The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-01

trustee Fraud ought not 10 BE- presumed fom the pro
visions Of an nrtrumsnt which admits OF contrary is
depreciation, more than It should be presumed roa
the acts pals Of party which admit VI an intsrprv
to be inferred sonelusiyely from nstrunent which
reqsss faithful and jsst execution o. ~ trust eS
frned, With costs Mr., nm, a his treatise nrstsss.
after showing that trustee n.y b hsois xhss = -
ia about TO accomplish, or to prevent repetition o.
after he knows Is DONE explains clause analogous 70
the IN this case and says" The ordinary eiam
for the indemnity Of trustees which limits their Liability
70 their own acts does not apply to breaches Of trust Of
clause appears 10 he Of little prscticalnse for
The conduc Of the trustee be such not TO amount to
breach Of trust he win not be liable for the acts q HE
colleagues though there be such clause in the trust
instrument and II there be breach Of trust his
part, the clause in question win not apply. (Hn ON
ler.) Can anything more be needed in this ease
II there was any hseach Of trust here, clause
no breach Of trus he would not BE- liable even nat
clause were omitted.
The dissenting opinion Of Judge Clerhe was - fol-
CimxE J-This 10 an action to set aside an assign
ment a. fraudulent and void against creditors. Tho
quence Of the following clause he parties OF the
cond part shall be charged and chargeshe Only with and
70 much money And p :: shiy ana:
bic for the acts receipts, negects or defaults 81 any
attorney attorneys agent agents. that they may
may happen without their wlful default" Here, then,
BY the operation Of the instrument ITSELF they are ex
agents. However careless however indifferent they
may be in the selection Of suitable and Trustworthy
persons 70 serve them in performing their trust they
may employ utterly inc competent without inquiry
about his qualifications or his character and he
If this instrument shall be sustaned and beyond the
mere moral obligation there is nducemen whatever
for the faithful performance of their duties except
far their debt Is concerned, which, usual in
cases Of this nature, ia preferred They also
empted from all accountability on account Of any
| arise from their wilful default. trustee being
under obligation BY his acceptance of the trust 70
husband the property conndsd to him with the
care and diligence Of prcvident owner, Is liable
for every loss sustained by Of his negligence
want of caution, mistake, well for positive
misconduct wIful default The law would not
him. if he managed the affairs Of his trust In the
same manner in Which he managed his own unisss that
and ordinary prudence are required But the provson
in question exonerates the trustees from anything APP
loss arising from their wul default; thus multiplying
the acquisitions Of the law debtor and two
together and in this way dispense with all
ty in regard to defacatons waste and any losses
which might have been prevented BY ordinary care and
credtors not preferred always with very
little conirivance be hindered, delayed defrauded.
The clause at the end of the instrument binding the
the trust does not counteract the effect Of the prece
ing clause which releases them from all
language Of the assignment should be taken together
and they may well say IL brought to account for the
consequences of mistakes emissions, which ordinary
prudence and forecast could have averts that they did
not nevertheless act unfahfuly unjustly because,
by the express terms Of their trust they only
happen By their xui dss e uods9 Eat pssa
of the clause exemptng tho sssgnses from al caro-
as the q "a
the actual Of the trust for the trustees
could, without much diaas.lty, and without mailing
reference and thus these subordinate agents could
At variance With the profeased object Of the asgnmes
the trustees In the meantime escaping all the liability
proved against them. AZ the present time ceptsniy'
the law will not relax the rules relating to asgnmsnts
Every provision in these instruments which may enable
Of The instrument itself 70 hinder delay or dsfraud
creditors should in my opinion render the Instrument
void on its face And this the only safe principle BY
which to test their soundness; leaving for col
fusion, allowing no intermeddng on the part Of the
osr Ws
aa the right to provide for preferences and the right
to have the assets divided among the creditors provided
PAID the policy Of the times well the interests
Of commerce, and may add, the higher interests Of
methods, BY which the assets Of debtor are taken
from the ordinary ieg. course Of applying them TO
counsel for the O. phi p.n that ths
stated In the answer duly recovered by Allen
| Paxon the assgnees, and that the amounts for
! which they were rendered were due. II becomes u
question, then whether they have q right to set oil
their claim Beck and TO apply the proceeds Of the
assigned property to the payment Of their Judgments
\ against him. II has been usual, where assignmsnts
have been set aside fraudulent by Of OBJ
jecionable provision their face in this case,
allow the trustees all payments made BY them 10 the
other creditors previous to the Of the
mcnts incurred IN collecting and converting into money
the property and effects assigned II Is admitted that
the assgnecs eceved under the assignment between
the recovery Of the plaintiffs Judgment and the
OF this action seventeen hundred and eighty
six dollars and previous to the PLAINTIFF Judgment two
thousand one hundred and fty nine dollars and, since
the commencement Of this action, I've hundred and
twenty dollars and forty two cents. 1t does not
appear that they have applied this amount to the pay
ment Of the claims Of any other creditors In analogy
to the general practice in such cases. think that
would be proper TO allow the asgnces to apply the pro-
ceeds received and probably appropriated by them pre-
vious to the Of this action, to the pay
men Of their judgments, and TO the expenses Of
the trust and that the proceeds received after the
mencement Of this action shsud be applied To the pay
ment Of the Judgment Of the plaintiff who has obtained
equitable priority other creditors by these pro-
ceedngs An order should be entered declaring the
Segment void reversing the order Diminishing the
plant to Allen Paxon, and providing for the appl
| cation Of the proceeds - above indicated.
The Brooklyn City Railways.
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