The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-10-01

OF trial n the prayer Is for jndg rsnt merely,
by jury 263 II other relief be prayed, tie
Is TO be uieo BY the Court, unless the Court orders
PRAYER il Dpy for judgment for named, in
tine language Of the CODE II the action Is for the
covry Of money the clerk in case no spswer PIT in
must the damages, 246, sub / If IL is not
merely for the overy Of money, but other relief IS
PRAYED arc must be given to enable plaintiff 10 re-
TO the Court, id, sub 2 The summons in the
must be different from that in the other Gee lzs II
the action is for the recovery OF money only, II
he RECEIVERS costs, section SEA, sub 4. But II
no seeks ether lief, and the action be such IS
formerly could be brought only Ia chancery, the cos
are in the discreiio ON OF the Court Section 800. Not
only tie imperative requirements of the Code, but the
policy OF eli he provisions Of H. teerred to- demand that
the specific relief sought should ba stated distinctly and
directly II the question OF reforming the policy 10
lie Itgsted defendant should he advised Of by the
complaint Unless facts stated sufficient to entitle
plaintiff 10 that relief defendant may desire demu-
10 much OF the glant contains that OF
action. Section las. Unless the reforming OF the policy
is sought aud Judgment eformipg It is demanded, all
allegations in tho complaint having no relation 70 any
other point should be omitted his complaint does not
state what WORDS omitted TO be written on the mar
gin of the policy what precise reformation sought
The plaintiff may amend his complaint within twenty
days, as be may be advised If he does not amend
the words tlai If the same be necessary in tae l4th
folio will be stricken out OF the complaint and defend
ant have ton days to answer or demur, after the
complaint has been AMENDED
DuEE and HOFFMAN, j., being consulted, concurred
Before Hon Judge Hoffman.
SEPT. 25 Motley BasseR and others -HorrXAS j..
The late linn Of Bassett, Aborn Il Motley was dssov
ed 23d December, 1858 ana theeupon articles Of
dissolution executed between the members, under
which the possession and control of the Of the
FIR we're transferred to the partners, Bassett
Atorn the stpulaons and agreements con aimed in
and the business upon the ba liz in part Of the
old stock In August, 1854 they failed, and made
assignment Of all their property and effects. including
PENDANT Thomas and for the benefit in part at least OF
their own separate creditors For the due consideration
Of Of the questions il II assumed that the assign
ment for the exclusive of such creditors. The
necessity OF speedy decision for the inter of all the
parties prerens my entering into an elaborate Mgu
me Mt TO sustain my views ] content myself with stat
ms the results o. my ex minaton in the following pro-
Positions
Tie transfer Of the property and assets Of the for
firm absolute, vestng the entire possession and
Whole right of disposition in Bassett seorn.
Aborn pay the debts Of the firm and Motley harm
less. There also fun covenant their part that
hsy would fsthfpy speoprats the property assigned
Motley, II not the partnership creditors, could
have compelled this appropriation. and returned,
the property long remained in the hands of Bas
sett &Abon upon proven intention to mhapply or
Blu. the property is now in the hands OF an assignee
Of the second rm and had placed there for the benefit
it assumed, of the separate creditors of that dr
and In my vie the questions to be considered
trey between the conflicting claims OF two classes of
creditors In substance it must BIO SO, and disregard
the tecbpcalty which side treats the partnership
creditors without rights standing, but through the
retiring partner and tbs other, considers creditors
sS no eetenSns upo1 sne lights .. ,aS assgnor
brought then to the discussion decision OF the ques
tons as between the real conflicting claimants upon the
funds.
Upon this important subject 1t seems to be decided
that the claim OF bona dc purchaser Of partnership
partnership creditors asserted through retiring part
per. however absolute and explicit the appropriation
may have been made BY bona fde purchaser Is meant
who advances money credit at the time. Again.
1t is probably also settled that il creditor OF the part
ner who has taken the property under such assump
ton to pay debts obtains judgment issues execution
and files his bill thereupon he obtains lien which will
supersede the equitable claim of the joint creditors upon
such property Blu, where the question arises simply
ship and the creditors of the patner to whom the
perry has been asse ned, and the property may be
gnal equity of the former is not superseded by the
SEXUAL possession of the property for the use Of the
DO not mean to say that this point Is authoritative
~ settled, and the argument Is very pressing which
tests s upon the PRESUMPTION OF credit given upon
| notice Of an equitable claim upon them.
Without, therefore, having axea undou biting opinion
the question leads to the concluson tina. Law is in
favor of rartnershp creditors 1t is generally stated
worked out through the lien Of the part aer that they
have strictly themselves lien. The practical effect
appears 70 DO that the creditors cannot for the funds
at least cannot without the partner But in tbe
below cited from NcIeans Reports Justice Mcesu
sustained bill by partnership creditors to forec,ose a
cpe secure his engagement to pay the debts Of the
firm. The to which have referred are-Devau
III. Rep, 50 Kctchum IS Darsee, Hoamau's Gu Rep,
$40 and Iesersea-l Barbour, c. asa Greenwood rs
shs h ss2 s,p sea Sp VAL har
tcp, 81; Hood signee Of Richie, Spencer ibid leS;
Rob6 rs Stevens. usrhes Rep, lsl Rice Is. P.rnum, %
Vermont, 429; Gardner Trustees Of Canajohs
Barbour Sup. c. Rep f25i Wilder ". Chapman, Ed
wards, GEO.
IT, But another point rcroaps 10 he disposed or tits
n a If IL NJ he
finn Of Bassett, Aborn Motley, paid by the firm,
exceeds the whole amount realized from The assets OF the
frat frm and the fa value Of what remains Of such
assets and it Is insisted that such remaining assets have
thus been ade the property of the last firm least
old partnership creditors to give better title the
creditors Of the firm This Is grave question. Al
though the covenant Of Bsssst and ADorn to pay the
debts absolute matter what the property realized
yet Mctey would only be creditor of theirs for what
be should pay Of any deficiency This would not affect
to have this question settled The not admitted
Fut Is entitled to much weight in considering whether
the assignee appointed by the arm should be displaced
The cause is new in such position as that il Il were
on the calendar At special term it would be referred
ard have GRATED the heads Of order which with
proper notifications will as speedily possible bring
the case 10 close the parties consent that it be
treated as the cause The calendar and brought
bay will be short by putting il down for the October
term, for which, If necessary special order may he
made The ordes directed to be entered in effect
]. That the defendant, Thomas, b. appointed eiv.
err en- giving the requisite security.
2. That upon such security being given, the injunc
ton heretofore given be modified 30 far Is to permit
Thomas receiver to proceed to dispose Of all the
properly in his hands, and covered by the assign
ment made to him the llth DAY OF August 1854 and
collect the proceeds thereof and collect all debts
which passed to him by such assignment, he keeping
separate accounts If the proceeds, to show the
amount realized from that part Of the property
SETS belonged TO the Arm of Bassett Aborn Motley
and that such defends retain all this Of the
property assigned to him, until the further order Of the
court.
And that the be referred, for the purpose Of
ascsrtaning the true TO certain specified quea
tons .aned Ia the order
Superior Court-GcneTal Term.
Present, all the Justices
STT. soIt is ordered that The next November t.ial
term thereof he exte dcd and continued four weeks from