20 Ga. 44 | Ga. | 1856
Lead Opinion
The Court not being unanimous on all the points, delivered opinions seriatim.
By the Court.
delivering the opinion.
Without repeating the objections made to the regularity of the proceeding as specified in the bill of exceptions, and pronouncing a separate judgment on each, the Court are unanimously of the opinion that none of them were sufficient, in Law, to arrest the case, except as to the omission of the word “ is” in the affidavit. Our brother McDonald thinks that the failure to insert those two little letters, i s, was fatal and incurable. A majority of the Court hold that the oath is good without them; and that to make sense, they are necessarily implied, and may be supplied.
We aro all clear, that the assignment by Benson to Norton is void, under the Act of 1818. It is not an absolute sale, nor does it claim or purport to be. Had the assets over-paid
This is neither more nor less than a trust assignment for certain preferred creditors; and consequently, falls directly within the prohibition of the Statute of 1818, against partial conveyances made by a debtor in failing circumstances. This Court has uniformly held, hitherto, that the insolvent may sell his property to a creditor or any body else, and that he may mortgage or pledge it by way of security, so as not to put it beyond the reach of attachment, garnishment or execution; but that he could not make a technical assignment of his effects, whereby any portion of his creditors were excluded. Whether these rules have been properly applied in every case which has heretoore arisen, is not for me to say. In Banks vs. Clapp, (12 Ga. R. 514,) I have my doubts. I aided in the judgment there rendered, and am responsible for my proportion of the error, if, indeed, it be one.
In the case before the Court, I am satisfied that the instrument is utterly null and void.
Concurrence Opinion
concurring.
In this case the Court is unanimous on all the points decided, except that as to the sufficiency of the affidavit.
The point on the validity of the assignment of the accounts, was not decided.
The affidavit was, I think, sufficient.
A word may be supplied if the sense requires one and the context points out the word, and that even in-the case of a Statute. Brinsfield vs. Carter, (2 Kelly.)
In the present case the sense requires the supply of a
Resides, is it not to be presumed that all concerned in .the-making of an affidavit of this sort, whether party, attorney or officer, intend a compliance with the law. If it is, then is-is the word to be supplied; for it takes that word to make-out a compliance with the law.
I think the Court below was right bn this point.
Dissenting Opinion
dissented, but no dissenting opinion has-been delivered to the Reporter.