargeable, each respectively for his own acts and defaults only, and not for the acts and defaults of the other, or others; and that neither nor any of them shall be charged with or for any sum or sums of money, other than what shall actually come to his or their hands by virtue of these presents, nor with any loss that shall happen, touching or concerning the aforesaid trust estate, or any part thereot, without his or their respective wilful default. And the better to enable the said parties of the second part to execute the said trusts, the said parties of the first part, have hereby constituted and appointed the said parties of the second part, the survivors and survivor of them, and the executors and administrators of such survivor, to be the true and lawful attorneys and attorney of the said parties of the first part, irrevocable, in the names, place and stead of the said parties of the first part, or any or either of them, but for the uses and purposes aforesaid, to ask, demand, sue for, recover and receive from the several debtors of the said parties of the first part, or any other person or persons having any of the said bargained and assigned premises in his or their possession, or custody, all and singular the goods, wares and merchandize, debts, accounts, suins of money, and other the premises hereby assigned, or mentioned, or intended so to be; and on receipt thereof, to make, seal and deliver in the names of the said parties of the first part, or any or either of them, good and sufficient acquittances and discharges therefor; and to take any legal means for the recovery thereof; and to make any composition or agreement respecting the same, or any part thereof by arbitration or otherwise, as they may deem proper; and to do all other act and acts touching the premises, as fully in every respect, as the said parties of the first part, or any or either of them could do if personally present; and one or more attorneys under the said parties of the sccond part, the survivors or survivor of them or the executors or adıninistrators of such survivor for the purposes aforesaid, or any of them, to make and substitute and at pleasure revoke: and the said parties of the second and third parts, in consideration of the premises, and of one dollar to each of them in hand paid by the said parties of the first part, at and before the ensealing and delivery of these presents, do hereby for themselves respectively, and for their several and respective partners, heirs, executors and administrators, remise, release, and for ever quit claim unto the said parties of the first part, and each of them, their and each of their heirs, executors and administrators, and every of them, all and all manner of actions, cause and causes of action, suits, debts, bonds, bills, notes, accounts, claims and demands whatsoever, both at law and in equity, which against the said parties of the first part, jointly they the said parties of the second and third parts, or any or either of them ever had, or are now entitled to for or by reason or means of any act, matter, cause or thing whatsoever, from

« PreviousContinue »