The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-11-26
SUPREME COURT DECISIONS
OCTOBER TERM, 1851.
Reported Weekly by Robert Shot
well, AttOrney.nt-l.aw.
MAYER Il BRO,

MAYER Il BRO,
vs..
SHIELDS, MULHoLLAN & Co.
Appeal from the Circuit court Of Rankin
county, Hon, A. G Mayors, Judge.
A sufficient statement Of facts will be
found in the opinion of the court, which is
given in full.
Buck Il Clark and p. Henry, for appel
liant,
Lowry Il McLaurin, and J. NJ. McCas-
kill. contra.
CHALMERS, c. Jy
Held
The deed of assignment in this case, ex.
acts from the creditors u release in full or
their demands, as II condition OF receiy-
ing any dividend under it. There are some
| States which sustain assignments OF this
character, while others denOunce them US
fraudulent and void on their face. The
quite equally divided. II we concede
that such stipulation is admissible by
one who, In protesting to transfer his
property to his creditors, puts 1t tempo
rarity beyond their reach by the ordinary
process of law, the assignment in the pres
ent case cannot even then be sustained. 1t
violates one of the essential requirements
of such instruments according to the views
of those courts which admit the validity of
! such stipulation at all. 1t specifies no time
within which the several creditors must
| signify their assent to or dissent from the
proposition to surrender their debts and
| yet it provides for pro rata distribution
of the assets among such as shall accept it.
| The consequence is that the assignee never
knows when to begin TO make distribu-
ton. He can never determine what any
creditors pro rata Is to be, until he knows
what creditors are coming in, and, as the
period within which they may do this is
unlimited, so also must be the delay in the
collection of any and all the debts.
In States which permit the insertion Of
provisions like this, 1t is held that there
must be reasonable time limited, within
which creditors must make their election
and signify their acceptance or rejection OF
time, will depend on the circumstances of
each case. 1t must not be SO short as to
deprive creditors Of fair opportunity to in
vestigate and determine the question, nor
yet so long us to prodocc unreasonable de-
lay in the application of the property to
the liquidation of the debts. But II no
time whatever is specified, the deed neees-
sarily and inevitably works u fraud upon |
creditors None Of them can receive any |
thing until all have made up their minds, |
and AS no time Is fixed within which they |
must do this, the trust can never be wound
UP save ny inc lnttTtTpositloho VI u couft |
of equity.
No court will permit man to place his |
property even temporarily beyond the reach |
of legal process, burdened and cucumber
ed by such conditions as this. The deed |
with such stipulations necessarily causes,
not only that ordinary delay unavoida-
BILE in all assignments, and which are there
fore tolerated by the law, but delay |
which cannot be ended by any provision |
contained in the instrument itself. This
thwarts and defeats the objects which it |
processes TO have In view. 1t is on this ac-
count void on its face, and should have |
been so declared by the court. As 1t was |
not necessary to a decision OF this case
that We should decide whether stipulations
In deed of assignment, exacting releases
of their demands in full from all creditors |
as condition of sharing In its benefits, are |
admissible under any circumstances, we |
pretermit the expression of an opinion on |
that subject, until case shall arise when |
its decision is essential
The court below should have instructed |
the jury that the assignment was void on |
its face, and should have directed them TO |
return verdict for the plaintiffs in attach
ment. |
Reversed and romandcd.
TO Biz RKPORTED.l