5 Me. 245 | Me. | 1828
delivered the opinion of the Court at the ensuing term in Cumberland.
The first question presented in the disclosure of Isaac Emery is, whether, before the service of the trustee process upon him, there had been any assignment to Isaac Mams, of the debt due from him to the principal defendants. An order was enclosed to him from the defendants, in a letter dated May twenty third, 1826, for twenty five hundred dollars, in favor of Isaac Mams, and requesting him to accept the order, and to hold it for the said Isaac; or until he should hear from them again. This order, Emery says, he accepted on the day he received.it, which was the twenty fifth of May. On the ' twenty third of the same month, he says he was indebted to the defendants in the sum of twenty five hundred dollars; but that they had, at the same time, merchandize of his consigned to them to the amount of one thousand dollars. From, the whole disclosure it is to be inferred that his acceptance for the whole amount, was upon the
A question of more importance remains in the .case, and one equally applicable to both the trustees; whether they ought to be discharged by reason of the assignment to Ellery and others, of the twenty fifth of May. It is objected that the assignment ought not to have operation until the second day of June, after the service of the trustee process, because on that day, custom house bonds, to the amount of nearly one hundred thousand dollars, were provided for out of the property assigned. If the assignment of the twenty fifth of May were liable to no legal objection, it might remain good, and from that date, notwithstanding the provision subsequently made for the custom house bonds, by the assent of all the parties to the instrument.
It is further objected that the' assignment contains conditions, which the defendants had no right to impose upon their creditors, and that it is therefore void in respect to such as have not expressed their assent, by becoming parties thereto. Those conditions are, that the creditors should accept the provision made for them in full of their respective demands, and should thereupon release the defendants therefrom ; and that no creditors were to have the benefit of the property assigned, who did not' become parties to the instrument within seventy days. With regard to’ the condition requiring a release, Story J. in the case of Halcey v. Fairbanks, upon a full consideration of the authorities, deduces that they support the validity and legality of such a stipulation, although he declares, that if the question were entirely new, the inclination of his mind would be strongly against it. In that case the same learned judge states that the time limited for creditors to become parties to the instrument, maybe so short or so long,, as-to justify a presumption of fraud,
In foreign administrations, to which proceedings here are made ancillary, funds thus collected within this jurisdiction are held subject, to the claims of our own citizens, to whom payment is to be made
In the case of Le Chevalier v. Lynch & al. Doug. 170, the assignees of a bankrupt were not permitted to defeat a process! of for» eign attachment made after the bankruptcy ; although the policy of the bankrupt system is much favored in England, and the attachment was made in a colonial jurisdiction.. The bankrupt law of a foreign country does not legally operate to transfer property in the United States. 5. Cranch 289.
Nor can property in this State be put out of the reach of creditors here, by the insolvent laws of another State. Comity between States is not thus to be extended, to the prejudice of our own citizens. The case of Ingraham v. Geyer, 13. Mass. 146. cannot be distinguished in principle from the one before us. There, an assignment made in Pennsylvania, resembling the one in question, except that four months instead of seventy days, were allowed to creditors to accede to its provisions on their part, was not permitted to defeat a foreign attachment made in Massachusetts, by a creditor resident there; although the trustee had notice of the assignment, and set it forth in his disclosure. , Trustees charged.