Noyes v. Johnson

For an assignment to be effectual under Pub. Laws of R.I. cap. 723, § 1, of June 20, 1878, to defeat an attachment, it must be absolutely without preferences except such as chapter 723 allows. Both the assignments here contain prima facie, at least, preferences which chapter 723 does not allow. The earlier assignment provides that the assignee, after converting the assigned property into money, "shall first pay and discharge all the reasonable costs, charges, and expenses of and incident to the preparation of these presents, and the execution of the trusts hereby created," c. The second assignment provides, that "after paying the expenses necessarily and properly incurred in and concerning and incident to the creation and execution of the trust hereby created," then the assignee shall pay the other creditors in full if the proceeds of the assignment are sufficient; if not, ratably. Under both of the assignments any reasonable debt incurred by the assignor in or about the making of the assignments is preferred to his other debts, being put on the same footing with debts and expenses incurred by the assignee in executing the assignments. Of course it might happen that no such debt was incurred, in which event the language would be mere form; but in the case at bar that is not pretended. We therefore give judgment for the defendant.

Judgment for return and restoration, ten cents damages andcosts. After this opinion had been given the plaintiff moved for a rehearing of the case. This motion was heard March 5, and dismissed March 12, 1881.