Saint Paul weekly Minnesotian. [volume] (Saint Paul, Minn.) 1858-1859, 1859-10-22


The Assignment OF Caldwell & Co.
Bankers.
Efforts have been made for some time past
by the depositors of E. & A. Caldwell, late
Bankers of this City, to break up their as
signment, that preferred certain eastern cred
itors before their depositors. Attachments
were sned out and their property levied up
on; but ON hearing before the District
Court, Judge Palmer sustained the legality
of the assignment and dissolved the attach
ments. In one of the cases, Judge Palmer's
decision is as follows:
STATE OF MINNESOTA,
District Court, I'd Judicial District.
The Milwaukee & Mississippi r. r. Go.
against
E. Caldwell and A. Caldwell, partners as
Caldwell & Co.
This is a motion to dissolve an attachment,
upon the grounds,-that it was not issued by
proper officer; that it was improvidently is
sued, and that the main allegations contained
in the affidavit on which it issued are false.
The motion is made upon an affidavit of
the defendants, and other papers specified in
the notice of motion.
The main grounds upon which the attach
ment issued were, false and fraudulent repre-
sensations by defendants as to their solvency
as bankers, thereby inducing plaintiff and
others to deposit with tn I'm; and an alleged
fraudulent assignment of their property to
their clerk, by which assignment their depos-
itors were put in the second class instead of
the first. These allegations are fully met and
denied by the affidavit of the defendants.-
Considerable testimony was introduced by
the plaintiff to sustain the charges against
the defendants but think it falls far short
of so doing. 1t amounts in substance to this:
That the defendants did not, previous to their
assignment, decline to receive deposits or no.
tify depositors of an intention to assign.
No representations of solvency were shown
to have been made by the defendants no
special inducements held out to increase de-
posts; no attempts to impose on the public
unless continuing to do business amounts
to such an imposition; or any transfers of
property of suspicious character, other than
the assignment itself.
Under this state of facts can the attach
ment be sustained? think not.
All the material allegations of the affidavit
on which it issued, have not been supported
by the proof The mere fact that no intima-
ton of the defendants intention to make an
assignment was given to depOsitOrs or the
public is not enough. No such intimation
could be given with safety, before completing
the assignment. Indeed, were any such CIV
en- secretly or in a suspicious manner, it might
be of itself ground for attachment, to the
prejudice of other creditors. Refusal to re-
ceive deposits would produce the same re-
suit 1t is here that good faith and fair deal
ing require that banker should use judg-
ment in respect to contemplated assignment
and not needlessly delay it in the hope or for
the purpose of increasing his assets by an
accumulation of deposits but when, after
using all honorable means to sustain himself
he suddenly finds his affairs brought to cri
sis, and is compelled to so assign, the fac
that he received deposits in the ordinary
course of business up to the date of failure,
ought not and cannot impair the legality Of
his assignment or render the assigned prop.
erty properly subject to attachment.
Most bankers place their depositors in the
first class in an assignment for the benefit OF
creditors; but this IS wholly matter ofjudg
ment and policy on the part of the assignors
and not Qfright on the part of the depositors
Some place the smaller depositors first, bu,
all this rather characterizes the bona tides o.
the assignor than affects the validity of thu
assignment and affords no legal basis OF
ground for an attachment
am unable, therefore, to discover any JUS
reason for continuing the attachment in thi.
cause in force.
The question in regard to whether the war
rant was Issued by proper officer or not,
do not decide as the motion must prevail OF
the merits.
The attachment is vacated with $40 cost.
Of motion.