Music Trade Review

Music Trade Review -- © mbsi.org, arcade-museum.com -- digitized with support from namm.org
THE MUSIC TRADE REVIEW.
RECENT LEGAL
DECISIONS.
"Tie Hi$Ke5l Type."
[PREPARED H>R T H E Ml'SIC IK.IDE R E V F I W . l
ASSIGNMENT FOR BENEFIT OF CREDITORS—
CUSTODY OF PROPERTY—RIGHTS OF AT-
TACHING CREDITORS—CERTIORARI.
1. An assignment for the benefit of creditors
under the provisions of our statutes does not
place .the property of the assignor in custody of
law.
2. Such property having been attached in the
hands of the assignee, the district judge of the
district in which such assignment was executed
made an order directing the sheriff forthwith to
surrender possession thereof to the assignee on
the theory that the property was in custody of
the court. Such order was not made in any ac-
tion of special proceeding pending In court. It
was granted upon the mere affidavit of the as-
signee, without hearing the sheriff or the plain-
tiff in the attachment suit, and without notice
to them, or either of them. Held, that the order
was absolutely void, and should be set aside on
certiorari. Held, further, that the plaintiff in
the attachment suit was the person beneficially
interested within the meaning of section 5508,
Comp. Laws, and could therefore sue out the
writ.
3. Held, further, that the right of the plaintiff
to hold the sheriff responsible for the property
attached, for the reason that he could not justify
surrender of the property under a void order,
was neither an adequate nor a speedy remedy,
within the meaning of section 5507, Comp.
Laws, which forbida the issue of the writ of
certiorari when the relator has such a remedy.
4. Held, further, that such a remedy against
the sheriff is not a remedy at all, within the
meaning of this section, for the reason that the
remedy therein referred to is one which, like an
appeal or a writ of error, will enable the relator
to annul the proceeding complained of as void.
5. On certiorari this court has power to order
restitution of everything taken from the relator
under the void proceeding which is annulled.
6. The judgment on certiorari is entered in
this court. No mandate is sent to the inferior
tribunal to render judgment. For this reason,
and because the district court is utterly without
jurisdiction in the matter, and, therefore, has
no jurisdiction to order restitution, the judg-
ment in this case annulling the order will con-
tain a direction that a writ of restitution issue
out of this court to restore to the sheriff the
property taken from him under the order.
7. As the order directed the sheriff to sur-
render possession of the property, the applica-
tion for the writ is not premature because the
assignee was directed by the order to hold the
property until the validity of the assignment
should be determined, or until the further order
of the court. So far as the right of the relator
to have the sheriff hold and sell the property to
satisfy the plaintiff's claim is concerned, the
proceeding has terminated.
8. It was contended that relief should not be
granted relator, because, by the surrender by
the sheriff under the order of possession, the
lien of the attachment was lost; that no new
levy could be made, because the warrant had
been returned by the sheriff, and also because it
RUSSELL
(Successors to STARK & STRACK.)
PIANOS
MANUFACTURED BY
Nos. 171 and 173 South Canal Street,
CHICAGO.
THE
Sterling Company,
15
had been set aside by the district court; and
that, therefore, relator could derive no benefit
from an annulment of the void order and from
restitution of possession. There is nothing to
show that the warrant has been returned ; nor
does it appear that the plaintiff in the attach-
ment suit, who has appealed from the order va-
cating the attachment, has not secured a con-
tinuance of the life of the warrant of attachment
by giving the bond prescribed by section 5228,
Comp. Laws. (Might not a new warrant of at-
tachment issue on the same papers if the old
one had been returned, and the property seized
and held under the new warrant ?) Held, that
the court would not deny relief on these grounds,
as these questions are not directly before the
court. After the sheriff has taken possession,
they can all be raised and tried in actions to
which the proper persons are parties, and should
be settled in that way, and not in this proceed-
ing. The judgment in this case does not settle
them, or conclude any one with respect to them.
It is only when it Is clear, beyond all doubt,
that relator can derive no benefit from certiorari,
that the writ will be denied.
In re Enderlin State Bank, Supreme Court of
North Dakota. March 31st, 1884.
John Bright, who was a lover of poetry, said
that he always selected American poets as more
clear, intelligible, and unconventional; Whit-
tier, Longfellow and Lowell he classed as always
clear as a running brook, as bright as sunshine
and refreshing as breezes, while the English
poets aim at subtleties.
A young gentleman who rather fancied his
tenor singing, attended church in the North of
England, and in the responses gave rather too free
vent to his feelings. But in the midst of one
ejaculation he was suddenly brought to a stand*
still by the verger, who, tapping him on the
shoulder, said in a whisper loud enough to be
heard all over the church :
"Here, young fella, ho'd thi noise ; we pay
men to dew that here ! ''
" Bobby is attending to his pianoforte lessons
very faithfully of late," said the youth's uncle.
"Yes," replied his mother. " I don't have
any trouble with him about that now."
" How did you manage it? "
'' Some of the neighbors complained of the
noise his exercises made, and I told him about
it. Now he thinks it's fun to practice."
The "Crown" Piano.
MANUFACTURERS OF
Pianos and Organs,
FACTORY :
DERBY, CONN.
It. is admitted by all thai no piano ever put upon the
market has met with such success as THE STERLING
and thousands will testify to their superiority of work-
manship and durability. Why ? Because they are made
just as perfect as a piano can be made.
THE STERLING ORGAN has always taken the lead, and
the improvements made this year puts it far ahead ot
all others- t 3 T Send for Catalogue.
Hallet £ Davis Pianos
A beautiful instrument, polished and rare,
Is Bent's " Crown " piano, perfected with care ;
'Tis durable, strong, quickly yields to the touch,
Such music as Terpsichore yearned for so much ;
Ecstatic, transporting, it lifts one on high,
Extorts from the listener a smile or a sigh.
Its tones are unrivaled, its make-up complete,
Its construction is upright and tasteful and neat.
The work is so splendid, we can but admire,
There is more than assured us, and all we desire ;
For Bent on improvement, perfection was gained,
A gem was produced and the "Crown " was
attained
Which Chicago, the queen of all cities, may
wear
When all nations assemble, her glories to share.
GRAND, SQUARE AND UPRIGHT.
Indorsed by Liszt, Gottschalk, Wehli, Bendel, Straus, Soro, Abt,
Paulus, Titiens, Heilbron and Germany's Greatest Masters.
Established over Half a Century.
BOSTON, MASS.