178 Mass. 157 | Mass. | 1901
The plaintiff rests his principal claim upon a contention that an officer, levying an execution on property of the debtor, cannot levy on real estate and personal chattels, and proceed to enforce the execution against both kinds of property at the same time. The English practice, under which a creditor in collecting a judgment must procure separate writs adapted to the enforcement of the judgment in different ways, — a copias ad faciendum if he would proceed against the body of the debtor, & fieri facias if he would levy upon chattels, and an elegit if he would take lands, — does not prevail in this Commonwealth. We have, instead, one form of execution in ordinary personal actions, which is framed in the alternative and leaves to the officer or to the creditor under whose direction he acts, a choice of methods for the service of it. This writ of execution commands the officer to levy upon the goods, chattels, lands and tenements of the debtor, and for want thereof, upon his body. The creditor cannot proceed under the execution against the property and against the body of the debtor at the same time. Kennedy v. Duncklee, 1 Gray, 65. Dooley v. Cotton, 3 Gray, 496. By the common law, the commitment of a judgment debtor in execution was a satisfaction of the judgment. But by our law
No question is raised growing out of the fact that the levy upon lands was by another officer than the defendant, and we do not see that the rights of the parties in the present case are affected by that fact. Complications might arise from an attempt of two officers to proceed under the same execution at the same time, which would be serious.
The other important question in the case relates to the levy upon money which was received by the defendant through an arrangement with the debtor as to the proceeds of property sold while held under the levy. As against Ayers, the assignee under the voluntary assignment, this exchange of goods for money through a delivery to customers who paid cash for them, might have been held to defeat the levy, because the officer allowed the goods to be turned into money in a manner not authorized by law, and because the consent of the debtor could not affect the rights of the assignee; but as against the plaintiff, holding as an assignee in insolvency under proceedings commenced subsequently to the levy on money, the money was lawfully levied on and appropriated. There is nothing to show that the defendant’s title under the levy was founded in any part on an" unlawful preference. By virtue of the levy he all the time had
The contention of the plaintiff on this part of the case is that he has all the rights which Ayers might have had if proceedings in insolvency had not intervened; but on the statement contained in the bill of exceptions we understand that the plaintiff’s title rests on the assignment from the judge of insolvency, and that the previous voluntary assignment was superseded and abandoned on the appointment of an assignee in insolvency, and that it was not used as an instrument under which the assignee in insolvency was to take a title to property which would not pass by the appointment of the judge. The voluntary assignment might be treated as voidable as a preference on the commencement of insolvency proceedings within four months. Steel Edge Stamping & Retinning Co. v. Manchester Savings Bank, 163 Mass. 252. White v. Hill, 148 Mass. 396. Morgan v. Abbott, 148 Mass. 507. Apparently on this account the provision was inserted in the instrument, that in case of such proceedings, “ the assignee should give over the property assigned and its proceeds to her assignee in insolvency.” The bill of exceptions states that, after the assignment from the judge, “.Ayers surrendered to the plaintiff all the property of said Moore which had come to said Ayers, and all his rights under said first assignment.” The language of the first assignment and the subsequent action of the first assignee, as stated in the bill of exceptions, imply an abandonment of the first assignment, rather than attempt to use it to create in the assignee in insolvency a title to property which he could not obtain by virtue of his "appointment. As against the excepting party, we feel bound to give the exceptions this interpretation. It follows that the money was legally levied on by the defendant.
The exceptions to the admission of the testimony of what the debtor told Ayers during the latter part of March, 1897, may be overruled on different grounds. In the first place it does not appear that the parties were then acting in the relation of attorney and client. Ayers had taken an assignment of all the debtor’s property on March 30,1897, and this statement may have been made the next day, in reply to an inquiry as assignee to ascertain what property he held under the assignment. Sec
Exceptions overruled.
