76 Ga. 109 | Ga. | 1886
Owing to the practical importance and widely extended application of the principles involved in this and two other records returned to the sainé term of this court, to the mercantile and commercial affairs of the community, We have postponed their determination, that we might have
In addition to the protection afforded to creditors against partial assignments by insolvent debtors, and to prevent them from suppressing or misrepresenting the extent and character of their liabilities,, the legislature, by an act approved the 17th of October, 1885 (Acts, p. 100), declared, §1, that, “ in all cases of voluntary, assignments,” made after the passage of the act, “ by failing or insolvent debtors for the benefit of creditors, it shall be the duty of the person, firm or corporation making such assignment to
We.have held that the act of 1881 is a remedial statute,
From the very nature of the subject, it is impracticable, if not impossible, to lay down any rule upon that subject. Generally speaking, the requirements of the law and the conditions it prescribes should be closely followed; at least an honest effort should be made to carry it fully into effect according to its purport and intent. While the omission of some slight and unimportant article of little or no value from the schedule of effects, or some one or more creditors
That this course has been pursued in some of our sister states, notably in New. York, Indiana, and perhaps others, under their peculiar statutes, we are well aware. In those states insufficient assignments may be completed at'the instance of the assignor, of the assignee, or the court to which , they, are returned, and in some of them on the application of
.4. The general clause in the assignment, conveying to the assignee such property of the .assignor as was left out of the schedule of assets, so far from sustaining the position of counsel for which it was invoked, is rather adverse to it; at all events, it contravenes the policy of the legislature in enacting the laws in question, as was clearly indicated by this court in its judgment rendered in the case of Crittenden Bros, et al. vs. Coleman <& Co., tit supra. The law looks with distrust upon such’ sweeping clauses in deeds, especially where particularity of detail is requiréd. Ever since Twyne’s case, it has been, if not a recognized axiom, at least a well-settled principle thatfraud lurks in generalities.”
Each of the positions taken in this case will be amply sustained by the authorities cited in the able and exhaustive briefs of counsel, found at the end of the reporter’s statement. As there must be a reversal of the decretal order excepted to in this case, it is certainly unnecessary, and might be improper, to pass upon the other questions made, at least so far as they affect the rights of contesting creditors to the property assigned, and the equities which may exist between themselves and others. The deed of assignment must be set aside for the reasons already given; and that the fund may be preserved for future adjudication and distribution among those who shall appear entitled to it on the final hearing of the bill, the injunction must be ordered and the receiver appointed, as prayed, and upon such other terms as may appear equitable and in accordance with law.
Judgment reversed.