·3,80 'Ya.s
FEBERAL RE}PORTER.
chargeable with; and hire for 18.61 and .1862, he ,to th.e crops,for yeaJ;sj and, being thes.ole owner, the loss as. a matler .of course was h!a alone. ,
TOMLINSON
& WEBSTER
MANUF'G
Co. v.
SHATTO.
(Oircuit
D. Minnesota.
April 2,1888.)
1.
:,A:judgment creditor is entitled on the return of an execution unsatisfied to ,anI order for the examination of the debtor, and to an order forbidding any tra.nS.f.e.rOfhis property.;...an.d when such orders hay been issued and.served' ...e the judgment creditor a lien on the debtor's equitable assets disclosed, , and can obtain the 'appointment of a receiver, the' proceedings supplementary .to exeoutionbeing li'ght of a creditor's bill. SAME--E:fFEC'l' OF ASSIGNMENT :QY ;DEBTOR FOR BENEFIT OF CREDITORS.
PROCEEDINGS-ApPOINTMENT OF RECEIVER.
2.
8.
The, that a voluntary.a8signmen,t of his has, been made bya judgment debtor to an. assIgnee of hIS own chOOSIng. subsequently to proceedings'liupplemeptary to execution taltel). against him by a judgmentcreditor, is no bar to the appointment ot a receiver.
SAME-CoMPELLING CONVEYANOE OF REAl, ESTATE TO· REOEIVER.
4.
When, on examination of a judgment debtor in proceedings supplementary to execution, it appears that he 'is entitled 'to real estate subject to mortgages, it is competent for the court to compel him to convey to the receiver appointed at instance of the judgment creditor. lIIAY BE COlllMENCED. 60 days within which to make a return to an execution; yet when execution is returned unsatisfied, a judgmentoreditor may take supplementar'y'; propeedings without waiting for the. expiration of the said 60 days.
'In Equity..Motion for.the' of a receiver. " Tomlinson & Webster Manufacturing Company,plaintiff The c,reditor, apply by motion for the appointrnent of a reand ceiver after, disclosures up,on, of Cliarles W. Shatto, defendant and jup.gWimt debtor, inprocaedings supplementary to execution. , " .. George d.RipWy, for plaintiff. . , . Charles H. Woods and Jilred W. Reed, for defendant., ,NElSON, J. A motion 'is, made for a receiver, after disclosure, upon an exarnipati()u in proceedings supplementary to execution, in accordance with the state law and practice. The appointment of a receiver is opposed for the reason that after thE}' proceedings had, been instituted, and an-order served upon the judgment forbidding any disposal. of his property or interference therewith, he made voluntary i.o an assignee of pis own selection under the of the, state QfMinnesota, enaoted in 1881. I have the arguments of counsel and duly considered the 1.. That the return of the,exeQution unsatisfied entitled the plaintiff to the order for the. examinatipn of the judgment debtor, and the erde!"
TOMLINSON & WEBSTER MANUF'a·· CO. 'IJ. SHATTO.
881
forbidding any transfer of his property, or interference therewith by him, so that property not subject to execution could be reached and applied to the payment of the judgment. 2. That the order for the examination of the debtor when issued and served gave the plaintiff a lien on the equitable assets of the debtor. 3..Thallie was at this time ,entitled to the appointment of a receiver to ai<iJn.th¢application of the debtor's property illterests to the payment oithe judgment, and the assignment after the commencement of the supplementariproceedings should not prevent the appointment. 4. This proceeding supplementary to execution is a substitute for a creditor's bill, and has a greater scope, and when properly commenced the'vigilance of the judgment creditor is rewarded by a priorty and lien eq]iita,ble assets; and the discovery upon tMeumination in this case shows equitable assets; and that the plaintiff is entitled to a receiver. 5. 'rhe examination also shows real estate belonging to the judgment debtor territory, which is only incumbered by mortgages, the legal title being in him. It is necessary for full relief that a conveyance should be made by· the judgment debtor of this property, and the power and legal authority of this court is ample to enforce it, by an order, upon the defendant to make such a conveyance. 6.:rlWlllw fixes the time of the retqrn of the execution by the officer, at anyti!file .within 60 days. After the return of the execution uns.'ltisfied .sllpplcwental'y proceedjngs may be commenced. The plaintiff is not required to wait until6Q days have expired. An order will be.entered granting the application fOr a receiver, and {uriber order that the .said .defendant, Charles W. Shatto, upon due noti<:e part of and upon being served with a. copy of the order appointing a receiver, attend before me.M my chambers in the custoQl·house at St. Paul, at a time to be named in said notice, and then ai).d,there"under my direction, execute to the receiver, a conveyance of the rC!1l property described in thE' disclosure of the defendant, and on assignment of such. property in trust, to be disposed of and applied t SO far as shall be necessary in pursuance of his trust duties as .such receiver. Consult Rid. & B. Supp. Proc. (3d Ed.) tit. "Priority," etc.; P<Jrier v. Williams, 5 How. Pro 441, affirmed, 9 N. Y. 142; McDerStrong, 4 Johns. Ch. 687 j Edmeston v. Lyde, 1 Paige, 637; Corning v. White, 2 Paige, 568; Lynch V. Johnson, 48 N. Y. 27; Plint v. Webb, 25 1(inn.264:Towne v. Goldberg, 28 N. W. Rep. 254; also Wait. Pro
.:tJ',,:l 'I : >;r:,i,1
'Ttl (
13,AIill'OU:a6t' H'
,at..,:",,;
:1)
"lJi?UC\
",:
',_,' C
i.l"
','J J,-1','-'
March 19; 1888.) , ;,:;:f:. \}{,.li:JirJl'"J ;'.';1.'
,
s; ,tqtal shlplI1ent; not under l1 er does not' Mlthollze the illd sell parts of tlleshipllient of', B'Verage qualtty; M or 'above: the lIlI1it; and! thiIl thrQwthe part unsold upon ,the han'ds of the tos.e11 !>!16 lot, or. a,.t to ,the whole In snch manner as 'to realtze the prlce,brolted for, the whole lot. . '.d:··':.l;: ; r, :-:'.:'Il 0,,: 'c<,:;r--: '" "', '. ';
,41!D
,PONWC'l'· ":
"
9. 8.uf.....Exc}llEDtNG AUTRO'itITY..;;..Lu,;rULI'1'Y'I'O 'CONSIGNOR. I
A;consignee 0,£ of, qualities is, , the wh\?le in one 10'. at ahm,iteli price per ton, seUsa 'part of , 'at a pi'iQe above'tbll' litnit, but does not sell the 'remaitidet," acedunt'to the consignol' for the whole at the price limited..
he
toaell quality is ·liablll to ,', '
(Syllabu8 by tks Oourt.)
At Law. ,Action against A. Balfour and others. FO'.c <to, .Kel1xJgg,rfor plaintiff. ' ,I' I ,Page for defendants. ' , Before SA:WYER, Circuit Judge."
·SAmER:,'J'. ,PriortoJuly 30;,1885j'LeonBlum' :had a: shipment of three qualities :,of n"lothet-of-pearl shells, amounting in the aggregate ,to 25 tons and a fraction, in the handsof·the defendants'Liverpool agents for sale. He transferred the shells to plaintiff, and on JUly 30th notified defendants 'Of.the fact. He introducatl plaintiff to Mr,Bruce, one oithe defendantB,anda verba:l arrangement was made between Mr. Bruce,on whalf of the defendants, and plaintiff, to continue theIll in: defendants' hands' for sale \lnti! theyHwere otherwise disposed of. In the language Of the plaintiff, they were to be sold at "eighty-five ponnds sterling per ton for the tota:lconsignment" ,Plaintiff: also used the word "telquel," signifying"asis." In the language of }Ir.Bruce, defendants were authorized "to sell the total shipment not under eighty..five pounds per ton," and these statements are corroborated by two other witmisses,Blum and Marshal, who were present. ,Mr. Bruce made a pencil memorandum of a dispatch to be: sent to hill Liver'pool house, arid p'romised to send Mr. Levison a <copy of his dispatch.' Accordingly a; letter dated on that day was immediately sent by defendants to plaintiff, in which they inclosed copy of inv()iceand, othe:r papers ':relating to the matter, and said ,among other things: "As requested by you, we will cable our Liverpool friends as follows: 'Blum shells, total shipment, arrange at not under £85.' By mail we shall advise Messrs. Balfour, Williamson & Co. that Mr. Blum has transfened the entire shipment to you, and if unsold they will, when called upon, deliver the same to your order on payment of freight and all charges which have been incurred at Liverpool. It is understood that if our friends sell the shells they will charge the usual commission of 21 per cent., exclusive of brokerage, on the gross amount, in which case you will receive credit for commissions now charged by us on the amount