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ASSUMPSIT.

al. v. Sumner.

4 Pick. 518

al.

I. Ch. 14. the property, without notice of the assignment. See many
Art. 3. cases collected, 11 Wheat. 99-102.
Con. A, insolvent made a general assignment to B and C, in trust.

They with the proceeds of his property, assigned to pay cer4 Pich. 265- tain creditors in full, and apply the surplus to the payment pro 268. Borden & rata of other creditors, who within a certain time should re

lease their claims against the debtor. Held this assignment was void as against a dissenting creditor, so far as respected the surplus not wanted to satisfy the demands of those who joined in the agreement. 2. One summoned as trustee, having disclosed such an assignment, was adjudged trustee, it not appearing the money due from him was wanted to pay the assenting creditors. There was an important question started in this case, whether the requiring creditors to release oll their debts, however little they might receive, did not render the whole void. Alluded also to Widgery v. Haskell, 5 Mass. R. 144, cited ch. 39, a. 5, s. 14.

Bill in equity. An assigoment by an insolvent debtor in trust 524, Ward & for bis creditors, by an indenture of three parts, is signed and al . v. Lewes & sealed, and purporis to have been delivered by the debtor, the

trustees, and some of the creditors. One part is found in the hands of the trustees, another, months after the date, in the hands of the creditors, and in adjusting their claims, was often referred to both by creditors and trustees.

The debtor's property passed to the trustees, who, as such, appeared before the creditors, and made proposals to them in the name of all the trustees, and he often mentioned it as held by assignment, and sold by bim for the creditor's benefit, and the debtor stated to a creditor, he had assigned his property, &c. Held, 1. Here was sufficient evidence of the delivery of the deeds : 2. Parol evidence not admitted to prove the delivery was on condition: 3. Such trustee would not be allowed to deny the trust : 4. When a trust is created for the benefit of third persons, they are presumed to accept, &c.

§ 6 Con. Assignment and pledge of notes, not negotiable, how protected. A and B jointly mortaged a piece of land to secure the payment of their debt. A deposited in B's hands such notes C owed A, to secure B as to paying both moieties of the debt, B to collect them, and pay the proceeds to the mortgagee, to which C assented. Held, A could not receive payment of said notes of C, nor release him from his liability to pay them to B. B

brought the action against C, making A the plt., in form, as the 11 Wheat. 78_ notes were made to him and not negotiable. 102, Brooks v. Assignment for the benefit of creditors

, though involving imMarbury. portant principles, they are such as are already stated in this

work, especially in this and in ch. 18 and 39. See ante Marbury v. Brooks. That a debtor may prefer one creditor to another is true; but the preference clearly must be fairly and

ASSIGNMENTS.

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legally completed to exclude all attachments of the debtor's I. Ch. 5. property. Was the preference so completed in this case ? Art 3. Does not a legal attachment, in such a case, prevent the after Con. assent of creditors having any effect? I think this point has never been well considered.

1 Pick, R. 503. 5 10 Con. Trover for a promissory note, made by one Kilburn, to the plt. or order, on condition. It was deposited with the dest. to be delivered to the plt., if no mortgage, &c. While so deposited, it was assigned to one Reed, for whose benefit the action was brought by deed, with power to sue, &c. Plt. demanded the note and refusal, &c. . 2. Held, the assignee could maintain trover in the name of the assignor.

11 Con. Same in Virginia, 4 Rand. 166—171 ; as if, under the Virginia act, the obligee assign the bond, the assignee acquires only an equitable interest ; this he may assert in his own name, at law, or in the name of the obligee for his benefit, as at coinmon law.

3 Greenl. 346Assignment of a fund. Where an order is drawn for the 350. payment of the whole of a particular fund, it is an equitable assignnient of that fund to the payee, and after notice to the drawee, it binds the fund in his hands. Was error coram nobis. The assignment was of a book debt, $19,34 cts. due from the deft, to the pit. Plt. drew out a bill of particular items, at the bottom, wrote the assignment, thus; Capt. Samuel Bacon. -Sir, for value received, please to pay Wm. R. and C. Stockbridge $19,34 cts., and the same shali discharge the above bill. N. Yarmouth, March 2d, 1824 : Thaddeus Rubbins.' Bacon declined paying, &c; thought the bill high, and the next day he was summonned as trustee of Robbins, at the suit of A, and adjudged trustee. Heid, Bacon was liable on the order, though Robbins o. he had not excepted it, nor was it necessary he should. Judg- Baron. ment for the plt. for the use of the assignees.

Equitable assignment of a receipt by an officer to the plt. where the officer attached goods for the plt., and took A's receipt for his safely keeping them, the plt. has no concern in it; but it the officer assign it to the plt. or to his attorney, for his use, then it becomes the plt's property, and he may make use of it, using the officers name. Clark v. Clough, 3 Greenl. 357, 362; and p. 362-369, Rogers v. Hains the equitable assignee of a chose in action, is estopped by verdict and judgment thereon, in the same manner as if he were a party to the record ; for the suit being for the benefit of such assignee, and at his expense, he has a clear right to cross examine, &c. the witnesses, &c. See Calhoun v. Dunning, 4 Dal. 120.—19 Johns. R. 95 -342, of a judgment, 20, id. 142.

$ 21. Otherwise, had the deft's matter of offset arisen before the assignment, in that case the after assignment could not have deprived him of his prior right of set-off; but one so situated

ASSUMPSIT

I. CH. 14. may waive his set-off, by his promise to pay the assignee, or by Art. 3. fraudulently concealing his set-off from the assignee, or in conCon. versing with the assignee leave him, when he takes the assign

ment, or at any time, to believe there was no set-off, or none

will be set up. This last is the case, 3 Green). 453–671. 12 Wheat. 605 Merrill v. Merrill. Molt, assignee of a note not negotiable. -611.

When a bond is given to indemnify the obligee in it as endorser of notes drawn by the obligor, and the consideration fails, the assignee takes it subject to all equities existing between

the obligor and obligee. 5 Pick. 28.

Where the insolvent assignor, may, on condition, reserve pro

perty to himself. 1 Hop. Ch. R. 25. Fraudulent assignment. See Insolvency. A merchant, 373-107

, Mac- failing, made sundry deeds of assignment to trustees of his properCairns & al. ty, in trust to pay his creditors, thereby put into different classes

of priority. One of the deeds reserved an annual sum to the debtor, for a limited time, and all the assignments were subject to this trust. By another deed it was provided if any

creditor should attach the debtor's property, such creditor should have no benefit of the trust; this was afterwards annulled. Afterwards, fearing the assignment would be invalid, the debtor confessed a judgment to the same trustees, on the same trust for creditors, but with no reservation for himself. It was intended to resort to this judgment, only in case the assignment should not be adjudged valid. 1. Assignments were all adjudged void. 2. The judgment is valid ; the intention as to it did not infect it with the vices of the assignments. 3. The insolvent debtor may prefer some creditors, and may secure them by a judgment in favor of trustees. 4. Any reservation for himself, renders void the whole in law and equity. 5. The deed, as to attachment, was void. The judgment confessed to Robert Sedgwick and Daniel Lord, Jr., the trustees, for $96,103 2 cts. of debt, and $18 36 cts. damages and costs, by William Cairns, the debtor, became a lien on his land, Aug. 1, 1823. The judgment obtained against him for $3376 74 cts., by said Mackie, &c., became a lien, Aug 8, 1823. The money in question arising from the sales of Cairns' land, is less than the $96,103 ; and the judgment to Sedgwick and Lord, being valid and in trust for honorary and confidential creditors of Cairns prevails to absorb the fund. The circuit court held the assignments valid, from which Mackee & al. appealed. The reservation to Cairns was $2000 a year, not exceeding four years, to support him and his family. The trustees contended this was reasonable, and no fraud. It was this reservation which tainted all the assignments, in all their parts, as they could not be good in part and void in part, as Cairns and the trustees contended they were, relying on Eswick v. Cailland, cited ch. 32,

ATTORNIES.

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a. 1, s. 3, and other cases. Costs allowed Mackie & al. out I. CA. 15. of the fund in controversy ; same to trustees who held it.

Art. 1. Where an assignee takes a mortgage subject to all equities,

Con. and, among others, to a set-off. See set-off, ch. 168. i Hope. Ch. R. 579-584.

CHAPTER XV.

ATTORNIES.

$ 2 Con. The court held, that in suits requiring great profes

ART. 1. sional labor, where much time must necessarily be consumed,

Con. and diligence and skill required, in the preparation and manage 1 M'Cord, 149. ment of them, an attorney may rightfully and legally charge, by way of council fee, a sum in proportion to the value of the services, and which the jury, upon evidence before them, are competent to ascertain and decide.

When a solicitor has been duly appointed by a party, and 1 Hop. Ch. R. acted as such, he is not removeable without the court's order, 369-371. and another substituted ; his duties are like an attorney's in the courts of law. Other reasons stated at large ; same rule in the courts of law in New York.

§ 12. An attorney's promise to indemnify an officer for an illegal arrest, is valid.

The plt. declared on the joint promise of the two defts. to 2 Pick. R. 285 indemnity him for taking the body of one Leland, and com--292, Marsh v. mitting him to jail, on an execution against the Cheshire Crown Gold & al. Glass Company, of which Leland was supposed to be a member, and recovered. Plea, never promised. The attornies were partners. One in the first instance made the promise, which could not bind the other; but he afterwards assented to it. The partnership afforded a presumption the one who first made the promise meant to bind both, and the after consent confirmed it.

Two admissions made during attempts to compromise an action, of particular facts, independent of any offer, may be given in evidence. Attorney's lien, 3 Greenl. 34.

§ 13. Attornies' power, how continued, 1 Greenl. 257–261, till the judgment he obtains is satisfied. If levied on land it is not satisfied till the right to redeem is gone. Hence, payment may be to the attorney at any time within a year after the extent, and if so paid, the creditor is barred his writ of entry. Gray v. Wass. So he continues even to recover the original debt of the bail. This he may do and is bound to do according to the decision in the case of Dearborn v. Dearborn, 15 Mass. 316.

46

ATTORNIES.

He has power to

310.

P. 520.

I. CH. 15. § 14. A written power to an attorney need not be acknowl-
Art. 1. edged, unless used to convey real estate.
Con. permit a sheriff to renew an execution in the name of his client.

If by a written agreement made in court after an action is en2 N. H. Rep. tered, an attorney stipulates, on a continuance, to waive certain

objections to the evidence in the case, the agreement may be P. 376.

deemed a part of the record, and at the next term estop the

party to make those objections. ART. 3. § 2. How an attorney must execute his principal's deed, see Con. ch. 9. a. 18. s. 14, Afridson r. Ladd, and cases cited.

The power of attorney to sell lands, does not require, as between the parties, any particular mode of attestation, but may be proved in the usual way in which any other fact is proved.

2 Rand. 93-108; 1 Caines' Cases, 3. ART. 4. § 15. Con. Though his death be not known to the attorney: Con. but if revoked, not till notice to him. As where one Jackson,

in a foreign country, owned lands in this, March 25, 1811, gave a power of attorney under seal to Harper (a plt.) to sell the lands. Jackson died August 13, 1313. January 8, 1814, Harper, not having heard of his death, sold the lands, by a proper deed, to Little (deft.), who paid for it $1500. This sum remained in Harper's hands. He married one of Jackson's heirs, and thinking the deed was void, he and his wise, &c. sued Little to recover the lands. Held, 1. The said deed was merely void : 2. That Little, the purchaser, could recover back the $1500, he paid, from Harper, the attorney : 3. As his deed was in auter droit, he was not estopped to say it was void : 4. The deed was not his own for want of apt words to bind him : The remedy against Harper was as above: 5. The attorney is not estopped by the deed, unless it be his deed and he is bound by it. Not so here, for the deed is a very correct one to bind the principal (were he living). See ch. 9. a. 18. s. 5, &c. Agent and Principal.

Power of attorney coupled with an interest or not. See 8 Wheat. 174—216, and Power, Index; ch. 135. a. 6. s. 4. 21, the subject examined.

Whenever an attorney in court engages personally he is bound personally to perform.

§ 19. Con. But a deed duly executed, acknowledged, and recorded, is evidence of a power of attorney recited in the deed as a part of it. 3 Har. & Mc H. 594 to 625, Davidson's les

see v. Beatty. 2 Mason, 244– On a bill in equity in Rhode Island, held, 1. If A give a Rousmaneer's power coupled with an interest, it does not expire with A's

death : 2. Nor does his naked power necessarily; for it may be one to be used after A's death; as a power to bis executor to sell his land after his decease to pay debts, &c. 3. A's

1 Barn. & Cres. 160.

adm'r.

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