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Salter et al. vs. Smith,
but re-enacts the law of the Almighty as announced by the Saviour and beautified by His example. The question, therefore, is, was this act of Salter's a benevolent and charitable act? To visit those who are sick and in prison; to speak a word of kindness and sympathy to them; to relieve their distress as far as we may, in accordance with law, is evidence of the high
est type of religion and of the sweetest spirit of charity. Such • deeds have immortalized the name of Howard and made it almost a synonym for this greatest of christian virtues. If such deeds as these be charitable, surely to open the prison door to one imprisoned by standing bis security and risking money on bis good faith, is, a fortiori, an act of charity. Therefore, even if Salter were in the habit of thus acting the part of the good Samaritan in spirit, if this were his business, his ordinary calling, the act would be within the exception of the statute, and the obligation would be binding because it was an act of charity. The person bailed was a person of colorpoor, therefore, we suppose, and destitute of influential frienils, and the act of going his security is the more charitable on this account. It is possible that Mr. Salter wanted the labor of this man, and that a worldly motive was mixed with that spirit of benevolence to which we have attributed his act; but the record discloses no such motive, and it would be not only illegal but shameful in us to go out of the record to rob Mr. Salter of the credit of this deed, as one of pure benevolence, and therefore lawful on Sunday. His character for beneficence ought, in the absence of proof to the contrary, to be sustained, even though it be at the expense of his purse. This court has made no decision bearing directly on this point, but some of our sister states have had the question before them in the construction of similar statutes to ours, and have decided in accordance with the conclusion to which the foregoing reasoning leads: See 3 Bush, 14; 33 Maiue, 539; 31 Illinois, 469. We hold, then, that this bond is good, for two reasons: first, because it was not an act in the ordinary business of Salter, and it can scarcely be said to be one in the or
Salter et al. vs. Smith.
dinary line of the sheriff's duties; and secondly, because it was an act of charity.
2. But was the rule against the sheriff properly maile absolute? That turns on this question, was the sheriff in contempt of the court? If he had the process of the court in his hands to execute, and failed to do so, he was in contempt, unless some facts appear to show that he did not fail by neglect of his duty, and thereby in contempt, but was misled and deceived by the circumstances surrounding him. It is matter of some doubt whether this execution did not issue upon the scire facias at the first term, and before the final forfeiture of this recognizance. The record is silent, and contains no scire facias, nor does the bill of exceptions show that any was issued, or when the execution issued. If the statute was not followed, the process would hardly justify a harsh rule for contempt against the sheriff. However that may be, it is quite certain from the record that the sheriff witnessed all the circumstances attending this remarkable forfeiture of this bond. That no securities names were called ; that the question was asked, was this the case in which Salter was security, that the judge responded that it was not; that he, himself, thought it was not; that Salter had a defense filed to the scire facias, if there was one, at any rate, to the proceeding to forfeit the bond; that a motion had been made to set aside the forfeiture and open the judgment. The sheriff was cognizant of all these circumstances, and while we do not think he has a right to judge whether process placed in his hands be properly grounded on lawful proceedings, yet we think the irregularities here apparent and admitted, and of which he was cognizant, are sufficient to show that he acted bona fide, and not in contempt of the man late of the court. The entire record is so confused, this judgment of foreclosure appears so irregular, and the facts so well calculated to make an officer, however vigilant and faithful, doubtful of his duty, that we feel constrained to reverse the judgment of the court below, and order a new hearing of the case.
Francis vs. Martin Herz & Company.
JAMES C. FRANCIS, Jr., assignee, plaintiff in error, vs. MAR
TIN HERZ & COMPANY, defendants in error.
An assignment by an insolvent debtor for the benefit of such creditors as
shall accept the same and release the debtor from all further liability, is void as to a creditor who fails to accept.
Assignment. Debtor and creditor. Before Judge GOULD. City Court of Augusta. February Term, 1875.
Reported in the decision.
BARNES & CUMMING, by W. W. MONTGOMERY, for plaintiff in error.
HARPER & BROTHER, for defendants.
WARNER, Chief Justice.
This was a claim case. The plaintiffs in execution levied their fi. fa. on a stock of goods as the property of the defendants therein, which were claimed by Francis, assignee, under a deed of assignment dated 30th of April, 1874. The judgment on which the plaintiff's execution issued was dated 29th of May, 1874. The question as to the validity of the assignment was submitted to the judgment of the court on the statement of facts contained in the record. The court decided that the deed of assignment was void as to all of the creditors who had not accepted it. To this decision of the court the claimant excepted.
The deed of assignment under which the claimant claimed the property is in the following words, to-wit: “STATE OF GEORGIA-RICHMOND COUNTY.
“This indenture, made and entered into this the 30th day of April, A. D., 1874, between William McCabe and John S. Costello, doing business in the city of Augusta, state of Georgia, under the firm name of McCabe & Costello, of the first part, and James C. Francis, Jr., of the city of Augusta, state of Georgia, of the second part, witnesseth that whereas,
VOL. LV. 17.
Francis vs. Martin Herz & Company.
said parties of the first part owe divers debts which they are unable to pay in full, and are desirous to provide for the payment of the same, by assignment of all firm property for that purpose.
“Now, therefore, know all men by these presents, that the said parties of the first part, in consideration of the premises and of the sum of $1 00 in hand well and truly paid by said party of the second part, at and before the signing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part, his heirs, executors, administrators and assigns, all the goods, chattels, stocks, promissory notes, debts, choses in action, evidences of debts, claims, demands, property and effects of every description, now owned by said parties of the first part, as firm property, and especially all that stock of dry goods now in store number two hundred and twenty-eight, Broad street, Augusta, Georgia, together with the notes, accounts and books appertaining to the business of said parties of the first part, as merchants. To have and hold the same and every part thereof, in trust, for the uses and purposes following:
“1st. To take possession of the said property, and to sell and dispose of the same with reasonable diligence, either at public or private sale, for cash or credit, and to convert the same into money; and also, to collect all such debts and demands hereby assigned as may be collectable, and with the rest of the proceeds of such sales and collections ;
“2d. To pay and discharge all just and reasonable expenses, costs and charges of executing this assignment, of carrying into effect the trust hereby created, including lawful commissions of said party of the second part for his services in executing the said trusts.
“30. To pay and discharge in full, if the residue of said proceeds is sufficient-for that purpose, all the debts or liabilities now due or to become due from said parties of the first
Francis vs. Martin Herz & Company.
part, to the creditors enumerated in the annexed schedule, marked Exhibit 'A,' who shall, within one month from the date of this assignment, signify their acceptance of the same, and release said parties of the first part from further liability on account of said debts. And to such other creditors, if any, who shall, within one month from such date, present their claims duly proven to said party of the first part, and shall also sign a release as aforesaid, and if the residue of said proceeds shall not be sufficient to pay the said debts and liabilities in full, then to apply the same so far as they will extend, to the payment of said debts and liabilities proportionately to their respective amounts.
And if, after payment of all costs, charges and expenses attending the execution of said trusts, and the payment in full of all lawful debts owing by said parties of the first part, as copartners, there shall remain any surplus of said proceeds in the hands of said party of the second part, then
“4th. To apply such surplus toward the payment of the individual debts and liabilities of said parties of the first part, the share belonging to each of the respective parties to be applied to the payment of the debts of such party, and not to the debts of the other, without preference to the individual creditors.
“And for the better securing the execution of the trusts hereby created and reposed, the said parties of the first part do hereby constitute and appoint said party of the second part their true and lawful attorney, irrevocable, with full power and authority to do and perform all acts, deeds, matters and things which may be necessary in the premises, and, to the full execution of said trusts, and to demand, recover and receive of and from all and every person all the property, debts and demands belonging or owing to said parties of the first part, as copartners; and to give acquittances and discharges for the same, and to sue, prosecute and defend, and implead for the same, and for the purposes aforesaid, or for any of them; to construct and appoint one or more attorneys under him, and at his pleasure to revoke the same, hereby