130 Mass. 410 | Mass. | 1881
The St. of 13 Eliz. c. 5, declared all gifts or conveyances of goods and chattels, as well as of lands and tenements, made in fraud of creditors, to be void as against them. By the law of England before the American Revolution, as established by decisions of Fortescue, M. R., Lord Hardwicke and Lord Northington, fraudulént conveyances of choses in action, though not specified in the statute, were equally void, but from the nature of the subject the remedy of the creditor must be sought in equity. Taylor v. Jones, (1743) 2 Atk. 600. King v. Dupine, (1744) 2 Atk. 603, note. Horn v. Horn, (1749) Ambl. 79. Ryall v. Rolle, (1749) 1 Atk. 165; S. C. 1 Ves. Sen, 348. Partridge v. Gopp, (1758) 1 Eden, 163; S. C. Ambl. 596. Bayard v. Hoffman, 4 Johns. Ch. 450. Hadden v. Spader, 20
Of the only case before our Revolution cited in the learned argument for the claimant, we have but this brief note: “A man, being much in debt, six hours before his decease gives ¿6600 for the benefit of his younger children; this is not fraudulent as against creditors; though it would have been so of a real estate, or chattel real.” Duffin v. Furness, Sel. Cas. Ch. 77. The report, having been published in 1740, cannot have been unknown to the eminent English judges who made the decisions already cited; and, as observed by Lord Redesdale, the book is anonymous and of not much authority. Barstow v. Kilvington, 5 Ves. 593, 598. Hovenden v. Annesley, 2 Sch. & Lef. 607, 634. The opinions of the English and Irish courts of chancery since our Revolution, cited for the claimant, cannot outweigh the cases above referred to, as evidence of the law of England at the time of the separation of the colonies from the mother country.
In the case at bar, it is agreed that the law of New York respecting fraudulent conveyances is the same as the common law and the law of Massachusetts; and that by the law of New York choses in action, although they cannot be attached or levied upon, yet may, after execution issued on a judgment at law, be reached by proceedings before a magistrate in the nature of proceedings under the poor debtor acts of this Commonwealth, and by the appointment of a receiver to take and dispose of the debtor’s property. And it is not doubted that, if the assignment in question had been made in this Commonwealth between persons residing here, it could have been avoided by trustee process.
The assignment having been found by the judge, before whom the case was tried without a jury, to have been made in fraud of the plaintiff as a creditor of the assignor, and being,
Exceptions overruled.