The New York herald., 1878-07-09
THE COURTS.
Assignees Not To Be Discharged Be-
fore Accounting.
A NOISY BABY CARRIAGE.
The Mistaken Placer of a Wide Awake
Deputy Sheriff.

Judge Van hoeseu, of the Court OF Common Pleas,
has just rendered important opinion interesting
aasigness, In the matter OF the assignment Of John
u. horsfail, Major Of the Twenty-sscond regiment.
Mr.. Horsfaii applied. after composition with kis
creditors had been Effected to vacate order dis.
charging the assignee John W. Hasse, tho ground
OF the attsrs failure the assets comi
tnso his hands The petition Of Mr. Horsfal sets forth
numerous alleged OF the assignee, among
Others claim OF the payment Of exhorbant fees TO
counsel, appropriation OF money to his own use and
smbezzlement OF funds belonging the estate, and
calls for accounting OF the assignee ana the payment
OF the amount found due. The petition further states
'that the composition paid and The creditors salts
ned Judge Van Hoesen In his opinion says:-"Ths
order which Horsfai moves to set aside was made
ny Judge OF Court aud the only question before
me ID whether It erroneous. The order pro-
vdes the assignee and his be relieved
and discharged from all liability to the creditors OF
Hoesall aud that the bond OF .he assignee be
celled. The order was founded upon the consent Of
the creditors. there not having been accounting
the assignee 1t does not purport discharge
Nssignee and his suretcs from their responsibility
,Horsia the assignor and would nor therefore be
Al impediment to his demanding aud obtaining q
complete account No creditor comes forward
and asks the assignee to account The call
counting comes from The assignor, and Il is he
asks tho Court aside the order discharged
shs assignee his sureties from their liability
assignors creditors. AS tho asxgnor IL aggrevod
By the order / shall deny this application, but 1
application were made by any creditor There
part OF tho remains unexecuIed. Speaking
solely for mysof am prepared 10 go still further,
And 10 Say that undor no circumstances whatsoever
should an assignee be discharged without first having
rendered his account. In this case there q COM
position effected between the assgnor his cred
tuily carried out Not all the creditors have
been paid .and until they fully paid their right
IL IL impossible to say whether the Of
the assignor IN tho hands OF the assignee have
composition agreement The performance OF SO IN uch
OF that agreement the assignee took upon himself
ana a matter Of he is not entitled 70 ais.
charge till his duty has been done. The dis
sSna1se was sasy Pre- q,v. the assignee s IN
1or himself whether no has done his wh0io
SW' %.s' mn ana says ..,ao IN elect: ,na: nc mas
}proper manner. which iact should put end 10 all
inquiry. But the asignor says. on the other nand,
that the assignee has enner spent unlawfuy or he
now retains his hands assets that requisite and
necessary for The carrying out OF the composition
aRresmeut well otner assets which ought 10 be
returned to him alter the credilors have been fully
satisfied. The very existence OF this dispute shows
tnAt there be but sale course pursue, and
shat require accounting 1t all the creditors
have not been paid It the fault Of tue asgneef Has
she assignor made agreement OF composition
ywhich he had not the of performing, or has
She assignee wasted the assos 30 that ne 10 to blame
Judge Van Hoosen then goes on 10 say that
nothing but an accounting will satisfactorily answer
accounting 70 sot aside the he refused
do, though he thinks the same erroneous. Ho tnen
iadds:-"rhough ! do not feel justified IN setting
.asids the order, yet the assignee csnnot
escape accounting, and tho very excuse he
tonsrs for not accounting seems 10
ne conclusive reason why he shocld
account. The assignee was creditor
ioi Horsfail. HIS essential to the making
OF the compensation agreement HIS claim large
one, ana without ms joining In tho composition it
could not nave boon made. He swears and proves by
Others that he would not consent tho composition
until horsfal agreed that he should DO called
account Ms assignee. His own version OF the
acton puts him IN the position Of trustee, who, being
fnso u CREDITOR uses his power such from
h,s cesu quo trust the surrender OF the Invaluable
right OF knowlng the way IN which the trust
estate IL spent No court will tolerate such
ycouduct on the part OF trustee. Such . trustee
ought to be removed and forthwith compelled TO &C
count.n Judge Van Hoeson thcn says inat although
Nhe question doubtful he nclncs to tho opnion
shat The assignee DC removed upon the petition
OF the assignor aud cites several authorities But he
adds that the creditors ought TO be brought into court
DO that they may DO heard the question: As they
,are not before tho Court he concludes that ne
scannos grant motion remove the assignee Mr..
George 9. Lay, Jr., appeared Tor tho molon, and
Nessrs Lawrence Waenner IN opposition.
TT