124 Mass. 162 | Mass. | 1878
The bill of exceptions furnishes no reason to doubt that the assignment was made by the defendant in good faith, and that it fulfils all the conditions required by the statute to make it effectual against the claim of an attaching creditor, unless the error as to the signature is sufficient to defeat the purpose which the parties had in view. The defendant is a Frenchman unable to speak, write or understand our language, and, as he signed the instrument with his mark only, it may be inferred that he was not able to discover the mistake as to his name, upon inspection of the document. The person whom he em ployed to write it for him signed the name as he understood it on hearing it pronounced, and the defendant, by the act of affixing his mark and giving the paper so signed to the claimants, must be understood to have adopted the mistaken signature as his own. There is therefore no uncertainty as to the identity of the person making the assignment, or of the fund which he intended to assign. So far as it concerns the defendant and the claimants only, it was a valid assignment; and, if acknowledged and accepted by the trustee, it would be binding upon the trustee also. Gifford v. Rockett, 121 Mass. 431.
It is true that, owing to the confusion and uncertainty as to the pronunciation and spelling of the defendant’s name, the registration of the assignment fails to give to his other creditors the notice which was intended to be provided for by the St. of 1865, c. 43, § 2. But it is not a case of the use of the name of another person, or of the fraudulent use of a fictitious name, or a dishonest attempt to conceal the fact that such an assignment had been made. On the contrary, it was a bond fide attempt to comply
