43 Mass. 152 | Mass. | 1840
The question is, whether the trustees are liable to be charged on their answers. It appears by the answers, that George Foster, the principal debtor, made an assignment to the trustees for the benefit of his creditors, purporting to be made conformably to St. 1836, c. 238, respecting the assignment' of the estate of insolvent debtors. Before the assignment was executed by the creditors, but after it was executed by the debtor and trustees, the plaintiff made his attachment. If, therefore, the assignment was not valid according to the statute, the title of the attaching creditor would have preference to that of the assignees.
The attaching creditor seeks to avoid the assignment on two grounds ; first by the giving of a preference to a particular creditor, and that known to one of the assignees, or respecting which he was put upon inquiry, and might have ascertained the fact: Second, because the certificate of the oath of the debtor was not indorsed on the assignment.
In regard to the first, we think the point is settled by the late case of Fairbanks v. Haynes, in this county. (23 Pick.) However such a preference may affect the right of the debtor to have his discharge, it does not avoid the assignment, unless it is given by the assignment itself, or by some instrument or act, so connected with the assignment, as to be deemed in law part of the same transaction.
The other objection to the validity of the assignment, on the ground that it does not conform to the statute, requires more consideration. The statute provides, § 1, that debtors may as
When a statute directs that an instrument shall be framed in a certain way and shall have a certain legal effect, it is often difficult to determine, whether a particular provision constitutes a condition or only a direction ; and in this case we have not found it necessary to decide that question. . It appears by the trustees’ answers, that at the time the assignment was made, the debtor took the oath required by the statute, before a magistrate of competent authority, who then and there wrote and signed a certificate, on a paper folded with the assignment, but not annexed to it by a thread or wafer, or otherwise. It was long since heldf even under a penal statute and in a capital case, that a writing, intended to operate as an indorsement, was an indorsement within the statute, whether written on the back or the face of the pa per. Rex v. Bigg, 1 Stra. 18. S. C. 3 P. W. 419.
It appears by the trustees’ answers, and by inspection of the original papers, that the scrivener, who wrote the assignment, took two sheets of paper, of a particular size and quality, and folded them together, one within the other, in order, apparently, to have sufficient room for the assignment, the signatures, the certificate and schedules. The assignment, and signatures of the principal parties, not 'occupying the whole of the two first pages, did not extend to the second sheet; but the certificate was written on one of the pages of the second sheet. The two sheets, thus folded, were delivered together to the assignees, as the assignment ; have always been kept together as such ; and in a few days after the execution, when the schedule was completed and
This case is quite distinguishable from that of Montague v Smith, 13 Mass. 396. In that case, the awards were written on detached papers, not intended and not purporting to be indorsed on the leases, and therefore ,not conformable to the covenant.
Trustees discharged.