Norton v. Reed

6 Wis. 522 | Wis. | 1858

By the Oov/rt,

Smith, J.

The appellants in this case claim under an assignment made by Orson Sheldon. The defendants claim in the right of attaching creditors of the said Shel don, and rely for their defense upon impeaching the assignment aforesaid.

The only ground on which it is attempted to impeach or invalidate the assignment is contained in the charge of the circuit court to the jury on the trial, to the ’effect, “ that the said assignment was absolutely void as to the creditors of the assignor, under and by virtue of chapter eighty-seven of the session laws of 1857, and that the plaintiffs claiming as assignees under such assignment were not entitled to recover.”

This charge was based upon the admitted fact that the assignees executed no bond as required by the said chapter 87 of the laws of 1857.

It therefore becomes our duty to determine the application and legal effect of the said statute, which provides that all assignments made with a mew to insolvency, shall be void as to creditors, unless the assignee shall execute a bond in a penal sum and with sureties, to be approved by the county judge, &c., conditioned to pay over all moneys that shall come into his hands from the effects of the assignor, after deducting the necessary expenses of performing his trust to the several persons or parties named in the assignment, according to the tenor and effect thereof.

The first question which presents itself for our consideration is, to what class or kind of assignments does this statute apply? Not certainly to any and every assignment made by a debtor for tlie benefit of Ms creditors. TMs may be, and frequently is done by persons perfectly solvent, witb a view to a more speedy and satisfactory adjustment and payment of debts, and realization of the surplus estate. But tlie class of assignments to which, this statute has reference are those made with a view to insolvency. It can apply to none others. Hence the omission to execute the bond invalidates no other assignments than those made with a view to insolvency. But how is this fact to be ascertained, whether it is made with a view to insolvency or not ? The statute prescribes no mode of ascertaining the fact. There is nothing to show that this assignment was made with such views. No inquiry as to that fact was instituted; nor do we perceive how it could have been done.

But we are of the opinion that the act in question was designed to apply to proceedings in insolvency under chapter 128 of the revised statutes, and that the phrase “ with a view to insolvency ” has reference to the object and design of an insolvent debtor to avail himself of the benefits of that statute. Although there is evidently some mistake or oversight in the original draft, or in the engrossing of the act, we do not see as it can have any intelligent application to any other class of cases that the one stated.

However, if the act of 1857 has not the application above mentioned, it must be declared void for uncertainty. How is the county judge to know whether the assignment is made “ with a view to insolvency ” by the debtor ? Whether the “ view ” is near or remote ? Who is to be made the obligee of the bond? How is his assent to become a party to the contract and proceeding to be ascertained ? What is the nature or extent of the trusts he assumes ? Or is it not necessary that he assent at all ? Can he be made an involuntary obligee or trustee ? All these questions suggest themselves, showing that the act is void for uncertainty if it be general in its purview.

We think if the act of 1857 does not apply to chapter 128 of the revised statutes, it is incapable of practical construction on account of its uncertaintity and must therefore be declared void.

If this view be correct, it follows that the charge of the court below to the jury was erroneous, and that the judgment must be reversed. Judgment reversed with costs.