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

Decision by Hon. Judge Cleric.
SET. 2o.--R Wilson and others against lamont AMI
EsrsUscn The facts in this sppesr sufficiently IN
the opinion of The Court which was rendered by
CIInSr J-Tbis 10 action to set aside assignment
executed Ferguson TO lamont in trust for the benefit
Of creditors, bearing date goth October 1851 at Har
persisted, in Delaware county, where ferguson
gagged in business a merchant and where Lamont
employed as clerk in the law Office Of s. A. Givirs,
Egg The plaintiffs are judgment creditors Of Ferguson
in the amount of s56l, Oe, Judgment recovered
against him 18th December, 1851, for goods sold to
him atout the sth Nay, 1851, at SIX months croft
and also on q Judgment recovered against him ed
November, 1851, by John c. Tucker Cor 500 SO, which
Tucker after wards and before the Of this
action assigned 10 the plaintiffs.
II urged on behalf Of the plaintiffs that the as
Segment Is void ON its face because IL authorizes the
assignee 70 sell ami dispose OF the property igued
upon o. ii terms and conditions in his Judgment
msy appear best and most for the interest of the parties
concernedn Ibis il the only groand upon which IL
be pretended with the slightest degree OF pausibity
that the instrument il void It's face Since the de-
esion 81 the Court of Appeals in Barring Griffin q
Com $685. is undputed that where the sssgues has
tie optop, by the exprer language of the instru
70 sell for cash upon credit the whole assignment Is
uron It's face fraudulent and void. In Shufedt Jr r
Aherrethy in the New York Superior Court the language
Of the clause vac precisely the sams word for word as
The word .syedit did not appear in any part of the
Instrument but the judges Of that Court at General
meaning tner0 1b not tne kugntest
difference" Germs and oondi.iops, they say, ''can
only mean terms and conditions OF payment The
high reputation Of that Court for ability and learning
giyes to tbls as well as to all It's DECISIONS very seat
weight; but / am constrained TO differ from the
learned Judges in the construction which they have
sarIy imports a discretion to the assignee to sell
edit. The familiar principle. that in the inteTpre-
tston of Instruments, the Law viii By impc,t
trust, forbijs such construction agree with Judge
Mason, Of this court In Tyler ys. rdssn, that tho
court viii never ioply power to sell on credit from
any loose, ambiguous expression, where there Is
sonable doubt ss 10 its meaning To viate the in
strunept, It must be express power to sell credit
1t VIII be intended that tie power was conferred to sell
only legal terms and couditions-for cash, and
not on credit, which would be illegal. But 1t is
said that in instruments containing this clause, If
you take away the power to sell on credit no dis
c!etion remains since there be exercise of
discretion ~ TO the terms and conditions of SALE when
madehat IT, the clause admits Of no other possible
construction but discretion to sell credit ami in
sale of property it is thus assumed, there can be
terms and no conditions, except those which have .
reference to credit But be that credit 10 the
only circumstance connected with the discharge Of the
duties Of assignee in the disposition Of the property,
importing the idea Of terms and conditions. II may
e2pedent that should be sold either in gross in
parcels both that 1t should be taken away by the
misses fer asonable time to suit his convenience
that certain per cenfage Of the purchase money shoad
be deposited Immediately after the SALE that the
whole may be paid nledately delivery. Besides.
the words "terms and conditions when regarded in
connection with other parts of the instrument, may
without any violer TO the language be taken TO
the ma nner in which the trust in This respect was to
be psrformed for example, that the sale be priyats
public, in the store elsewhere, including immune.
rabe details in the proceeding which must from
sity be left to the discretion Of the assignee But when
find that in addition to the quoted, and
continuation Of the sentence the assignee Ia directed
''to convert the same into CASH." think to Imply an
intention 10 give the assignee option to sell
dit would be actually reversing the rule forbidding
to deduce an illegal intention from an instrument,
when from its whole language and tenor Is srscept.
ibe Of . legal meaning. IDesslity shall be pre-
sumed For these reaeons, consider this assignment
valid on its face
The next question to be considered is whether the
extrnsc facts show that the assignment made in
bad faith, ard with intent to defraud creditors For
this purpoe not confined to facts previous to
simuits with the execution Of the assignment but
they sIe CAPABLE Of explaining the motives OF intent
actusting the parties nj the Tins Of the transaction
Doubtless subsequent illegal fraudulent sets Of
the aesigno,, assignee can invai6ate assignment
Wild in its inception but where the qucsti,n 10 still
unsettled, whether the whole transaction from the
mensement We. fraudulent subsequent Sonointly With
show the intent, and prove the validity or inva-
ndity Of the assignment Tho defendant Ferguson
tanned Judgment agains. him on the eighth Of
May, 1851. at cIeoit Of six months making the bin
Que the sth Of November At the time he purcha ed
the goods, he told Simpson, the PLAINTIFF clerk who
made the sale, "that he Was making money, and
doing better At Barper,6eld than be had been at
ta;ons that the plaintiffs soA him the goods how
does this sgrce with the fac. proved in the case and
urged by the Defendants counsel himself that Furguson
mept, and constantly pressed for money! Now, when
take these circumstances and this palpable msrep
r n sa
before the bill of the plaintiffs became due think
may well lie regarded ~ throwing some light on thc
intent inducing the assignment. In addition to this
find that the assignment made to young man,
twenty two years Of age, law STUDENT fc. rods from
Frgusons store, with little property pecuaisry
hiatt - hama
Of rossession that FurguEon continued to attend tho
store, to mske sales in some instances on credit and
that he employed to assist in the general manage
ment Of affairs and collection Of debts that the goods
continued to 10 refailed, while there actual
change in the management OF the business. His re-
mark too soon after the assignment to sternough an
acquaintance and customer, should not be forgotten
The latter asked him seeing that the store had more
nns 9p III s.n
q creditor, vas crowdng himg' lie said no, :" that
!: was matter Of my own getting up do not mean
the go,ds were sold At auction about ten twelve
weeks after the execution Of the assignment-Fergu
sen in the meantime BY his counsel i7tsrposirg "a.
and 10 the PLAINTIFF their efforts to obtain ud gments
against him for claims, which he does not pretend to
dispute or that he had ever any eason to dispute Az
sg meDts by debtors regarded with Indulgence
By The law. Experience and the requirements u
sres. commercial community show that they should
that fu ther latitude should he given to enable debt
ora to make equal disposition of their assets
Of preference, but wholesome policy demands that
this tight should be watched with strict vigilance
and iis esercise restricted TO the most limits
Confidence is the main pillar Of commerce. and the
courts thould he exceedingly careful no. to sanction
any practice calculated to impair H. The lixitv which
unfortunately too mach prevails in nercia and
fDsncis circles and which has recently produced suca
ronous effects, aod still reatens TO produce more
should re met with the determined opposition Of
c.us and IL Is with gr at satsa ston that have OBJ
served recent tendency OF judicial decisions upon
this subject In all those voluntary assignments there
must appear honest intention free II ON all suspicion
there must lie attempt to creditorsnotbing
reserved for the benefit OF the debtor there must be
nteimed6ng by the latter with the property; there
must BIZ actual bona de continued change of posses
en and the assets be converted into cash without
DELAY There has been sufficient departure from these
principles in the present. case to warrant me Ia pro-
nouncng the assignment void AZ least against the
plaintiffs. Judgment for plaintiffs, with costa receiv
err 10 be appointed; the plaintiffs TO have priority 10
the amount Of their m, and the assignee, Lamont 10
deliver over under oath.