The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1859-10-21
Local Affairs.


INTERESTING DECISION. the late
failure of Messrs Caldwell & Co., of this
city, several parties to whom they were in.
debted sued out attachments, and levied on
their property.
In all these cases, Caldwell & Co., by
their Attorney, Lorenzo Allis, ESQ.,, moved
to vacate aud set aside these attachments.
10 the case of Hendy vs Caldwell & Co.,
argued and submitted some days ago in the
District Court, the attachments was dis
solved-the motion having been based on the
original affidavit for the attachment alone.
On Saturday last, similar motion came
up in the case of the Milwaukee Il Missis.
sippi Railroad Company vs. Caldwell &
Co., before Judge Palmer of the District
Court, based however on counter ffidavits,
produced by the defendants, as we'll as upon
the original affidavit on which the attach
meut was issued.
The plaintiffs produced and examined in
open Court number of witnesses in sup
port of the attachment, and the case was
fully argued by counsel on both sides
Messrs. Van Etten & Officer appearing for
the Railroad Company.
Judge Palmer rendered his decision in the
case on Monday, vacatiDg the attachment.
AS the decision is matter of general inter-
est to the mercantile public, we give it in
full:
STATE OF MINNESOTA,
District Court, I'd Judicial Dis't.}
The Milwaukee and Mississippi r. R. Co.
against
E. Caldwell and A. Caldwell, partners as
Caldwell g. Co.
This is motion to dissolve an attachment,
upon the grounds, that it was not issued by
proper officer; that it was improvidently issued,
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 sOlyency
ers to deposit with them and an alleged frau.
dulent assignment of their property to their
clerk, by which assignment their depOsitors
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 re.
ceive deposits or notify depositors of an inten-
ton to assign.
No representations of solvency were shown
to have been made by the defendants; no spe-
cial inducements held out to increase deposits
no attempts to impose on the public--unless
continuing to do business amounts to such an
impostion nor any transfers of property of
suspicious character, other than the assignment
itself.
Under this state of facts can the attachment
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 intimation of
the defendants intention to make an assign
ment was given to depOstors or the public is
not enough. No such intimation could be
given with safety, before completing the as.
signment Indeed, were any such given Sc
cretly or in a suspicious manner, it might be of
itself ground for attachment, to the prejudice
of other creditors. Refusal to receive deposits
good faith and fair dealing require that bank.
er should.use judgment in respect to a contem-
plated 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 sus-
tain himself, he suddenly finds his affairs
brought to a crisis, and is compelled to assign,
the fact that he received deposits in the ordi
nary course of business up to the date of fail
ure, 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 of judg-
ment and policy on the part of the assignors,
and not Of right on the part of the depostors.
Some place the smaller depositors first, but all
this rather characterizes the bona .tides of the
assignor than affects the validity of the assign
ment and affords no legal basis or ground for
an attachment.
| am unable, therefore, to discover any just
reason for continuing the attachment in this
cause in force.
The question in regard to whether the war
rant was issued by proper officer or not do
not decide, as the molten must prevail on the
merits.
The attachment is vacated with $40 costs of
motion.