Page:North Dakota Reports (vol. 1).pdf/540



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Under the statute regulating assignments for the benefit of creditors, defendant in due form made a voluntary assignment of all of his property for the benefit of his creditors, "except such property only as is exempt by law from attachment and execution, as provided by §§ 323, 324 and 325 of the Code of Civil Procedure." In proper time defendant filed a duly verified inventory, showing a schedule of his property claimed by him as absolutely exempt under # 323, id.; also a schedule of his personal property. valued at $1,499. claimed as additional exemptions under § 324, id.; and a final schedule of all of his property not claimed as exempt property. Held, that such assignment was not prima facie fraudulent in law, under § 2023 of the Civil Code; nor void on its face, as against non-assenting creditors, under subdivision 3, § 2030, id. ''Red River Valley Bk. v. Freeman, 196''.

Held, further, that a debtor making such assignment, who claims additional exemption of personal property to an amount not exceeding $1,500 in value, is entitled to such exemptions; and, when the debtor's duly verified inventory embraces a schedule of such additional exemptions, that such inventory and schedule, in the absence of fraud, is sufficient, prima facie, as a claim by the debtor of such additional exemptions. Id.

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Held, further, that, under the statute regulating such assignments all property not exempt from execution passes to the assignee, and that it becomes his duty, as assignee, to follow and take into his possession all of the debtor’s non-exempt property, not voluntarily turned over to him by the assignor. Such voluntary assignment creates a trust, and district courts, sitting as courts of equity, have, under the statute, and by virtue of their inherent powers, jurisdiction over the subject matter of the trust; and such courts will, on proper application, put forth their equity powers to aid the administration of the trust. Id.

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Held, further, that, in the absence of actual fraud, attachment will not lie against an assignor, for the sole reason that in making an assignment for the benefit of creditors he reserves all his property "exempt from execution." Id.

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Attachment proceedings are incidental to the main case, and form no part of the pleadings proper; and it is error to render judgment on the pleadings while a material issue raised by the complaint and answer remains untried. Jordan v. Frank, 206.

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Unless the summons in an action is served in the manner prescribed