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JULY 1829.

Robinson

Y.

Smith.

Remson and Benjamin Smith, requiring him not to pay to any other person than one of those mentioned, the moneys which he then had, or might afterwards receive on account of said firm, unless authority was produced from them. He Rapelye and 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 extend 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.

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JULY 1829 further stated, that about two thirds of the amount then in hand had been collected since he was garnisheed; and that there would be, when collected, a further fund liable to distribution in the same manner as the fund now in hand.

Robinson

V.

Rapelye and
Smith.

Sept. 9, 1823.
"13, "

Witneses to the signatures of
Benjamin Smith, Thomas Law-
rence, Thomas G. Casey, John
F. Lawrence, Abraham Riker,
John Penfold, Wm. Penfold.

Samuel Hickok,

Caleb Hopkins,

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[scal]

Schedule A, of creditors, debts and responsibilities or engagements, referred to in the annexed assignment,

T. & J. F. Lawrence & Co. for exchanged

paper,

$26462

Do.

for endorsements of notes,

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Henry Thomas for exchanged paper,

11,431 00

Dunton & Smith for

ditto,

10,124 00

Herriman & Davis for

ditto,

5001 00

J. & L. Van Antwerp för

ditto,

2600 00

Abraham Riker, & Co. for

ditto,

4627 39

J. & W. Penfold for

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Do. for money collected,

219 85

4791 47

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55410

David Boyd & Co. for money collected,

231 66

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Spofford, Tilliston & Co. for ditto $441 75

Parish, Holbrook, & Co. for

John Wells for Stock of the Pacific Insu-
rance Company transferred by him,
and pledged or appropriated for debts
of Lawrence, Rapelye & Co.

Rapelye, Bennet & Co. for money collected,

16,000 00

1000 00

$145,709 47

JOHN T. LAWRENCE.

Schedule B. of creditors and debts referred to in the annexed as

895 45

ditto,

ditto,

567 23

1116 36

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The assignees of Lawrence Rapelye & Co. appeared by JULY 1829. their counsel; and due notice by publication having been given to the defendants in the attachment, and they failing appear, the plaintiff, at March term, 1827, moved the

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Robinson

V.

Rapelye and
Smith.

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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 uses and purposes therein contained; and that he the said Seth P. Gregory, together with Jeromus Rapelye, became subscribing witness to such execution. 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, Sc.

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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

JULY 1329.

Robinson

V

Court for judgment by default against the defendants, and also for judgment against the garnishees on their statements filed. But the Court, being of opinion that the deed of as Rapelye and signment referred to and produced, and the notice thereof given by the assignees, protected the debts in the hands of the garnishees, overruled said motions, discharged the garnishees and rendered judgment for costs against the plaintiff.

Smith.

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 invading 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, a7 Term Rep. to satisfy a debt due from the assignor.a

667. Chit.on Bills.

This deed of assignment was made in New York. It 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 execution: 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. Rapelye, & Co. to Peter Remson and

Endorsed Lawrence, others, A true Copy.

AUG'S FLOYD, Public Notary.

JULY 1929.

Robinson

V.

Smith.

which, principally, their credit was acquired and sustained here. Its object is also to prefer New York creditors, to the exclusion of creditors elsewhere., Now although our Courts perhaps would not hesitate to carry into effect the Rapelye and 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; but only 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 case cannot recover the debt." By the laws of Scotland, all effects of a foreign bankrupt, situated in Scotland, are secured for

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