Inventory.

avails, pay and discharge the several and respective debts, bills, notes, or sums of money due, or to grow due, from the parties of the first part to the persons designated in the schedule hereto annexed, together with such interest as may acrue thereon; and if such net proceeds and avails shall not be sufficient to pay the same in full, then such net proceeds and avails shall be distributed pro rata among said persons, according to the amount of their respective claims.

3. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the other copartnership debts, demands, and liabilities whatsoever, now existing, whether due or hereafter to become due, provided such remainder shall be sufficient for that purpose; and if not sufficient, then the same shall be applied pro rata to the payment of said debts, demands, and liabilities, according to their respective amounts.

4. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the private and individual debts of the parties of the first part, or either of them, whether due or to grow due, provided such remainder shall be sufficient for the purpose; and if insufficient, then the same shall be applied pro rata, share and share alike, to the payment of said debts, according to their respective amounts.(r)

And for the better execution of these presents, and of the several trusts hereby reposed, the said parties of the first part do hereby make, nominate, and appoint the said party of the second part the true and lawful. attorney irrevocable of them and of each of them, with full power and authority to do, transact, and perform all acts, deeds, matters, and things which can or may be necessary in the premises, as fully and completely as the said parties of the first part, or either of them, might or could do, were these presents not executed; and attorneys, one or more, under him, to make, nominate, and appoint, with full power of substitution and revocation, hereby ratifying and confirming all and every thing that our said attorneys, or his attorneys, shall do or cause to be done in the premises.

And the party of the second part hereby accepts the trust created by these presents, and covenants that he will faithfully perform the same.

IN WITNESS WHEREOF, etc.

[Annex a schedule describing the debts intended to be preferred in the second class.]

312. Inventory [Required by the New York statute of 1860(d)]. The following is a full and true inventory of all the creditors of A. B.,

(r) That such a provision as this does not render an assignment invalid, as operating, on its face, to expose the share of one partner to be applied to pay debts of the other, before his own have been paid in full, see Turner v. Jaycox, 40

Barb., 164. But the clause on this subject in the preceding form is to be preferred.

(8) By Laws of N. Y. of 1860, 594, ch. 848, it is provided that assignments in trust for creditors must be in writing, and

Petition for Accounting.

who has made an assignment to Y. Z., which bears date the

street, in said place, for the year ending on the

is due the sum of $

[In like manner specify the names and residences of all creditors, the sums due them, and the consideration of the indebtedness.]

The following is a full and true inventory of the estate and assets of A. B., on the said day of 18 [the date of the assignment].

[In like manner specify other items of property constituting the assigned estate.]

318. Petition for an Accounting by Assignee (under same statute). To the Hon. H. L. S.,

did, by an instrument in writing, dated the day of

assign and set over all his property to Y. Z., of the same place, as his assignee for the benefit of his creditors; and that the said Y. Z. has given and filed

Bond of Assignee.

Approval.

the proper security, and entered upon the duties of his trust as such assignee, and that more than one year has elapsed since the date of said assignment. That your petitioner is a creditor of the said A. B., and interested in the distribution of the proceeds arising from said assignment; and he asks that your honor will issue a citation or summons, compelling the said Y. Z., assignee as aforesaid, to appear before you, at a time and place to be named in said summons or citation, and show cause why an account of the trust fund shall not be made, and a decree rendered directing the said Y. Z. to pay your petitioner his proportional part of such fund; and that such other proceedings may be taken herein as to your honor may seem just and equitable. [Signature.]

M. N., being duly sworn, says he has [heard] read the foregoing petition by him subscribed, and that the same is true to the best of his knowledge and belief.

[Jurat.]

[Signature.]

314. Bond of Assignee (under same statute).

KNOW ALL MEN by these presents, that we, Y. Z., of and M. N. and O. P., of the same place, are held and firmly bound unto the People of the State of New York in the sum of dollars, lawful money of the

United States of America, to be paid to the said the People of the State of New York or their assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seal.

Dated the

day of

18.

Whereas one A. B. has made an assignment of all his goods, chattels, and credits to the above-named Y. Z., for the payment of the debts of the said A. B., as expressed in said instrument of assignment, bearing date the day of and recorded in the clerk's office of the county of

18
day of

has accepted, on being ordered by the county judge of County to give bond with security in the sum of : Now the condition of this obliga

tion is such, that if the said Y. Z. shall faithfully discharge the duties as such assignee, and duly account for all moneys received by him as such assignee, and obey all orders or decrees which may be made by the county judge of County in regard to said assignment, then this obligation to be void; otherwise, to remain in full force and virtue. Y. Z. [Seal.]

M. N. [Seal.]

O. P. [Seal.]

315. Approval of County Judge, to be Indorsed on the Preceding Bond.

I hereby approve of the form and sufficiency of the within instrument. 18

H. L. S.
County Judge.

General Principles.

316. Summons to an Assignee (under same statute).

In the name of the People of the State of New York, you are commanded to appear before me, the county judge of

on the

day of

County, at my office in

at o'clock in the forenoon, to show cause why an account should not be rendered by you of the trust fund in your hands, created by the assignment of A. B. to you, dated 18 and why a decree should not be entered requiring that the funds be paid over to the several persons entitled to receive the same. Hereof fail not at your peril.

[Date.]

H. L. S., County Judge.

CHAPTER XI.

AUCTIONS.

SALES by auction are usually regulated by statute, requiring auctioneers to obtain licenses or give bonds, or both, and to render accounts, etc., to the State. For the particulars of these regulations, the reader must consult the statutes of his State. The forms of bond and oath to account here given are agreeable to the laws of New York.

817. Bond of auctioneer.....

319. Certificate to be indorsed on copy for county clerk..

PAGE

145

323. Oath of partner or clerk to account containing any sales made by him.. 824. Terms of sale of real property....

147

148

148

825. Memorandum of sale

817. Bond of Auctioneer.(a)

KNOW ALL MEN by these presents, that we, A. B. [the auctioneer], of and C. D. and E. F. [naming his sureties], of

are held and firmly bound unto the People of the State of New York in the penal sum of (b) dollars, to be paid to the People of the State of New York, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by

(a) Where the bond is given in the city of New York, a copy is to be made of both the bond and the acknowledgment, and certified by the magistrate, by indorsing Form 319 upon it. But see L. 1866, ch. 547.

(b) For the penalty and condition, see Laws of N. Y., 1838, ch. 52; Laws of 1846, ch. 62; Laws of 1866, vol. 2, p. 1187, ch. 547.

Auctioneer's Bond.

Approval.

day of

in

these presents. Sealed with our seals, and dated the the year of our Lord one thousand eight hundred and WHEREAS, the above bounden A. B. [naming the auctioneer] is a citizen of the State of New York, resident in the county of ; and whereas the said A. B. designs and intends to become an auctioneer, and to transact the business and perform the duties of an auctioneer in the said county of

:

NOW THE CONDITION of this obligation is such, (b) that if the said A. B. shall faithfully perform the duties of his office; and shall well and faithfully pay the fees or duties that are or shall be imposed by law, and that shall accrue on sales made by him the said A. B., or under his direction, as such auctioneer as aforesaid, or by virtue of his office, and if the said A. B. shall render a true and accurate account semi-annually on the first Mondays of July and January in each year of all goods sold, and also of all goods struck off but not actually sold, as is directed and required by the existing provisions of law, then this obligation shall be void; but in case the said A. B. shall fail to perform said duties, or to pay said duties or fees, or any part thereof, or to render such account as is above required, then this obligation shall be and remain in full force and effect, and the obligots shall be deemed to have forfeited the said bond. [Signatures and seals.]

318. Acknowledgment and Approval.

STATE OF NEW YORK,

City [or, County] of day of

On the 18 before me M. N., the mayor [or, recorder], of the said city [or, if not for a city, say, county judge of said county], personally appeared the above-named A. B., C. D., and E. F., known to me to be the same persons described in, and who executed the above bond, and acknowledged that they executed the same, for the purposes therein mentioned. And I hereby certify that I approve of the within bond, and that it was taken by me on the day last aforesaid. [Signature and title.]

319. Certificate to be Indorsed on Copy for County Clerk.(c) COUNTY OF

88.

I HEREBY CERTIFY, that the within is a true copy of a bond taken and approved by me, and of the certificate of acknowledgment and approval thereon indorsed by me, and of the whole of said bond and certificate, and that said certificate was executed the day it bears date. [Date.]

[Signature and title.]

320. Notice by Magistrate to Comptroller.

day of

18 I approved a bond

and that

I HEREBY CERTIFY, that on the for A. B., as auctioneer of the city [or, of the county] of the sureties entering into the said bond were C. D. and E. F., both merchants [or otherwise], residing or doing business in the city of [Date.]

[Signature and title.]

(c) See note (a).