The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-03-23
QUESTION OF VALIDITY.
The Suit OF wiiIoughby VS.. Reynolds AR
gusd Before Judge Speer.

REYNOLDS
gusd Before Judge Speer.
The suit of Willoughby against Rey
nolds, involving the validity of an as
Segment, was argued before Judge
Speer on Saturday morning. the case
having been submitted on an agreed
statement of facts. The facts agreed or
were that in June, 1895, Luciano Guer.
ra, who had for some years prior tc
that date conducted a grocery store In
East Park street became insolvent and
for the purpose of assigning all his
property for the benefit of his creditors
Tom A. Willoughby, the plaintiff was
given deed of assignment in which the
John Caplice company was named as
preferred creditor; that Willoughby
took possession of the assigned proper
ty, and that on the day he took posses
sion p. j. Brophy & Co. began a suit
against Guerra to recover the sum of
S337.53, and, under a writ, Sheriff Rey-
nolds attached the stock OF groceries
which had been assigned to Willough-
by. Then followed a replevin suit, in
which Willoughby, as assignee, was
plaintiff and the sheriff defendant.
The statement of facts on file admits
that the assignment to Willoughby was
made in good faith ana the defendant
relies on the clause in the assignment
which permits the assignee to sell the
stock of groceries which had been as
signed to him for cash or on credit, and
also disputes the sufficiency. validity
and legality of the assignment.
Mr.. Leehey. one of the attorneys for
the plaintiff, argued that an assign
ment which permitted the assignee to
sell for cash or on credit was, by a pre-
ponderance of the authorities, valid
Mr.. Lindsay in answer to the argument
made by the plaintiffs attorney. quoted
authority to the contrary and stated
that the assignment having been made
in tripartite, the creditors of the as
signor being named as third parties to
the deed of assignment, il was neces-
sary to the validity or the assignment
that a creditor or creditors of Guerra
also execute or accept the same, and
that Ii appeared from the assignment
itself that none of the creditors had ex-
ecuted or accepted the assignment
Judge Speer took the matter under ad-
visement.
A motion for judgment on the plead
ings in the case of John Harbolich
gued before Judge Speer. 1t is an action
in which Harbolich sues upon a prom
issory note executed by the defendant,
and claims judgment for $S32.70. being
the balance due thereon. The defendant
admits, by his answer, that the amount
claimed is due, and alleges that the
note is secured by a chattel mortgage
made in the year 1890 on a house in
Meaderville. and also that the action is
not brought in conformity with the pro-
visions of the code of civil procedure
relating to the foreclosure of mort
cages upon personal property. After
making his answer to the complaint
the defendant moved for judgment on
the pleadings, and his attorneys con-
tended that an attachment suit did not
lie where there was any security for
the debt. Counsel for the plaintiff
claimed that the plaintiff had a right
to waive such security as he may have
and sue upon the note direct. and that
he had a right to exercise his election
whether to sue on the note alone or
sue on the note and mortgage together;
also that n motion for judgment on the
was improper. the defendant
having admitted the indebtedness by
his answer. The matter was taken I'M
der adyiSpmant