Preferential Assignment by Copartners. .

308. The Same; Another Form.

am

KNOW ALL MEN by these presents, that whereas I, A. B., of indebted to divers persons in considerable sums of money, which I am at present unable to pay in full, and am desirous to convey all my property for the benefit of all my creditors without any preference or priority.

Now, THEREFORE, I, the said A. B., in consideration of the premises, and of one dollar to me paid by Y. Z., of the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over, unto the said Y. Z., all my lands, tenements, hereditaments, goods, chattels, property, and rights in action of every name, nature, and description, wheresoever the same may be, except such property as is by law exempt from execution; to have and to hold the same unto the said Y. Z., in trust, to sell and dispose of the said real and personal property, and to collect the said rights in action, with the power to compound for the said rights in action, taking a part for the whole, where the said Y. Z. shall deem it expedient so to do; and then in trust to apply the proceeds of the said property and rights in action in the following manner:

1. To pay the costs and charges of these presents, and the lawful expenses of executing the trust hereby created.

2. To distribute and pay the remainder of said proceeds to the creditors of me the said A. B., for all debts and liabilities which I may be owing or indebted to any person whatever; provided, however, that if there shall not be sufficient funds with which to pay all my said debts, then the said debts are to be paid ratably and in proportion.

3. The residue and remainder of said proceeds, if any there be, after paying all my said debts in full, the said Y. Z. is to repay to me, or my executors, administrators, and assigns.

IN WITNESS WHEREOF, I have hereunto set my hand and seal, the day and year first above written.

In presence of

[Witnesses' signatures.]

309. Acceptance by Assignee.

A. B. [Seal.]

I hereby accept the trust created by the above instrument, and agree faithfully to perform the same.

[Date.]

310. Assignment by Copartners, With Preferences.

day of

Y. Z.

18

by and between A. B.,

under the name and

THIS INDENTURE, made the C. D., and E. F., doing business in the city of firm of B. D. & Co., parties of the first part, and Y. Z., of the same city, party of the second part.

WHEREAS the parties of the first part are indebted to divers persons and firms, in various sums of money, and have become and are unable to pay such indebtedness in full, and whereas, in order to have their assets and

Preferential Assignment by Copartners.

effects collected and faithfully applied in and towards the payment of their said debts, they have concluded to execute these presents.

Now, therefore, this indenture witnesseth: That the parties of the first part, in consideration of the premises, and of one dollar to them in hand paid by the party of the second part, at or before the execution and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, assign, and set over unto the party of the second part, all and singular the real and personal estate, merchandise, books, debts, books of account, bills receivable, promissory notes, contracts, debts, dues, assets, and demands of every nature, kind, and description, of the parties of the first part,(p) wheresoever such property, assets, and effects may be or be situated, except such property as is by law exempt from execution.

TO HAVE AND TO HOLD the above granted and assigned property and effects, and every part thereof, unto the said party of the second part, his successors and assigns.

IN TRUST, nevertheless, for the uses and purposes following-that is to say, to sell, dispose of, collect, recover, and receive the said property, moneys, and effects, and generally to convert the same into money; and after deducting the expense of drawing and executing these presents, and the trusts hereby created, then to apply the said, moneys and proceeds, in the first place, in and towards the payment of the indebtedness of the parties of the first part, to the party of the second part, to K. L. and to M. N. for professional services, a note for five hundred dollars, indorsed by O. P., and now held by the City Bank, also any balance which may remain justly due and owing to Q. R.; so that the several debts herein before mentioned shall be paid in full, if the assets be sufficient, and if not, then ratably and in proportion, without any preference.

And in the second place, and after the payment of the last above-mentioned debts in full, then in trust to apply the residue and remainder of the said proceeds in and towards the payment of the debts of the said firm in full, if the same be sufficient, but if not, then ratably and in proportion, without any preference, between the creditors referred to in this class.

And in the third place, and after the payment of all the partnership debts of the parties of the first part, if there be any assets or proceeds remaining, then in trust to apply the same in and towards the payment of the individual debts and liabilities of the parties of the first part,(p) the share or portion of such surplus belonging to each of the respective parties to be applied to the payment of the debts of such party (and not to the debt of the other), and without preference to the individual creditors.

And the parties of the first part hereby constitute and appoint the party of the second part their attorney irrevocable, to ask, demand, collect, sue for, recover, and receive the above assigned property and effects, and every part thereof.

(p) That this phraseology will not op- see Morrison v. Atwell, 9 Bosw., 503; and erate as an assignment of the individual compare, Scott v. Guthrie, 10 Bosw., property of members of the partnership, 408.

Preferential Assignment by Copartners.

And the party of the second part hereby accepts the trusts above created, and agrees to execute the same to the best of his ability.

IN WITNESS WHEREOF, etc.

311. The Same; Another Form.

day of

THIS INDENTURE, made the 18 between A. B. and C. D., copartners under the name, style, and firm of A. & Co., of parties of the first part, and Y. Z., of the same place, party of the second part.

WHEREAS the said copartnership is justly indebted in sundry considerable sums of money, and has become unable to pay and discharge the same with punctuality or in full, and the said parties of the first part are now desirous of making a fair and equitable distribution of all their property and effects among their creditors.

Now, THEREFORE, this indenture witnesseth: That the said parties of the first part, in consideration of the premises, and of the sum of one dollar to to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, released, assigned, transferred, and set over, and by these presents do grant, bargain, and sell, release, assign, transfer, and set over unto the said party of the second part, and to his heirs and assigns, forever, all and singular the lands, tenements, hereditaments, and all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt, and property of every name and nature whatsoever of the said parties of the first part. (9)

TO HAVE AND TO HOLD the same, and every part and parcel thereof, with the appurtenances, to the said party of the second part, his heirs, executors, administrators, and assigns.

IN TRUST, nevertheless, to and for the following uses, intents, and purposesthat is to say, that the said party of the second part shall forthwith take possession of all and singular the lands, tenements, hereditaments, property, and effects hereby assigned, and sell and dispose of the same for the best prices which he shall be able to obtain, and to convert the same into money, and shall also collect all and singular said debts, due-bills, bonds, notes, accounts, claims, demands, and choses in action, or so much thereof as may prove collectable, and thereupon execute, acknowledge, and deliver all necessary conveyances and instruments for the purposes aforesaid; and by and with the proceeds of such sales and collections, the said party of the second part shall first pay and disburse all the lawful expenses, costs, charges, and commissions of executing and carrying into effect this assignment; and by and with the residue or net proceeds and avails of such sales and collections, the said party of the second part shall:

1. Pay and discharge in full the debt due to the firm of M. & Co., of for the sum of $

2. By and with the residue and remainder of said net proceeds and

(2) See note (n) to Form 307.

Inventory.

avails, pay and discharge the several and respective debts, bills, notes, or sums of money due, or to grow due, from the parties of the first part to the persons designated in the schedule hereto annexed, together with such interest as may acrue thereon; and if such net proceeds and avails shall not be sufficient to pay the same in full, then such net proceeds and avails shall be distributed pro rata among said persons, according to the amount of their respective claims.

3. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the other copartnership debts, demands, and liabilities whatsoever, now existing, whether due or hereafter to become due, provided such remainder shall be sufficient for that purpose; and if not sufficient, then the same shall be applied pro rata to the payment of said debts, demands, and liabilities, according to their respective amounts.

4. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the private and individual debts of the parties of the first part, or either of them, whether due or to grow due, provided such remainder shall be sufficient for the purpose; and if insufficient, then the same shall be applied pro rata, share and share alike, to the payment of said debts, according to their respective amounts.(r)

And for the better execution of these presents, and of the several trusts hereby reposed, the said parties of the first part do hereby make, nominate,. and appoint the said party of the second part the true and lawful attorney irrevocable of them and of each of them, with full power and authority to do, transact, and perform all acts, deeds, matters, and things which can or may be necessary in the premises, as fully and completely as the said parties of the first part, or either of them, might or could do, were these presents not executed; and attorneys, one or more, under him, to make, nominate, and appoint, with full power of substitution and revocation, hereby ratifying and confirming all and every thing that our said attorneys, or his attorneys, shall do or cause to be done in the premises.

And the party of the second part hereby accepts the trust created by these presents, and covenants that he will faithfully perform the same.

IN WITNESS WHEREOF, etc.

[Annex a schedule describing the debts intended to be preferred in the second class.]

312. Inventory [Required by the New York statute of 1860(d)]. The following is a full and true inventory of all the creditors of A. B.,

(r) That such a provision as this does not render an assignment invalid, as operating, on its face, to expose the share of one partner to be applied to pay debts of the other, before his own have been paid in full, see Turner v. Jaycox, 40

Barb., 164. But the clause on this subject in the preceding form is to be preferred.

(8) By Laws of N. Y. of 1860, 594, ch. 348, it is provided that assignments in trust for creditors must be in writing, and

Petition for Accounting.

who has made an assignment to Y. Z., which bears date the

is due the sum of $
day of

street, in said place, for the year ending on the

[In like manner specify the names and residences of all creditors, the sums due them, and the consideration of the indebtedness.]

The following is a full and true inventory of the estate and assets of A. B., on the said day of 18 [the date of the assignment].

[In like manner specify other items of property constituting the assigned estate.]

313. Petition for an Accounting by Assignee (under same statute). To the Hon. H. L. S.,

respectfully shows: That A. B., of

did, by an instrument in writing, dated the day of assign and set over all his property to Y. Z., of the same place, as his assignee for the benefit of his creditors; and that the said Y. Z. has given and filed