Coleman v. Roff

45 N.J.L. 7 | N.J. | 1883

The opinion of the court was delivered by

Beasley, Chief Justice.

This case comes from the Essex Circuit for the advisory opinion of this court touching the proper construction of the twenty-sixth section of the “Act respecting executions,” (Rev., p. 394,) so far as the same relates to the title to the choses in action of the debtor which is vested thereby in the receiver. But it is to be observed that this court is not asked to expound this legislative provision in all its applications, but in the single aspect arising from the circumstanoes of a defendant in execution, after an order had been served on him to make discovery by virtue of the act in question, having passed over in payment of a just debt to a creditor, cognizant of such proceeding, certain of his things in action. The defendant in this suit acquired his title to the property in dispute from the defendant in execution, with knowledge of the order for discovery, but antecedently to the appointment of a receiver. The inquiry is whether such title prevails over the right of the receiver subsequently constituted.

In the case of Journeay v. Brown, 2 Dutcher 111, it was intimated that the provision now to be construed “ seems plainly to contemplate that the proceedings under it shall prevent the debtor from making any disposition of his property while they are pending,” and this, it appears to me, is the correct view of the subject. Indeed, it is the only view which can be adopted consistently with the fundamental rule of statutory interpretation, which forbids the excision from a statute of plain terms that are wholly compatible with the spirit and context of the act. The language of this clause is, that the judge, after the evidence has been placed before him, may “make an order appointing a receiver of the property and things in action belonging, or due to, or held in trust for such debtor as aforesaid, at the time of the issuing said execution, or at any time afterwards, who thereby shall receive authority to possess, receive, and, if need be, in his own name as such receiver, sue for such property or things in action.”

This act, therefore, in explicit and perspicuous terms, defines the title of the receiver. It is declared that he is to “ possess and receive ” the property and things in action belonging to or held in trust for the debtor at the time of the issuing of the execution, and it is quite out of the question for the court to say that the will of the legislature is not to be effectuated, and that this officer shall take such property only as remains to the debtor at the date of the constitution of the receivership, or at some subsequent period. Such an interpretation of the clause would obviously expunge from it the phrase, “ at the time of the issuing of the execution,” and such a mutilation does not seem justifiable, so far as is apparent from any part of the policy which is inherent in this law. The act is remedial, its manifest purpose being to extend the execution lien to the choses in action of the judgment debtor in the event of the requisite measures being taken to create and enforce such lien. The defect to be amended was the inability of the judgment creditor, by a legal proceeding, to reach a certain class of property belonging to his debtor, and when the legislature removed such disability there was assuredly no reason why, in its discretion, it should not establish a procedure whereby a simultaneous lien should obtain under the execution upon every species of property of the defendant in the suit. That there is neither hardship nor injustice in vacating the assignment made to the creditor in the present case, in favor of the receiver, is most conspicuous from the fact that if-this judgment creditor, instead of taking steps by force of this act respecting executions, had filed his bill in equity to reach the intangible property of his debtor, and it had appeared that subsequently to the -bringing of such suit, and with a knowledge of its pendency, this defendant had taken an assignment of this property in question, a decree requiring the payment of such moneys to the receiver would have been a matter of course. Clearly, therefore, a law cannot be said to be radically unreasonable that gives to a creditor the same remedy at law which, by an outlay of more money and labor, he could obtain in a court of conscience.

In a case that hinges entirely on the expressions of a statute, the decisions of the courts of other states relative to statutes regulating the same subject, but expressed in various terms, cannot be of much assistance. The cases cited in the brief of counsel from the New York reports are of this character, and although by no means in point it is deemed they, iñ a general way, are favorable to the statutory construction above expressed.

The plaintiff in this suit, in the opinion of this court, is entitled to recover, and the Circuit Court will be so instructed.