« ForrigeFortsett »
the first part, C. D., of , of the second part, and the several persons, creditors of the said party of the first part, of the third part, witnesseth : That whereas the party of the first part is indebted to divers persons in considerable sums of money, which he is at present unable to pay in full, and he is desirous to convey all his property for the benefit of all his creditors, without any preference or priority other than that provided by law; ow, the party of the first part, in consideration of the premises, and of one dollar paid to him by the party of the second part, hereby grants, bargains, sells, assigns, and conveys unto the party of the second part, and his heirs and assigns, all his lands, tenements, hereditaments, goods, chattels, property, and choses in action, of every name and nature and description, wheresoever the same may be, except such property § as is exempted by law from attachment and execution, as freely described and set forth in the schedule hereto annexed and made a part of this assignment. To have and to hold the said premises unto the said party of the second part, and his heirs * assigns; But in trust and confidence, o, to sell and dispose of the said real and personal estate, and to collect the said choses in action, using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit, at public auction or by private contract, and with the right to compound for the said choses in action, taking a part for the whole, where the trustee shall deem it expedient so to do; then in trust to dispose of the proceeds of the said Popo in the manner following, viz.: 'irst. To pay all such debts as by the laws of the United States or of this state are entitled to a preference in such cases; Second. To pay the costs and charges of these presents, and the expenses of executing the trusts ãeclared in these presents; Third. To distribute and pay the remainder of the said proceeds to and among all the parties of the third part, ratably, in proportion to their respective debts; And, if there should be any surplus, after paying all the parties of the third part in full, then in trust, Fourth. To pay over such surplus to the party of the first part, his executors, administrators, or assigns. And the party of the first part hereby constitutes and appoints the party of the second part i. attorney irrevocable, with power of substitution, authorizing him, in the name of the party of the first part, or otherwise, as the case may require, to do any and all acts, matters, and things, to carry into effect the true intent and meaning of these presents, which the party of the first part might do if personally present.
And the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto, to execute the same faithfully.
And the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him all the information in his power respecting the assigned property, and to execute and deliver all such instruments of further assurance as the party of the second part shall be advised by counsel learned in the law to be necessary in order to carry into full effect the true intent and meaning of these presents.
In witness whereof, the said parties have hereto set their hands and seals the day and year first above written.
Sealed and delivered in A. B. [L. s.] presence of, E. F. C. D. [L. s.] G. H. Transfer of Stock.
For and in consideration of the sum of ten thousand dollars to me in hand paid, I do hereby sell, assign, and transfer to Jonas Whacke, three shares of stock belonging to me, of the “Poverty Bar Mining Association,” of the denomination of five thousand dollars each, and being shares numbered respectively, 321, 375 and 376, and now standing in my name on the books of said company. And I do guarantee, that all assessments to date are duly paid upon said shares and each of them, and I authorize the secretary or other proper officer of said company, to enter this transfer upon the books of said company, showing that I have this day transferred to said Jonas Whacke the said three shares of stock of the numbers and designation above mentioned.
Dated the 9th June, 1859. APOLEON GREENSTONE.
CHA PTE R v I.
ATTACHMENT AND ARREST.
FoR security in the collection of debts by action at law, an attachment may be issued against the property of the defendant, or the defendant may be arrested and held to bail in certain cases. The limits and plan of the present work will admit of but little more than a statement of the cases in which an attachment or order of arrest may be issued, the statute authorizing the discharge of an imprisoned debtor, and the corresponding forms.
An attachment may be issued against the property of the defendant at the beginning of the suit, or afterward, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment in the following cases:
The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment in the following cases: 1. Where the debtor is not a resident of this state. 2. Where the debtor has absconded or absented himself from his usual place of abode, or is about to abscond or absent himself, so that the ordinary process of law cannot be served upon him. 3. Where the debtor conceals himself, so that the ordinary process of law cannot be served upon him. 4. Where the debtor has removed, or is about to remove any of his property or effects out of this state, to the injury of his creditors, or with the intent to hinder, delay, or defraud them. 5. Where the debtor has fraudulently conveyed, assigned, or otherwise disposed of, or is about to fraudulently convey, assign, or otherwise dispose of his property or effects with the intent to hinder, delay, or defraud his creditors. 6. Where the debtor has fraudulently concealed, or is about to fraudulently conceal his property or effects, with the intent to hinder, delay, or defraud his creditors. 7. Where the debtor fraudulently contracted the debt or incurred the obligation, respecting which the suit is brought. The clerk of the court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing: 1. That the defendant is indebted to the plaintiff in a certain sum (specifying the amount of such indebtedness), over and above all legal set-offs or counter-claims, upon a contract, express or implied, for the direct payment of money, and that such contract was made, or is payable, in this state, and that the payment of the same has not been secured by any mortgage on real or personal property. 2. That the deponent has good reason to believe, and does believe, that one or more of the causes set forth in the several subdivisions of the next preceding section actually exists at the time of making the affidavit, reciting the facts upon which such belief is founded. Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, nor exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that, if the defendant recover judgment, or if the attachment should be dismissed, the plaintiff will pay all costs that may be awarded to the defendant, and all damage which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. An order of arrest against the defendant may be obtained in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state, with intent to defraud his creditors, or when the action is for wilful injury to person, to character, or to property, knowing the property to belong to another. 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such ; or by any other person in a fiduciary capacity, or for misconduct or neglect in office or in a professional employment, or for a wilful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. 4. When the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors." An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a county judge. . The order may be made whenever it shall appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in this chapter, above. The affidavit shall be either positive or upon information and belief; and, when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that, if the defendant recover judgment, the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder within the state, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court. When the debt sought to be secured is not over two hundred dollars, the remedy by attachment or arrest must be prosecuted in the Justices' Court, and under the statute provided for such proceedings in that court.
* Laws 1858, p. 152.