Fort v. Martin Tobacco Co.

77 Ga. 111 | Ga. | 1887

Blandford, Justice.

This was a ,bill filed by defendants m error against plaintiffs in error to set aside an"-assignment, and for the appointment of a receiver. The court held the assignment to be void, because the schedule of'.list of creditors was not sworn to as the statute prescribes, and appointed a receiver ; and this ruling and decision of the chancellor is excepted to, and the same is assigned as error.

1. The schedule merely states that it is a schedule of the creditors, their residences and the amount due each; it does not set forth that the same is a full and complete inventory of all indebtedness of every kind of the assignors; and the same is sworn toby the assignors as just and true.

Such an inventory and schedule should have been sworn to as a full and complete inventory, etc., as prescribed in the first section of the act of October 17, 1885, which act provides for such schedule of creditors and liabilities of the assignor. See Acts of 1884 and 1885, pp. 100, 101.

The second section of this act declares that no deed or instrument of assignment . . . shall be valid, unless accompanied by the sworn schedule, as required by the first section of the act.

The schedule itself does not purport to be a full and complete inventory, etc., as specified in the act, and the affidavit merely states that the schedule filed is just and true; and this affidavit, while it may be entirely true (which we think just and true means in this case), yet it falls short of asserting that the schedule is a full and complete inventory, etc. The schedule may not be full and complete, yet it may be true. So we think the court was right in holding the affidavit insufficient. Should it have been amended? "We think not. If the affidavit was insufficient, as we hold, the assignment was void; it was no assignment, and the creditors of the assignors having filed their bill, it was then too late to perfect the assignment.

2. We also think that the assignment was void because the list of the assets of the assignors and the list of creditors were sworn to in the same affidavit. The two acts requiring lists of assets and of creditors seem to indicate that the schedules should be sworn to separately, and we so hold.

Let the decree of the chancellor appointing tho receiver be affirmed.