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Remson and Benjamin Smith, requiring him not to pay to JULY 1829. any other person than one of those mentioned, the money,
Robinson which he then had, or might afterwards receive on account of said firm, unless authority was produced from them. He Rapelyo and
Smith, from the beginning of the world to the day of the date hereof, This assignment and the trusts, and matters therein contained, and the rights, estate and interest thereby secured excepted. In witness whereof the said parties have hereunto set their hands and seals, the day and year first herein written,
Memorandum. It is expressly declared to be the meaning and intent of the foregoing presents, that the release and quit claim contained therein, and thereby made to the said parties of the first part, shall not be construed or taken to operate upon or ex. tend to any promissory note or notes, or bill or bills of exchange which have been made payable or indorsed to, or have come into the hands of any person or persons, or mercantile firm, (who shall execute these presents) as agents or attorneys for others, and have been indorsed or negotiated, or transferred by the said agents or attorneys, or any of them; but the liability of the said parties of the first part, and each and every of them on the said notes or bills of exchange respectively, to the true owners thereof, and to the several parties thereto, shall remain wholly unaffected and unimpaired; notwithstanding the execution of the foregoing presents by such agent or agents, any thing in the said assignment, or foregoing presents contained, to the contrary notwithstanding. Sealed and delivered (Signed) Jno. T. Lawrence, (seal in the presence of
Daniel Rapelye, seal
Wm. R. Smith, (seal]
(seal) Agen Smith in the presence of
Benj. Smith, (seal) signo S. P. Gregory. Jeromus Rapelye.
seal) ees. Witnesses to the signatures Henry Thomas $11,432 02 (seal) of'ihe assignees
Benj. Smith, transacting buPierce V. C. Miller,
siness under the firm of Samuel A. Miller
Dunton & Smith,
[sen Thomas Lawrence,
seal John F. Lawrence, (seal]
Thomas G. Casey, (sealj
Abraham Riker, transacting
(scal] George Sharp,
seal James N. Tuttle,
(seal] Thomas Tileston,
(seal] John Herriman,
seal) Egbert Davis,
seal John Wells,
seal) Thomas Van Antwerp, (seal) Parish Holbrook, & Co. by Hy. Parish, for $1116 36-100 in the first class. David J. Boyd & Co. by David J. Boyd, Payne Spofford,
seal) Peter Romson,
JULY 1829. further stated, that about two thirds of the amount then in
hand had been collected since he was garnisheed; and that Robinson
there would be, when collected, a further fund liable to disRapelye and tribution in the same manner as the fund now in hand. Smith. Sept. 9, 1823.
(se'il] « 13, “
Schedule A, of creditors, debts and responsibilities or engagements,
referred to in the annexed assignment.
31,913 91 Henry Thomas for exchanged paper,
11,431 00 Dunton & Smith for
10,124 00 Herriman & Davis for
5001 00 J. & L. Van Antwerp för
2600 00 Abraham Riker, & Co, for diito,
4627 39 J. & W, Penfold for
ditto, $4571 62 Do, for money collected,
55410 David Boyd & Co, for money collected,
231 66 Spofford, Tilliston & Co. for ditto $44175 and $453 70,
895 45 Sharp & Tuttle for
567 23 Parish, Holbrook, & Co. for ditto,
1116 36 John Wells for Stock of the Pacific Insu.
rance Company transferred by him,
16,000 00 Rapelye, Bennet & Co. for money collected,
JOHN T. LAWRENCE, Schedule B. of creditors and debts referred to in the annexed as
signment, Adrian Van Sinderen,
$8203 30 Estate of Richard Lawrence,
9046 79 Simon Remson,
The assignees of Lawrence Rapelye & Co. appeared by JULY 1829. their counsel; and due notice by publication having been
Robinson given to the defendants in the attachment, and they failing to appear, the plaintiff, at March term, 1327, moved tnc Rapelye and
Smith. Adrian Van Sinderen and William Law.
rence, Guardians of Richard Lawrence and Isaac Lawrence, sons of Richard Lawrence, deceased,
3493 11 William Lawrence,
1829 22 Thomas R. Lawrence,
3678 26 Ulpian Van Sinderen,
4558 49 E. A. Underhill,
100 Caleb Hopkins,
1187 05 Estate of Gillespie and Campbell,
1613 25 Creditors of Russell, & Co.
1864 62 Samuel Hickok,
JNO. T, LAWRENCE. STATE -YORK,
City and County of New-York, On this thirtieth day of December, in the year of our Lord one thousand eight hundred and twenty-three, before me Robert L. Wilson, a commissioner in and for the City and County of NewYork, duly authorised to take the proof and acknowledgement of Deeds, &c. personally came and appeared Seth P. Gregory of the said city, (to me known,) who being by me duly sworn according to law, on his oath did say, that he was present and did see Daniel Rapelye and William R. Smith, known to him to be the same persons described in, and who executed the within indenture of assignment, duly execute the same, for the ases and purposes therein contained; and that he the said Seth P. Gregory, together with Jeromus Rapelye, became subscribing witness to such exccution, All which being to me satisfactory proof of the due execution of the said Indenture of assignment by the said Daniel Rapelye and William R. Smith, and there appearing no other material erasures or interlineations therein, except those noted I do allow the same to be recorded.
(Signed) ROBERT L, WILSON, Commissioner, &c. STATE OF ,
City and County of New York. On this thirty-first day of December, in the year of our Lord one thousand eight hundred and twenty three, before me Robert L. Wilson a Commissioner in and for the city and county of New York, duly authorised to take the proof and acknowledgement of Deeds, &c. personally came and appeared Maria J. Lawrence of the said city (to me known,) who being by me duly sworn according to law, on her oath did say, that she was present and did see John T. Lawrence, known to her to be the same person described in, and who executed the within indenture of assignment, duly execute the same, for the uses and purposes therein contained; and
Court for judgment by default against the defendants, and
also for judgment against the garnishees on their statements Robinson
filed. But the Court, being of opinion that the deed of as . Rapelve and signment referred to and produced, and the notice thereof Smith.
given by the assignees, protected the debts in the hands of the garnishees, overruled said motions, dischargel the garnishees and rendered judgment for costs against the plaintiff.
Robinson, assigned the judgment of the Court below for error, alleging several reasons
why it should be reversed. VAN DE GRAAFF, for the plaintiff in error. Our attachment was levied on choses in action of the assignors, not assignable, either by the principles and policy of our own laws, or by those of New York. Consequently, the legal interest in the rights and credits attached still remained in the defendants, after the assignment; and at law, the garnishees must be regarded as the debtors of the defendants, up to the time of the levy of our attachment. A Court of law merely, cannot, without invarling the province and peculiar jurisdiction of a Court of Chancery, take notice of the assignment of balances due upon mere open running accounts; and the assignor to whom such balances are due, is regarded, ai law, as the creditor, after the assignment: otherwise, surely, in an action by the assignee of a chose in action, not negotiable, the defendant would not be permitted to set off a demand due to him from the legal plaintiff; but this, the defendant would in all cases be allowed to
do; and he would thereby in effect defeat the assignment, «7 Term Rep. to satisfy a debt due from the assignor.a 667.
This deed of assignment was made in New York. It Chit.on Bills.
transfers the whole estate of the assignors in Alabama, real and personal, to the assignees: the very property upon that she the said Maria J. Lawrence became a subscribing witness to such execution. All of which being to me satisfactory proof of the due executior: of the said Indenture of assignment by the said John T. Lawrence, and there appearing no material erasures or interlineations therein, except those noted, I do allow the same to be recorded.
(Signed) ROBERT L. WILSON, Commissioner, &C. Recorded in the Office of Register in and for the city and county of New-York in Lib. 172 of Conveyances, page 309, on the 31st day of December, 1823, at half past one o'clock, P. M. Examexamined by
JAS. W. LENT, Register, Endorsed Lawrence, Rapelye, & Co, to Peter Remson and others, A true Copy.
AUG'S FLOYD, Public Notary.
which, principally, their credit was acquired and sustained here. Its object is also to prefer New York creditors, to
Robinson the exclusion of creditors elsewhere. Now although our Courts perhaps would not hesitate to carry into effect the Rapelye and
Smith. provisions of this deed, as to all persons who are parties to it, they would surely not be required to enforce its provisions against our own citizens, not parties to it. The legal right of an insolvent debtor to prefer a particular creditor, or class of creditors, is not disputed; but the mode in which this right is attempted to be exercised, ought to be unexceptionable. It ought to be with the knowledge and consent of the creditor intended to be preferred; a direct assignment of specific property to pay a specific debt or debts; and it should be done without incurring unnecessary and heavy expenses and charges upon the debtor's estate. But this deed was executed by the assignor without the knowledge or consent of even the preferred creditors; and their number and the amount of their demands, as well as the value of the property transferred, is wholly unspecified. The expenses which must necessarily be incurred in effectuating the provisions of the deed, cannot but be very large; the funds consequently which ought to be exclusively appropriated to the payment of the debts of the defendants, are unnecessarily diminished and wasted away.
This assignment being a contract made in New York, between citizens of New York, our Courts will lend their aid to effectuate its provisions, as against any person whatever, only from the principles of comity. Would it not be carrying the principle too far, to support the deed against, and to the ruin of our citizens? Lord Mansfield, in the case of Le Chevalier, assignee of Dormer v. Lynch,a al Doug. Rep. seems to have been careful in the choice of his terms. He 169. says" In Scotland, they permit assignees of a bankrupt in England to sue for money owing to the bankrupt in Scotland; butonly where their own citizens would not be thereby exposed to unjust injury." Mansfield further observes, that it has been determined at the cockpit, that bills by English assignees may be maintained in the plantations upon demands due to the bankrupt's estate. But if in the mean time, after the bankruptcy, and before payment to the assignees, money owing to the bankrupt out of England is attached, bona fide, by regular process, according to the law of the place, the assignees in such casc cannot recover the debt." By the laws of Scotland, all effects of a foreign bankrupt, situated in Scotland, are secured for