21 Kan. 73 | Ark. | 1878
The opinion of the court was delivered by
It is contended by counsel for the plaintiff that, as the assignee is required to execute a bond with securities, the doctrine above stated ought not to prevail in this state. In this case the assignment and all the proceedings had thereunder took place prior to the adoption of the supplemental act of March 1st, 1876. (Laws of 1876, ch. 101, p.202.) And the mere fact that the assignee is compelled to give a bond that he will faithfully execute the trust confined to him does not relieve the assignor from the exercise'; of prudence in making his selection. A bond is some protection, and perhaps the fact that the assignee is insolvent, if otherwise suitable and competent within our statute, might not be sufficient evidence to declare an assignment fraudulent; yet an action on a bond would be a very unsatisfactory way for a creditor to obtain his portion of a trust fund. Indeed, if a creditor knew or believed he would be compelled to resort to litigation with an assignee to recover the demands allowed him, he would be more apt to seek a compromise or assent to such a settlement as the debtor might choose to offer, than if he was assured from the responsibility and high character of the assignee that the trust would be promptly and honestly discharged. Under the supplemental act of 1876, which empowers the creditors to select an assignee and authorizes the judge of the district court to appoint a receiver to take and hold possession of the property assigned, where the assignee is not responsible for the amount of the property, the evidence so received, if not absolutely inadmissible, would have but little weight or force in proving an assignment fraudulent. Under the act prior to this amendment in 1876, the evidence was clearly competent.
As the jury returned special findings that the assignment of Lindgren to Holmberg was made with the intent to gain time, and to hinder and delay creditors; and when the assignment was made, that Lindgren had means and property, not exempt by law, sufficient to discharge all his liabilities in full, and out of which his creditors could have collected all their debts by legal process, the other instructions of the court, criticised by counsel, need not be commented upon, as they could not have injuriously affected the plaintiff.
We have examined all the other questions raised by counsel, but do not think any special comments are required thereon.
The judgment of the district court must be affirmed.