Beach v. Viles

Syllabus

This being a suit uppn a local statute, giving a particular remedy, in the nature of a foreign, attachment, against garnishees, who possess goods, effects, or credits of the'principal. debtor; the decisions which'have been made on the construction of that statute by the state court of Massachusetts, are entitled’to great respect; and ought, in conformity to the uniform practice of this .Court, to govern its'decisions! [678]

Whereunder a voluntary assignment of an insolvent debtor, the proceeds of all the property received by the assignees under the assignment are insufficient to pay the amount of the just debts and dividends due to the assignees; the established doctrine in Massachusetts is, that the assignees cannot be holden as trustees of the debtor, to the creditor who is the plaintiff in an attachment, so as to be chargeable to nim in the suit'. Even-if the assignment were held to be con- ■ structively fraudulent in point of law, they would be entitled to retajir their own bona fide debts; for as to those, they stand upon equal grounds with any other creditors. This is understood to be the clear result of the cases decided in Massachusetts. [678]

ERROR to the circuit court of the United States, for the district of Massachusetts.

The. original process in this case was founded- on the sta- ‘ tute of Massachusetts; passed 28th of February 1-795, entitled “ an-aet to enable creditors to receive their just demands out of the goods, effects, and credits of their, debtors, when the same cannot :be attached, by the ordinary process of law.” In said process it is alleged that Loud and Hunt, being indebted to. George Beach, as set' forth in the process, refused to pay the same, to his damage $.4000;.aiid/in the process it.-is also alleged -that Loud. and Hunt ..had not in their own hands and possession, goods, or estate to the value of $4000, ;but had-entrusted and deposited' in., the hands of said defendants, goods,: effects and credits to the value; and the said defendants were summoned to show cause why execution to be issued on such judgment" as George Beach .might recover in said suit against Loud and Hunt, should not issue against their goods, effects and credits in the hands and possession of these defendants. The process was dated the 21st daj November 1826; service

was made 6n the 23d of the same month, and it Was entered at the May.'term of the circuit court of the United States, in Boston, in. 1827.

The defendants^ the supposed trustees, appeared, and severally answered/under oath, as set forth in the records From their'answers it appears, that, on the 15th day óf December 1825, an indenture of assignment was made, which is also sét forth in the record,, in which Loud and Hunt' were .parties .of the. first part; Nathan Viles', Henry Atkins.and Daniel Holbrook', preferred Creditors,’were-parties of the second part; and sundry. other, persons creditors of Loud, and Hunt, who might .execute the indenture within six . months from its date, were' parties, of the third part.

By this indenture Loud and Hunt assigned tó the defendants .certain real and.personal property, effects and demands, in trust, to sell,and collect the same, and after defraying all expenses, first, to pay the parties of .the second part all sums due them respectively, and dll sums fori-'which they w'ere liable on account of Loud, and . Hunt, as in.dorsers or oth'erwisé; second, to pay the residue to' siich creditors mentioned in the schedule thereto.annexed, ás shouid become parties, in proportion to their demands* by an equal-rate per dollar; third, to. pay over the surplus, if any, and also the dividend which would, have been payable to any creditor, if he hdd not neglected to become a party thereto, to Loud ánd Hpnt.

There is a clausejn the indenture, providing-for adding to and perfecting the, schedules, to carry into effect the intentions of the parties^ a general power to receive and collect* and a clause accepting the property . assigned in full; and each assignee is to be answerable <for his own acts only.

The nominal amount or estimate of the property assigned exceeded the amount of debts andliabiliti.es of the'assignees; but by reason-of losses on property then in hápds of certain consignees, and bad debts, the. produce thereof fell much short ofit.

The just claims of those, creditors who became parties to the.indenture according, to its. terms, and before the process in, this case, was served* amount to about $20,000* The par

ties of the first arid second part, and nearly all those of the third part; signed and sealed the indenture onfhe day of its date, and all who are now parties, became so within the term of six months, therein prescribed. The assignees took possession of the property assignedon the same 15th of December, •and fitted arid prepared the same* (a large portion of which consisted of materials in hands, of manufactures in an unfinished state) for sale. ■ ■ They also collected the demands, as far as practicable, and realized in money from the whole personal property and effects, including the sums expended in completing and preparing for sale, the sum of, ,$'8309 28 cents. They also advertised the real estate; but were prevented from effecting a saje by reason of certain attachments, thereon. This reál estate they estimate to be worth $2000, which cannot be reached By the trustee process. It also appears from the answers, that the consideration for the said assignment was truly, as therein expressed, for sums justly due. from Loud and Hunt, to the said defendants and other credi- • tors ; and the liabilities before that time incurred by Hol-brook for Loud and Hunt, to a greater amount than the. whole value of the. property so assigned; that the whole proceeds of the said property and effects had actually been applied in part discharge óf the said dues and liabilities' before the service of the plaintiff’s process, and in pursuance of the provisions of said indenture; excepting the sum of $805 44 .cents, in the hands of Viles and Atkins; which last sum, they held to be appropriated according to said trust, and that no farther sums would probably ever .be realized therefrom. That the sums'necessarily expended by the assignees, in and about the premises, amounted to $1626 57 cents, that the assignment \yas. made bona fide,, and withbuf' any intent to defraud, delay or hinderany of the creditors of Loud and Hunt from recovering their debts.

And they further declared that the defendants had not at the time of.the service of the plaintiff’s writ upon them any goods, effects or credits in their hands or possession belonging to Loud and Hunt or either of them. It also appears ■ from - said ‘ answers that Holbrook was perfectly, solvent in his own affairs; and free froin debt, excepting as

.the surety of Loud and Hunt,' and that the assignment was expected to-prevent-his becoming insolvent on their account.

The question before the circuit court was, whether the defendants, upon their said answers and disclosures, should be charged as the trustees of said Loud and Hunt, or discharged.

The circuit court having intimated that this case fell within the principle of the decisions of the supreme judicial court of Massachusetts, and particularly the "case of Andrews vs, Ludlow et ah 5 Pick. Rep. 28 , the counsel for the plaintiff declined, arguing the case; and judgment was rendered, that the supposed trustees be severally discharged on their answers. ' The plaiñtiff then sued but his writ of error, to have . said judgment reversed. .