51 Mass. 320 | Mass. | 1845
The importance of the principal question presented by the present case is now much diminished by the length of time which has elapsed since the repeal of the bankrupt act, and the strong probability that few, if any, similar questions now remain unsettled. The question is, whether an attachment of property on mesne process, as regulated by the laws of Massachusetts, constitutes such a lien or security on property as to be saved to the attaching creditor, and prevented from passing to the assignee, by the proviso "at the end of § 2 of the bankrupt law It is a condition, reservation, or
It has been argued that, as a principle of equity, when a proceeding is instituted for the satisfaction of the claims of all creditors, an attachment on mesne process, designed to obtain satisfaction in behalf of a particular creditor, must yield; and the authority of Atlas Bank v. Nahant Bank, 23 Pick. 480, is relied upon. That case did not go on the general principle, but on the construction of the Rev. Sts. c. 44; and it was held that where a bill had been filed by the bank commissioners, for the general benefit of creditors, and especially after an injunction issued, but before receivers were appointed, if an attachment was made by a particular creditor for his own benefit, it could not hold against the general creditors. But in Hubbard v. Hamilton Bank, 7 Met. 340, it was held that an attachment made by a creditor of a bank, before the application of the commissioners for an injunction, would hold against receivers subsequently appointed to take charge of the property for the general creditors. But these questions depended, as we think this question must depend, upon the construction of the statute under which it arises, and not much aid can be derived from considerations of mere expediency. As a general questiqn of policy and expediency, we are inclined to the opinion that when it becomes necessary to settle and close up the affairs of a debtor, whether at his decease or during his life, true equity would require that all his property, which has not become appropriated and vested by his own act or the operation of law, should be applied to the payment of all his debts, and that an attachment on mesne process, being a sequestration of his
After the very full and elaborate discussion of this subject, by the late Mr. Justice Story, of the supreme court of the United States, in the cases of Ex parte Foster, 2 Story R. 131, and Matter of Bellows Peck, 3 Story R. 428, on the one side, and by Mr. Chief Justice Parker, of the supreme court of New Hampshire, in the cases of Kittredge v. Warren, and Kittredge v. Emerson, 7 Law Reporter, 77, 312, on the other side, it would be but an affectation ot learning, to enter at large into the argument, which is so entirely exhausted in the cases cited.
Perhaps something may be considered as added to the authority in support of the opinion we adopt, by the case, since decided by the supreme court of the United States, of
Indeed, it seems to be admitted, by those who maintain that an attachment on mesne process is not a lien absolutely protected, that it is yet a qualified lien, a security on property, not dissolved by the decree declaring the party bankrupt, nor yet by the assignment of the property to an assignee, but it is a qualified lien, which may be perfected and enforced by a judgment and execution, in case the bankrupt, after due time allowed for that purpose, does not obtain his discharge, or if, being obtained, he should not choose to plead it, or otherwise rely upon it as a bar to a judgment. If this be a correct view, then an attachment on mesne process is a qualified lien
In general, it is a rule in the exposition of statutes, that every section, provision and clause shall be expounded by a reference to every other, and, if possible, every clause and provision shall avail and have the effect contemplated by the legislature, ut res magis valeat quam pereat. Thus, if there be a clause in a statute expressed in general and unqualified terms, and without exception, it must be construed to mean what it imports, and to embrace the objects which come within its terms. But if there is another provision in the same statute, which necessarily qualifies or limits the former, and requires an exception to it, then both are to be construed together, as if the qualification, condition or exception had been immediately annexed to the general provision. To apply that rule to the present case: As the bankrupt law provides, in general terms, that the bankrupt shall, upon certain conditions, obtain his discharge from al his debts in general terms, such discharge, prima fade, shall bar all actions against the debtor, and of course prevent the recovery of any judgments against him. But, if another part of the act provides that the discharge shall not operate as a bar to a judgment on certain fiduciary debts, or in cases where the bankrupt has given certain preferences, or committed other frauds, these are necessary exceptions to the generality of the terms granting a discharge. And an exception, by necessary implication, from other provisions of the statute, is equivalent to an exception in terms. This "consideration leads to another rule of exposition, which is, that when a
We have thus far considered the question, as it would usually present itself, as a question of competition between a particular attaching creditor and the general creditors under the bankruptcy. The only show of reason why such a particular attachment should be set aside by the proceedings in bankruptcy, or by the discharge obtained, is, that it would promote a more equal distribution amongst the general creditors. But that this would not necessarily be the
Such special judgment, or special award of execution, although not frequent, is not unprecedented. The law having exempted the person of a debtor from arrest, after having taken the poor debtors’ oath, leaving his property liable, the process may be varied accordingly. And generally, where a party has a right which cannot be obtained by the ordinary forms of process, the court will vary these forms, so as to secure the party his right. Cooke v. Gibbs, 3 Mass. 193. Express authority is given to the courts by Rev. Sts. c. 97, 10. 11. to vary the forms of execution, when neces
In Tappan v. Poor, 15 Mass. 419, a special plea in bar of execution against the person and certain property of the defendants was pleaded, on the ground of their having obtained a qualified discharge under the law of Maryland. The plea was overruled, on the ground that under the circumstances, and between the parties before the court, the discharge in Maryland was not available in this Commonwealth. The plea in that case conforms substantially to a precedent in 3 Wentworth’s Pleadings, 121, which appears to have been furnished by Mr. Baron Wood, who, I believe, before he was appointed to the court of exchequer, was an eminent special pleader.
A similar plea was pleaded in the case of Smith v. Buchanan, 1 East, 6. The plea was overruled, on the ground that a discharge under the law of Maryland could not affect a debt which accrued in England ; but no objection seems to have been taken to the form or sufficiency of the plea, if the case had been such as to warrant it. See also Ingraham v. Phillips, 1 Day, 117.
As all special pleading is now abolished by statute, in this State, neither the defendant’s discharge is specially pleaded, nor is the plaintiffs’ attachment replied specially, by way of avoidance. But the forms of proceeding do not alter the rules of law. The same rules must be applied to the facts appearing in the agreed statement, as if they were put upon the record by more formal pleadings. Upon these facts, the court are of opinion that the plaintiffs are entitled to such special and limited form of judgment and award of execution, as will enable them to levy upon the property attached upon the writ, and no more.
Verdict set aside, and a new trial granted.