94 Ga. 750 | Ga. | 1894
Section 1955 of the same code was as follows: “A debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage, or other legal means, or he may sell in payment of the debt, or he may transfer negotiable papers as collateral security, the surplus in such cases not being reserved for his own benefit or'that of any other favored creditor to the exclusion of other creditors.” By virtue of this section, a debtor, irrespective of his solvency or insolvency,
So far as non-negotiable ehoses in action are concerned, the only question which could arise under the language of section 1955 is, whether what seems to have been made impossible by the preceding section, viz: an assignment of the same as mere security for one creditor alone, was, under the name of creating a lien, rendered possible by section 1955.
Prior to the code, the assignment of accounts would create an equitable lien; but by the use of the words “other legal means,” there is little room for doubt that the section last mentioned contemplated legal, and not ■equitable, liens. Ilence, properly understood, there was not, for any reason yet suggested, any real incongruity ■ between the two sections in the respect indicated.
The next consideration is, what effect should be given to section 2224 of the code of 1863 (the language of which is exactly the same as that used in section 2244 of the present code), which makes all ehoses in action arising upon contract assignable so as to vest the title in the assignee ? That section certainly does not contemplate the creation of a lien merely, but a change of ownership relatively to the legal title.
The conclusion from the foregoing is, that, while the terms “negotiable papers” should be construed as comprehending anything which the code in any of its pro
Had the case of Hale-Berry Company v. Diamond State Iron Company et al. (94 Ga. 61) depended alone upon the code of 1868, we think the decision therein rendered would have been a correct exposition of the law applicable; but taking into consideration the modification of the provisions of the old code made by the above cited act of 1866, we are now of the opinion that the judgment rendered in that case is, to the extent indicated in the first head-note of this opinion, unsound. The provisions of the act of 1866 are embodied in paragraph 1 of section 1952 of the present code, that paragraph having been, by the act in question, substituted for paragraph 1 of section 1954 of the old code. In endeavoring to arrive at a correct solution of the question presented, we went back to that code to see how the law stood under its provisions, and concluded it was as has been stated above; but in tracing it into the present code, we somehow, - as we now think, failed to grasp to the full extent the changes made by the act of 1866 in the law existing at the time of its passage. A comparison of the two paragraphs just mentioned will show that,, in the latter, “ dioses in action” (which, of course, comprehend open accounts and other claims embraced in the descriptive words “negotiable papers”) are specially designated; whereas, the terms “chosesin action” do not appear in the paragraph cited from the old code. It may be remarked, however, that the words “ real or personal property of any description ” would, perhaps, be suffi
In dealizig with the Hale-Berry case, we were too much influeziced by section 1953 of the present code, which is in the sanze language as sectiozz 1955 of the code of 1863; and as this section provides for the transfer as eollatez’al security of ziegotiable papez’s only, we came to the cozzelusion that nozz-negotiable papers could not be transfez’red for this purpose. But we did not give proper recognition to the alteration izz the law of the whole subject-znatter, arising by necessary implication from the amendnzent made by the act of 1866, appearizzg in sectiozi 1952, in the respects indicated. The two sections must be read and construed together; and although, after the passage of that act, the language of sectiozi 1953 was left precisely the same as formerly, its restrictive effect was uttei’ly chazzged, so far as non-negotiable choses in action are concerned, because of the amezidment which the legislature saw fit to make izi the matter and scope of the preceding sectiozi. The effect of this amendment was to reverse the general policy of the first code, and by implication to allow an insolvent debtor to make preferences amongst creditors at pleasure by legal assignment or transfer, provided no trust for himself, or to any person for him, be reserved. This is the law now, and thus it has stood ever since the act of 1866 was enacted. By virtué of section 2244 of the
So far as the case of Baer v. English & Co., 84 Ga. 403, is concerned, as it was correctly decided on its facts, it presents no essential conflict with anything we now rule. The suggestion in the opinion deliyered in that case, that “An account, not being negotiable paper, cannot, we think, be transferred as collateral security for an existing debt to the prejudice of another existing creditor,” was toned down and qualified by what followed it in the next sentence, and was not meant to be an adjudication of the question now before us. This will be apparent to any one who will read the whole opinion in a spirit of candor. By oversight, section 1953 of the code was quoted entire in that opinion, without any allusion to the repeal of the concluding words by the act of 1866, or to the previous case in 82d Ga., cited supra, by which the repeal of these words was declared and recognized.
It appears from the record of the case now under consideration, that in every instance where Epstein & Wannbacher assigned to creditors open accounts as collateral security for their respective demands, the assignment was made directly to the creditor; and hence, no trust was created, there being no person other than the assignee taking any benefit under it. Therefore, the assignment acts of 1881 and 1885 do not apply, and decisions rendered by this court with reference to those acts are not pertinent, and need not be noticed. It does not appear that, in making these assignments, any bene
Inasmuch as Herman and others instituted the original petition which brought about all the litigation which afterwards arose over the affairs of Epstein & Wannbacher, we think the court could, with great propriety, award them the opening and conclusion. If they were not, as matter of right, entitled to this advantage, it was at least within the discretion of the trial judge to allow it to them, and in so doing his discretion was not abused. This is true although Herman and his associates, the preferred creditors, were made codefendants with Epstein & Wannbacher in the petition filed by the general creditors. We cannot see that this fact at all affects the merits of the question as to who should have the opening and conclusion.
Had we found it necessary to rule upon all the numerous questions presented in the argument before us, we would have endeavored faithfully to do so, and would not shrink from preparing an opinion embracing as full a discussion of them as the time at our command would possibly allow; but to do this is not requisite, because we are convinced that the verdict and judgment rendered are about as nearly correct as any court or jury could render. The jury in this case was selected from the grand jury list. They have done their work well; it has had the sanction of the trial judge, and we are satisfied to allow their verdict, and the decree rendered upon it, to stand. Judgment affirmed.