Page:North Dakota Reports (vol. 1).pdf/223

 that absolutely exempt, was seized by the sheriff of Cass county under a warrant of attachment issued at the instance of the plaintiff. The only ground of the attachment is stated in the affidavit as follows: ‘And that said defendant has assigned and disposed of his property with the intent to defraud his creditors.” On April 1, 1890, the defendant, joining with the assignee, moved in the district court to vacate said attachment. The motion was granted, and said court, on the same day, by its order, directed the sheriff to release the property. An exception was allowed to the order vacating the attachment, and the order is assigned as error in this court. Upon the hearing of the motion to vacate the attachment, counsel filed a stipulation, embracing the agreed facts upon which the motion was heard and determined. The stipulation contained a narrative of the principal features of defendant’s assignment for the benefit of his creditors.

The facts concerning the same are not controverted, and have already been stated in substance. It is admitted that the assignment proceeding furnishes the only foundation for the attachment. Plaintiff's counsel have not claimed that the record contains any evidence whatever of a fraudulent intent, or actual fraud, on defendant’s part in making his assignment. Nor is it claimed that the defendant or the assignee has omitted any act or formality required by the statute regulating such assignments. Plaintiff’s only claim and contention is that the assignment is made void in law and upon its face, because it in terms reserves to the debtor’s use a portion of his property before the debts are paid, viz., personal property of the value of $1,499.77, which the defendant schedules and reserves in his inventory as exempt under the statute awarding additional exemptions to the amount of $1,500. In support of this claim, plaintiff cites subdivision 3, § 4663, Comp. Laws; § 4656, id. In other words, plaintiff's position is that, where an insolvent debtor makes a voluntary assignment for the benefit of his creditors, under the statute providing for such assignments, he is not entitled to the additional exemptions secured by statute to an execution or attachment debtor. Plaintiff’s counsel relies upon the statutes regulating exemptions in favor of the debtor where his property is