In re Strauss

Headnote

Examination of Assignor for Benefit of Creditors.

An assignor who refuses to deliver the title deeds or give necessary t information of the assigned estate to the assignee, may be ordered, on application of the latter, to appear and submit to examination.

Application to one of the judges of this court as county judge, for order compelling the assignor to submit to examination at the instance of the assignee, and to disclose any knowledge or information relative to creditors, assets, and liabilities, of the assignor (Act of 1874, chap. 600, § 1, amending Laws of 1860, chap. 348, § 2).

Arnold Strauss made a general assignment for the benefit'of creditors, in July, 1876, to Charles W. Rod-man, a creditor, who duly filed his bond, and entered upon the performance of his duties. The assignor failed to file any inventory or schedule. On December 5, 1876, the assignor was summoned to appear before Judge Yak Hoeseít, to be examined as to such particulars of his property, &c., so that an inventory ■or schedule could be filed.

The allegations of the affidavit of the assignee were in substance as follows : That the assignor, at a meet

ing of creditors, stated among other things, that he owned many thousand acres of land in the south, enough to pay all his debts in time; that assignor’s attorney had exhibited the title deeds of the property to him; that he would make out and deliver conveyances of the property to him, but had not done so ; that he had no knowledge or information, nor means of obtaining any, as to this property, except through the assignor; that he had been able to collect only about $700 of the assets transferred to him; that he had no means of discovering either his assets, creditors, or liabilities, except from his simple statement at his creditors’ meeting ; that the books of the assignor were a mass of confusion, from which he had been able to get no reliable information; that other creditors had examined the books, and could make nothing out of them ; that many purchases which he admitted having made, as pianos sold by one of his creditors, were not entered at all in his books, as reported by a committee appointed to examine them ; that, after his appointment, he discovered nine pianos stored in assignor’s name, as he was informed by the landlord of the premises where they were, which assignor had not disclosed to him, and that a replevin suit was pending in reference thereto; that he desired to know who were assignor’s creditors, and the amount of their claims; and that he desired to examine said assignor under oath generally as to Ms assets, that he might discharge Ms duty of getting them in for the benefit of the creditors, who with Mm believed that the assignor was concealing his assets with fraudulent intent.

The assignor made affidavit that he had transferred all Ms property, books of account, inventory of stock, &c., to the assignee.

I. If this proceeding

is statutory, then the law or statute authorizing the act should should be set out fully. If on general principles, then immediate necessity should be shown.

II. There is no statutory provision which authorizes the examination of an insolvent debtor in the manner proposed (L. 1860, p. 594, c. 348, § 4; 2 L. 1867 , p. 2163, c. 860; 1 L. 1870 , p. 297, c. 92; 2 L. 1872 , p. 1993', c. 838; L. 1875, p. 51, c. 56). These laws merely provide for the accounting to the creditors by the assignee after the lapse of one year. The amendment of 1874 (L. 1874, p. 824, c. 600), does not apply to this case, because all the property is in the assignee’s possession.

III. The assignee has no inherent right to compel. this examination.