31 Conn. 560 | Conn. | 1863
Officers’ receipts are usually absolute and unconditional in terms, and conclusive in respect to their recitals and admissions, but are, nevertheless, by operation of law contingent. The officer has no personal interest in the property or in the possession of it; he holds it as an officer of the law, aiid as bailee for purposes of law. His right to resume the possession of it, and enforce the promises of the receipt, rests on his liability to the creditor during the existence of the lien, and to the debtor or owner when that lien is dissolved. And when his liability to the creditor ceases by reason of a
In this case the debtors were owners of the property when it was attached; it was not removed from their possession or delivered in fact to the receiptor; by the law of 1863 and the fact of insolvency the lien was dissolved; and but for the act of 1860 the receipt would have been inoperative. In what way; and to what extent, then, did that act make or continue this receipt opérative against the receiptor, and in favor of the trustee in insolvency ?
The plaintiff does not claim,- and obviously could not with propriety claim, that the statute provides for a transfer of any rights, as such, acquired by the attaching creditor. In this case the original action was tort for unliquidated damages. It does not appear that the plaintiff would recover any thing, or if any thing, how much. No provision is made, by a prosecution of the suit or othei’wise, for ascertaining the amount of those damages and the extent to which the receiptor would be liable on his receipt, under the alternative promise to pay the damages and cost recovered by judgment; and every line of the statute indicates a purpose to provide for the delivery of the property to the trustee because he is entitled to it by virtue of the assignment, and not because any rights of the attaching creditor are intended to be transferred to him.
But the plaintiff does insist that the contract must be presumed to have been made in view of the operation of the statute ; that the lien acquired in favor of the attaching creditor is expressly continued, in all cases, until the property or its valúe has been delivered or paid to the trustee; that by the common law and the terms of the receipt the officer is entitled
The plaintiff is right in respect to the first clause of this claim. Contracts are usually made with reference to the established law of the land, and should be so understood and construed, unless otherwise clearly indicated by the terms of the agreement. He is also correct in respect to the right of the officer to sue the receipt, The officer may bring his action and recover the agreed value of the property at any time while the lien is in force. But if no property was in fact attached, or none was removed and came into the possession of the receiptor, the officer can not retain that value after the lien is dissolved, or pay it over to the debtor or his trustee. The receiptor in such cases is a surety; and, if his money is taken by the officer and by force of an action on the receipt, it remains his money until appropriated to pay the debt of the creditor, and in case of a dissolution of the lien, or if there is a surplus after satisfying the judgment recovered, the officer is a bailee for and answerable to the receiptor for the amount. Hence, although the right to sue on the receipt in such cases is unquestionable, the exercise of that right is not expected by the receiptor or the officer until judgment and execution have been obtained; and the exercise of it can not affect the ultimate rights of either.
The import of the remaining portion of the plaintiff’s claim is, that in all cases where the property, or its value as described in the receipt, has not actually passed into the hands of .the trustee, whether that was possible because the receiptor held the property, or whether it was impossible because no such property was actually attached, or because, not having been removed, the debtor has disposed of it and paid his debts, or sold it and bought other property, or paid it to a creditor and
It is an established rule in the interpretation of statutes that “ a construction which is contrary to natural justice and ■ equity, or which will be necessarily productive of practical inconvenience to the community, is to be rejected, unless the language of the lawgiver is so plain as not to admit of a different construction, (Donaldson v. Wood, 22 Wend., 397;) and it is unquestionable that the construction claimed by the plaintiff would be contrary to natural justice and equity, and productive of inconvenience to the community.
The contract of suretyship contained in an officer’s receipt
But a careful examination and analysis of the statute dis
It has been urged in the argument that it was the intention of those who framed the act and of the legislature to prevent by its enactment the fraudulent disposition of property attached or receipted, by a debtor who purposes insolvency before the lien becomes preferred. Frauds of that kind doubtless may be and have been perpetrated, and their prevention is desirable. But it is not necessary or just to require receiptors in all cases to guarantee that they shall not be attempted, under a penalty exceeding the value of the property; and nothing but the most unequivocal language would justify us in finding such to have been the intention, either of those who framed the law or of the legislature; and certainly no such intention clearly appears in the act.
Again, the law in terms and in its general purpose includes property which has been released from attachment by the substitution of a bond, but no provision is made for enforcing the delivery of the property by action on the bond, nor is any right whatever in the bond given to the trustees. Doubtless this discrimination rests on the fact that the lien is discharged ’by the substitution of the bond, and the property presumptively restored to the debtor. But the undertakings of the obligor in the bond, and of the receiptor in the réeeipt where property was not in fact attached or was not removed, are precisely the same; both have become mere sureties for the officer to the creditor; and the relation of the debtor to the property, and his opportunity to make a fraudulent disposition of it, are the same. The property in one case is just, as much exposed to the mischief which it is suggested that it was the purpose of the law to prevent as in the other. Yet the legislature, although they embrace the property described in both within the
But it is very clear upon that hypothesis that the trustee in insolvency is entitled to avail himself of the receipt in all cases where the property or its avails has come to the possession of the receiptor, to recover the actual value of the property or such avails. In this case it is found that the actual value of the property was $175, and that it was sold by the debtor, and $100 of the avails deposited with the defendant. That sum the plaintiff is entitled to recover. It can not avail the defendant to claim that he paid it to the trustee to release the debtor from imprisonment. The court of probate found that a further sum of $100 was in the hands of and retained by the debtor, and the fair import of the finding of the superior court is, that the sums were different, and not identical.
The superior court must therefore be advised to render judgment for the plaintiff for the sum of $100, and interest from the time of the sale of the property and deposit of the money.
In this opinion Hinman, O. J., and Sanfobd, J., concurred.
I can not concur in the decision of the court. The plaintiff in this case as an officer had, since 1860, attached certain property in a suit in favor of Brand against Tilden & McNeil. The defendant receipted the property by an instrument under seal, and bound himself to deliver it to the plaintiff, or to pay him five hundred dollars. This engagement was unconditional in its terms. There can not be a shadow of doubt that during the life of the attachment the plaintiff could, at any time, demand the property of the defendant, and on his refusing or neglecting to deliver it, he could recover the five hundred dollars. What has occurred to take away
Where a statute is so explicit no real or imaginary hardship to the receiptor ought to affect the construction of it. If the legislature has made a hard law it is not the duty of the court to nullify it. But there is no hardship in the case. Whatever the defendant did, he did understandingly, and of his own free will. If he signed a fictitious receipt he can not complain if it is treated as genuine. If he took the property and gave it up to the debtor, he did it voluntarily to accommodate him. He knew the law as every body is bound to, and as a prudent man he did not sign such an instrument without ascertaining what his liability would be, and that under the law of 1860 such a receipt, if the debtor went into insolvency in sixty days, would enure to the benefit of the general creditors, as in some states all receipts do. Of what then has he
What is there in this case to call for any special pity for the defendant or indulgence towards him? It is said that where a receiptor does not take the property into his custody, or does so and afterwards delivers it up, he becomes a surety. What then ? Most indorsers are sureties; are they therefore not to be held responsible ? Probably many of the creditors of these debtors became so by reason of having been bondsmen for them at their request, or by reason of having been obliged to pay money for them. All of them have parted with money or property for their benefit. They all had reason to expect indemnity. But the defendant, if he became surety, became so after the debtors had become embarrassed, and by voluntarily relinquishing the means of securing himself which he had once had or might have had. Why then should he be relieved at tbe expense of the creditors? What ground of sympathy for an unfortunate sufferer is there here, to require a court to construe away the plain provisions of a statute?
The construction given to this statute appears to me to contravene the only object which the legislature had in view in passing it. It is well known as a matter of history, and it is obvious from the statute itself, that the necessity for its passage was the fact that many insolvent debtors had done, what it is plain they might do when their property was attached, and perhaps attached upon their own procurement; they had provided a friend to receipt the property, and redeliver it or leave it in their hands, and then converted it into money, and either pocketed it or paid it to some favorite creditor out of the state. This could be done with impunity, and it seems legally, since their assignment in insolvency dissolved the attachment and left the receiptor discharged of his liability. Mead v. Dayton, 28 Conn., 33. By the assignment not only the attaching creditor but all the general creditors lost all benefit from the property attached. In this way the statute of 1853, instead of preventing a preference among creditors, enabled the debtor to prefer favorite creditors more effectually than before the
In this opinion McCurdy, J., concurred.