Herschfeld v. Dexei & Co

• Decision Date: 31 January 1853
• Docket Number: No. 91.,91.
• Citation: 12 Ga. 582
• Parties: Morelly Herschfeld vs. DexeI & Co.
• Court: Georgia Supreme Court

12 Ga. 582

Morelly Herschfeld vs. DexeI & Co.

No. 91.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

Claim, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852.

This was a claim case in Muscogee Superior Court. Dexel & Co., creditors of E. & B. Mendhime, sued out an attachment and had it levied upon certain goods in the possession of the said E. & B. Mendhime, which goods were claimed by one Morrely Herschfeld, under and by virtue of the following instrument, the construction of which was brought up for the consideration of this Court.

This indenture, made at the City of New York, this 13th day of March, 1852, between Ernil Mendhime, of the first part, and Morely Herschfeld, of the second part. Whereas, the said party of the first part, is embarrassed in his business, and unable to pay his indebtedness in full, and is desirous of providing for the payment thereof, in such order of priority as shall be just. Now, therefore, this indenture witnesseth, that the said party of the first part, in consideration of the premises and one dollar to him in hand paid, hath sold, assigned, transferred and set over unto the party of the second part, all the estate, both real and personal, of him, the said party of the first part, including his stock of merchandize, in his store at Columbus, Georgia, and all his bills receivable, notes outstanding, credits, accounts, claims and demands, and all other of his estate, both real and personal, of every name and kind, wheresoever the same may be; to have and to hold the same unto the said party of the second part in trust, to take possession of the same, and to collect in all bills receivable, notes outstanding, credits, accounts, claims and demands, and to turn the said hereby assigned estate, into cash, and out of the proceeds thereof, after paying all the just and proper expenses in executing the herein contained trusts, to pay, in the firs place, the expenses of preparing this assignment, andto retain for himself, the said party of the second part, the just and legal compensation, for executing the herein contained trust, and after paying the above in full, then to pay in the second place, unto Benedict and Boardman, the amount which the party of the first part is indebted unto them for professional services, and which does not exceed one hundred dollars; and after paying the above in full, then to pay in the third place, unto Morrely Mendhime, the sum of two thousand dollars, in which amount the said party of the first part, is indebted unto him, in part for his salary as a clerk in the employ of said party of the first part, and the residue for cash, which he loaned unto the said party of the first part, and for which said amount he holds the promissory note of the said party of the first part, and also to pay in full unto Simon Lesserman, the sum of nine hundred and eighty-seven dollars and fifty cents, in which sum the said party of the first part, is indebted unto him, for so much money paid by him for the said party of the first part, having endorsed the promissory note of the said party of the first part for that amount, at his request, which notes the said Lesserman paid and still holds, and also to retain for himself, the said party of the second part, the sum of two thousand dollars, in which amount the said party of the first part, is indebted unto him, in part for cash paid for on account of, and at the request of the said party of the first part, having endorsed the promissory notes of the said party of the first part, at his request, and having paid the same, which he still holds, and the residue for cash loaned by him to said party of the first part; and after paying the above in full, then out of what may remain of the said net proceeds of the hereby assigned estate, to pay, in the fourth place, in full if sufficient for that purpose, unto all the other creditors of.the said party of the first part, the amount in which the said party of the first part is indebted unto them, respectively; but if not sufficient to pay the same in full, then to divide such last mentioned creditors, pro rata according to the amounts in which said party of the first part is indebted unto them respectively, and the said party of the first part does hereby constitute and appoint the said party of the second part, his true and lawful attorney forhim, and in his name, to do and perform every act, deed and thing, in order to carry into full force and effect, the provisions of this assignment. And the said party of the second part, in consideration of the premises, and of the one dollar to him in hand paid, by said party of the first part, does hereby accept of of this assignment, and become a party thereto, and covenants and promises to and with the said party of the first part, that he will perform and fulfil the trusts herein contained, according to the true...