Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-02-22

would be closed down by the savings and loan de
positors. The only parties he could appreheud
would move against the bank were the commercial
depositors. And the amount on comm lrcial deposit
was small that It seems to me il should not have
excited his apprehension.
Then We have some other circumstances. II ap-
pears that this assignment was drawn up and pro
yided for the payment to Mr.. Smith OF three per
cent upon the assets of the bank. or whatever was
collected that passed through his hands. Now,
that in al probability, taking the condition OF the
bank would have amounted to in the neighborhsod
of so 600. do not know whether that is any con-
sideration to Mr.. Smith or not I do not know
whether he IS such wealthy man that 81, COO
would be Indifferent to him.
Mr. Haymond-That provision says that his COM
pensation shall not exceed three per cent. and the
law, as you will recollect would have allowed him
very much larger sum-
Inc Court am aware OF that. Ii is evident
however, from the fact that the three per cent was
put IN IN that way, that he accepted it. and in all
prooaelhty would have received IT, because the law
SHOWS larger percentage. He had reason to ex-
| claim, " pass uPou MS
mooLo ALLOW HIN THREE PER CENT.
But IL MT smith had believed and If 7 thonoh, .h,
ne oeeseu :, that time, that the bank was reall,,
; A - sn1s ~ was necessary to make the al
| that he put three per cent in th ~ 'iie iece
ment; but the circumstances, when -; <, :
matter in the light that he did not eonsoa t me
Dank 1nsOlNent, point 10 this ~
importance, because he would have received f \.
something like so, 900, and that could have been
equal TO his salary for number of years and IL s
one Of the circumstances that, in all probability
may have Influenced him largely in his actions
But the most important circumstance in my
judgment, against Mr. Smith, is the fact that he was
indebted to the bank. do not find any case where
this question has been decided squarely upon that
point; but the point has been made in this way
Is there any conflict between the interests
of the b..nk and the assigneei Now,
let US see what this would lead TO-
Here is man who is indebted to the bank in a sum
that is sufficient to amount to something's believe
it was somewhere between ten and sixteen thousand
dollars. 1t was Of sufficient consequence therefore
to influence the conduct of the man. and is as fair
an amount upon which to be governed in fixing a
principle
as IF IT WERE MILLION.
Now. Mr., Smith, as ! presume, WAS engaged in a
business that required large amount OF capital and
in which he night become involved | speak of
these matters because this class of men are subject
tn be on one day wealthy and the next day to be
insolvent We see these things every day,
and We can well suppose that cir. UNI
stances might happen that he could not
well pay this amount, and that by taking
this assignment he could defer the time Of settle
ment. Suppose, on the other hand, the assignment
had been made TO person who was not indebted to
the bank See what would have been his duty. He
might have seen that Mr.. Smith was in such diff
culties that it was necessary to enforce the pay
nnent. he m ght enforce 1t immediately after the
assignment was made and he could have been ady,
like any other creditor Of Mr. Smiths, to have used
the means provided by law to collect the indebted
ness whenever he had au opportunity to do SO.
think there is the difficulty in placing debtor,
IN case OF this kind, in the position of
assignee. He is not in position that
the creditors can say they satisfied with him,
and that they believe that-he would have enforced
payment Of this indebtedness at the proper time to
save the insttuiio the amount that was due- That
think, is the strongest point against Mr. Smith in
accepting this assignments
Now, in relation to these other Directors,
HIS CONDUCT Is NOT FREE FROM BLAME
In that matter It appears that there were SIS eco
due from certain stockholders for their STOCK and
certain other Indebtedness. Mr. Cadwalader said
the other day that at the time Of the making of this
assignment he was solvent, and that he
could have paid his Indebtedness to the
bank. Now see how this matter appears by APP
pointing Mr. Smith, to the disadvantage
in oil probability of this bank Mr. Cadwala5er one
OF the men who made this assignment, and the man
who acted as President in making it, was indebted
TO the bank and his debt has never been collected
Yet he was not nsoyent, as he says, at that time
and it ought to have been collected of him Here
are these stock subscriptions that it was easy to
have collected and it seems to me that all these cir
cumstancas show that Mr.. Smith has not carried ont
this trust in manner that is impartial and as a
proper ass gnee would have done.
In relation to the Peoples Savings Bank it is
Necessary to say but little for the That It is
Smith, either knowing his duty or dlsregaIding
it, has allowed himself 10 be controlled il seems by
the Directors Of this Peoples Savings Bank | am
inclined to think in regard to that mltter-yet it is
OF very little importance--thRt some Of the men
who are connected with the Peoples Sayings Bank
and iir. Smith we're over Jealous the matter
has they had come to the conclusion that
THEY DID SEE WAY OUT
o. this difficulty for these men who had made de-
posits in the Odd Fellows Savings and Commercial
Bl.nk, by having them take stock in the Peo-
pies Savings Bank, and in that way they could
work out perhaps dollar for dollar. But in their
over zeal To make others see what they
Thought they saw, they were guilty of acts
that they ought not to have been guilty of They
were guilty of acts of coercion, you might say, By
threarniug these people with lawsuits and many
other things, which ought not to have been done.
And, | said before. l think 1t was a matter Of
over zeal more than anything else, and not so much
a desire TO get an advantage
Taking, then, all of these facts together it is
clear TO my mind that Mr.. Smith was an improper
assignee and that ne ought never to have been
appointed, and that being an improper assignee,
that that is sufficient ground to set aside the assign
ment. The judgment is that Che assignment be set
aside 80 ar rs the parties are concerned who have
contested the assignment on the ground Of fraud,
and that it be affirmed as to all others.