Elizabethton Shoe Co. v. Hughes

Citations

• 29 S.E. 339
• 122 N.C. 296
• 1898 N.C. LEXIS 249

Syllabus

<p>Action against Sheriff — Personal Property Exemptions ■ — Assignment—Trial—Issues.</p> <p>1. Where a firm made an assignment for Benefit of creditors, reserving their personal property exemptions, and after a suit was begun to set aside the deed as fraudulent and the stock had been seized by the Sheriff and the partners arrested, a new assignment, without reservation of exemptions, was made to the same trustee, which provided that the attacking creditors should accept 33J per cent of their claims in full satisfaction and discharge the warrants of arrest against the partners and that the assignee should sell the goods as the agent of the Sheriff to whom he should account, and that the money should be applied by the Sheriff in a maimer entirely different from the mode prescribed in the original assignment; Held, that the partners were not entitled to personal property exemptions because of the reservation in the first assignment notwithstanding the second assignment stated, that the trustee should proceed to sell the property as provided in the first assignment.</p> <p>2. Where, upon the seizure by a Sheriff of a stock of goods attached in the hands of a trustee in a suit by creditors to set aside a deed of assignment as fraudulent, a new assignment, without reservation of exemptions, was made to the same trustee- providing that the latter should sell the goods as agent of Ii, who was Sheriff and account to him for the money which should be applied by H in a manner specified, and no judgment was taken against the assignors; Held, that II did not act as sheriff and hence had no right to assign to the partners personal property exemptions reserved in the original assignment.</p> <p>2. In the trial of an action only such issues should be submitted as arise out of the pleadings and as will plainly and intelligibly present to the jury the contentions of the parties. '</p>