The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-23
Supreme Cousrt-GsenernI Term.
Before Hon. Judge Clerl.e.


CONSTRUCTION or WRITINGS ASSIGNMENT FOE TEE
BESEFrT OF CREDIroRs--FRAUD.
JAN. 20.--Bellors us Pdrtridge.-The trust "to
vert the assigned property into money by sale either
public private, soon as reasonably practicable,
with due regard to the rghtfui interests of the parties
concerned" certainly contains express authority
delay the conversion OF the property into money beyond
what the eectu performance of tine trust necessarily
required II would defeat the object OF any trust OF this
kind and would be at variance with ths rightul
rests of all the parties concerned including those Of
the plaintiff TO force sale before it 'reasonably
practicable" On the Other hand, why should iynply
from the terms Of this clause authority to delay the
in deriment to those nterests9 To infer any such
intention would not only be contrary TO the rule that
unlawful meaning is never to be implied but to the
press import of the language employed and provision
In assignment 'to sell and dispose Of the property
upon such terms and in the judgment. of the
trustees may appear best" has been held not to
thorize a sale upon credit, the clause disputed in
this case nsy much more positively be pronounced
as implying no authority to the as ouSin to de-
required for the efficient performance of such dIty
which, of course, depends upon the peculiar circum
stances of each case and the condition 10 which the
assignor's affairs are placed To say that sale OF
property assigned for the benefit Of CREDITOR shoald
be made within the same period of time after the sxeeu
ton OF the assignment in all alike, without dis
elimination, would be mani 'estly impracticable, IN
deed absurd and this cannot be maintained there is
trustees controlled by the rules of law prohibiting all
delay except what suitable preparation and the inte
rests OF the creditors obviously demand II is also OBJ
jected that the power " to compound, compromise and
settle the claims assigned in the discretion IL the
sgnee, avoids the assig nment. In wo,iburn We,
Moher. referred by the counsel for the plaintiff
cded at spe cia term in Otsego county, the assignee
himself indebted 10 the asignor, and under pro-
vision Of this kind compromised with him elf; and all
the circumstances of the showed Il al the assign
me Mt fraudulent in f,ct. Justice Sutherlands
opinion in Grover Wakeman, applies to authority
TO compromise with creditors and Murphy vs. Bell de-
cded at Special Term. does afford sufficient light
this point enable ascertain for what
learned Judge considered this provision Objectionable
For my part see sufficient Why IL should
der assignment void, unless sale Of debts any
choice in action be also prohibited for sale at
public auction would leave mucn for corruption
and collision as the more direct and easy method Of
composition aud compromise Besides IL TIE assignee
does not possess this power he may often loss favora
bic opportunity 20 unite with others 10 composition
with falling debtor-thus losing the whole elam-per
bapa considerable amount due 10 the trusr-when, by
udcous and timely settlement could have secured
large portion OF II. While recognise these assign
menis at ALL the assignee must not bs Invested OF the
means aud the discretion plainly essential To the proper
execution OF hi. trust The provisions relative to the
notes u Harris and the debt due the plaintiff ars
nothing than the exercise OF the assignor's IN
doubted right 20 Meet preferences ani - prescro
he ordtr 10 witch his debts should be paid. This
Judgment OF the Special Term shoald be affirmed, with
costs,