Best v. Johnson

Belcher, C. C. This is an action against the principal and sureties on a bond, made to insure the faithful performance by the principal of the duties devolving upon him as assignee of the estate of an insolvent debtor. The complaint alleges the appointment of the defendant Johnson, as assignee of the estate, the execution, approval, and filing of the bond, the plaintiffs’ ownership of certain described personal property, and that Johnson, while acting as such assignee, wrongfully and unlawfully, and against the will of plaintiffs, took the property from them and converted it to the use and benefit of the estate, and afterward, on- demand many times made, refused to deliver to them the possession thereof. The prayer is for a judgment for the value of the property, with damages and costs.

A general demurrer was interposed to the complaint, [218]and sustained as to the sureties Dorn and Hoffman, with leave to plaintiffs to amend. Plaintiffs declined to amend, and thereupon judgment was entered that they take nothing as against the sureties.

The statute requires the assignee of an insolvent’s estate to give a bond, with sureties, conditioned for the faithful performance of the duties devolving upon him, and it provides that “the bond shall not be void upon the first recovery, but may be sued upon from time to time by any creditor aggrieved, in his own name, until the whole penalty is exhausted.” (Insolvent Act of 1880, sec. 15.) The duties of an assignee, as declared by the act, are to take into his possession all the estate of the insolvent debtor, except property exempt by law from execution, if need be, to sue in his own name, and recover all the estate, debts, and things in action, belonging or due to such debtor, to sell the property and convert the same into money as speedily as possible on the order of the court, and to keep correct accounts of all moneys received by him, and to pay them out on the order of the court. (Sections 18, 21, 25, 29, and 34.)

It is argued for appellants that Johnson, as assignee, had a right to take into his possession only such property as belonged to the insolvent; that he had no right to take the plaintiffs’ property, and that when he did so and converted it to the use of the estate, he violated the conditions of his bond, and he and his sureties became liable thereon. And in support of this theory, counsel cite numerous cases, and among others, People v. Schuyler, 4 N. Y. 173; Van Pelt v. Littler, 14 Cal. 194; Lammon v. Feusier, 111 U. S. 17.