Blair v. State Bank of Illinois

• Decision Date: 31 July 1843
• Citation: 8 Mo. 313
• Parties: BLAIR v. STATE BANK OF ILLINOIS.
• Court: Missouri Supreme Court

8 Mo. 313

BLAIR

v.STATE BANK OF ILLINOIS.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

BLAIR and GANTT, for Appellant. 1. That, as assignee of H. H. Raisin & Co., he was vested with the same authority over the property and effects assigned, which R. & Co. had possessed before the assignment. 2. That it was his duty, to the assignors and creditors, to make those effects as available to the extinguishment of debt as circumstances would permit. 3. That the assignors would unquestionably, under the circumstances, if reinstated in their effects, have availed themselves of the Bank and the depreciation of her notes, to pay their liabilities to her in her own paper, which had become cheaper than money. 4. That the fact that the creditors will not receive full payment does not appear in the case, and would not affect the argument if it did. 5. That, by the 2d section of the act of the General Assembly of the State of Illinois, approved January 31, 1840, it is provided, that “The State Bank of Illinois shall, at all times, receive its own bank-bills in payment of any demand, debt, or claim due to the Bank from any individual or corporation whatever.” 6. That the dividend made by defendant comes within the meaning of that section. 7. That, without such a provision in the law of the institution, the debt of the defendant to her was subject to be set off by her notes, under the general law. See Jefferson County Bank v. Chapman, 19 Johns. R. 322. 8. That, in this action, the court cannot consider the conduct of defendant as trustee, determine the extent of, or pass upon the manner in which he has exercised his powers, under the deed of assignment; his individual indebtedness to the Bank, on a dividend declared, an account stated, being the only subject before the court, and whether he has paid off the debt the only point to be determined.

BOGY and HUNTON, for Appellee. By the provisions of the charter of the Bank of Illinois, the debtor has the privilege of paying in the ordinary manner, or in notes of that institution. Does this election extend to his assignee? first, upon general principles; second, as to the individual case. 1. The election is a personal privilege of the debtor. As in the analogous cases of infancy, &c., he alone can claim the advantage of it; if extended to third persons, the right would not operate to the personal benefit of the debtor but for their advantage. This was not intended by the charter. The provision was made for the benefit of the debtor himself, and not for his creditors, or their representatives. In this case, the assignors being wholly insolvent, as appears by their deed of assignment, the exercise of this privilege by the assignee would be simply for the benefit of the other creditors of the assignors. 2. The deed of assignment itself furnishes the guide, and marks out the duty of the trustee. As he can claim the exercise of no authority or power not there given, so a reasonable compliance with its provisions and directions furnishes him, in all things, an ample protection. The specific object for which the assets are placed in his hands is there clearly and distinctly designated. He is to pay certain creditors, and the assignment itself is, in effect, a payment of the funds accordingly. The assignors, in the deed of assignment, did not save the right of electing to pay in the notes of the Bank of Illinois, and not having thus saved it, they have waived it, and the assignee himself has waived it by declaring a dividend in the usual manner upon the specific claim. The assignee seeks to pay the Bank in its own notes, not under the direction of the debtors, without any intimation from them, either in the deed or elsewhere. He is the trustee of the Bank, as the other creditors. Her interests should, by him, be as much consulted as the interests of other creditors. He is the mere creature of the deed; he must look...