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session of the proprietors, and in such situation that it could not be lawfully attached, by the common writ, as if it consisted of raw hides in the process of being tanned, it would be attachable only by the trustee process.1 But as it can make no difference, in respect to the situation of the property, whether the whole property is placed in the hands of a third person, or the portion belonging to one part owner is placed in the hands of the other, it may be considered that, by the conveyance, the portion belonging to the assignor becomes so situated that it cannot be attached by the common process. For the right of exclusive possession of the whole is conferred on the assignee for a particular purpose which is legal, and on account of which, therefore, he is to be protected in his possession. Still, however, as he has the "goods and effects" of the assignor in his hands, he is liable as trustee by the express words of the statute; and when the purpose, for which the right of possession is conferred on him, has been effected, he may discover and expose them to be taken and appropriated to the payment of an execution issued upon a trustee process. What then is the purpose for which the assignee has the right of exclusive possession conferred on him? It is that the personal chattels, as well the portion belonging to the assignor as that belonging to the assignee, shall be changed into other personal chattels, which are more susceptible of division, to wit, money; and that upon such exchange, the assignee shall retain his exact portion, and hold that which belongs to the assignor for his use. When this purpose is accomplished, the portion of the chattels belonging to the assignor may be exposed to an officer having an execution against him, and be appropriated to the satisfaction thereof.' pp. 28-30.
'If A, being indebted to B, C, and D, deliver property to B, upon an agreement with him, that he shall convert it into money, and, with the proceeds, first pay himself, and then the debts due to C and D, either in full or pro rata, provided they assent to the arrangement; immediately upon such delivery, B becomes a joint owner of the property with A to the amount of his debt. The residue remains as before the property of A, and, if attachable, may be attached as his by the trustee process. If C and D, when informed of the arrangement, become parties to it, B's interest will be increased to a corresponding amount. If, however, another creditor of A previously summon B as his trustee, he will acquire a lien upon such residue to the extent of his demand. C and D
1 Clark vs. Brown & tr. 14 Mass. R. 271.
may afterwards, if they please, become parties to the transaction; and if they do so, B's interest in the property will be accordingly enlarged. He will then become a proprietor to the extent of his own debt, and of what may remain, after paying the attaching creditor, to be paid to C and D; and A will remain the owner to the extent of that creditor's demand, and of any surplus that may finally remain after paying B, C, and D, and such creditor. The agreement of the parties requires B to ascertain the value of the property, and to make it susceptible of division by exchanging it for money, and then to divide it according to their respective ownerships. He will, in the first place, retain an amount equal to his own demand: in the second place, he will deliver to the attaching creditor of A so much of the portion which belongs to A, as will satisfy his lien acquired by the attachment: in the third place, he will divide between C and D the portion which belongs to them, according to the terms of the agreement: and lastly, if there should be a surplus belonging to A, he will deliver it to him.1 In this manner, the creditor's right of attachment will not be impeded, except so far as it lawfully may be, by the debtor's right of preference; nor will the debtor's right to prefer a particular creditor or to make arrangements with his creditors be impaired, except so far as it must unavoidably be by the common right of attachment.' pp. 81, 82.
Although our author's theory is very ingenious, yet it is at variance with the common principles of conveyancing and creates greater difficulties than it obviates. An assignment of property to assignees for the benefit of such creditors as may become parties to the instrument within a limited time, in the form common in Massachusetts, evidently makes the assignees the legal owners of the property, and trustees of it for the purposes mentioned in the assignment. If all the creditors become parties, the assignees are then trustees for those creditors to the amount of their debts, and if a surplus should remain they are trustees of the assignors for that surplus. If part only of the creditors become parties, and the rest are excluded by not having become parties in time, the assignees are trustees for the assenting creditors to the amount of their debts, and for the assignor for any surplus which may remain.
1 See the opinion of PARRIS, J. in the case of Jewett vs. Barnard & trs, 6 Greenl. R. 381.
2 The reader will bear in mind that the word trustee is used in two senses, in our remarks, sometimes for a person made a trustee by an instrument, and at others for one summoned by the trustee process. The connexion will always show in which sense the word is used.
So far there is no difficulty. But in the case supposed by our author of a part only of the creditors having assented to the assignment, another creditor then summoning the assignees as trustees of the assignor, and other creditors subsequently assenting to the assignment, he appears to think it necessary to regard the assignor part owner of the property with the assignees in order to give effect to the trustee process. We do not propose to vindi
cate the decisions of the courts of Massachusetts and Maine which have given effect to the trustee process under such circumstances. But we do not see how the assignor can be regarded as a part owner. He has in form parted with his whole property in his chattels by an instrument admitted by the courts to be valid. The assignees have the undisputed right of selling all the chattels, the assenting creditors have a claim on the trustees to have all the chattels, if required, sold for the payment of their debts. The right of the assignor is subsequent to theirs, it is merely a claim on the assignees to account to him for the contingent surplus. If we say that the assignor is a part owner of the assigned property, we must also admit that the assenting creditors are also part owners. Their claims upon the fund are of the same nature, only prior to those of the assignor. The only difference is that the creditors are to be paid in money, while the assignor would have a claim on the assignees for any specific chattels which remained after satisfying the purposes of the assignment.
In a note to one of the passages above, our author says,—
'It is common to consider an assignment in trust for creditors as the creation of a trust estate for their benefit; and if that be not the true character of the conveyance, it is difficult to understand upon what ground it can be placed, consistent with the decisions in respect to the liability of trustees, unless it be that of a grant or sale as above-mentioned. In the case of Widgery et al. v. Haskell, (5 Mass. R. 154.) PARSONS, C. J. expressly says, that "the policy of the law providing for attachments, and not providing any remedy in equity against the trustees, prohibits the estab lishment of a trust estate created by an insolvent debtor for the benefit of his creditors, not parties to it ;" and in the case of Stevens et al. v. Bell, (6 Mass. R. 342.) he also says, "in consequence of our statutes authorizing attachments, and of our want of a chancery jurisdiction, it has been several times settled, that a debtor cannot convey his estate in trust for his creditors generally, without their consent given to such conveyance; but to creditors consenting and parties to the conveyance, he may GRANT all his
estate, for the payment of their debts, or to secure their indemnities." The nature of these conveyances, as stated in the text, is conceived to be entirely supported by the argument of C. J. PARSONS, in the above-cited cases.'
We do not perceive any difficulty in regarding assignment as the creation of a trust estate for the benefit of the creditors. And the passages from Chief Justice Parsons' opinions so far from denying that an instrument of the kind under discussion creates a trust estate, clearly imply that such an estate may be created where the creditors consent to it. Indeed in the very case of Stevens v. Bell he says explicitly that a debtor 'may, without question, secure his creditors and his sureties, by pledging his property, or by conveying it in trust for their use, with their consent.'
We find it difficult to account for the idea entertained by our author that an assignment for the benefit of creditors did not create a trust estate in the assignees for the purposes mentioned in the instrument. That is so obviously the nature of the instrument that the term trust deed is applied by our courts to the assignment, trustees to the assignees, and trust fund to the assigned property. See Wilde J. opinion in N. E. Bank v. Lewis, 8 Pick. 117.
Judge Story's Commentaries on the Constitution of the United States. A numerous party in the United States was opposed to the constitution at the time of its adoption, and an hostile spirit in relation to it has existed ever since. A most strenuous and unremitting exertion has been necessary, on the part of the friends of social institutions and law, to prevent us from relapsing into a state of anarchy. The most frequent attacks have been directed against the judiciary; for, if the administration of the law can be crippled, this is equivalent to the overthrow of all law. The powers of the government again are the objects of attack, and some of those most essential to its maintenance are denied to have been granted by the constitution, for if the powers of the government can be curtailed and enervated, and its operations embarrassed, a near approach may, in this way, be made to a state of anarchy, while the form and semblance of government is still maintained. Finally the desperate plunge of nullification is proposed. Doctrines tending to the destruction of the constitution, were never broached with greater boldness, and urged with greater vehemence, than during the few past years.
There never has, accordingly, been a period, since the adoption of the constitution, when an elaborate, profound, and lucid exposition of its true principles was more needed than at present. Such a one is the work of Mr. Justice Story. The reputation of the author is a sufficient guaranty of the character of the work. From the opportunity we have had of examining it, we can assure the public, with the greatest confidence, that it will fully answer the high expectation excited by his well known learning and talents. We forbear to speak particularly of these Commentaries at present, as we propose to make them the subject of an article in our next number. The work is to consist of three volumes, which are nearly through the press, and will be published in the course of a few weeks. An abridgment, in one volume, will be published at the same time. We copy below the plan given of the work in the preliminary chapter.
"The principal object of these Commentaries is to present a full analysis and exposition of the Constitution of Government of the United States of America. In order to do this with clearness and accuracy, it is necessary to understand, what was the political position of the several States, composing the Union, in relation to each other at the time of its adoption. This will naturally conduct us back to the American Revolution; and to the formation of the Confederation consequent thereon. But if we stop here, we shall still be surrounded with many difficulties in regard to our domestic institutions and policy, which have grown out of transactions of a much earlier date, connected on one side with the common dependance of all the Colonies upon the British Empire, and on the other with the particular charters of government and internal legislation, which belonged to each Colony, as a distinct sovereignty, and which have impressed upon each peculiar habits, opinions, attachments, and even prejudices. Traces of these peculiarities are every where discernible in the actual jurisprudence of each State; and are silently or openly referred to in several of the provisions of the Constitution of the United States. In short, without a careful review of the origin and constitutional and juridical history of all the Colonies, of the principles common to all, and of the diversities, which were no less remarkable in all, it would be impossible fully to understand the nature and objects of the Constitution; the reasons on which several of its most important provisions are founded; and the necessity of those concessions and compromises, which a desire to form a solid and perpetual Union has incorporated into its leading features..
'The plan of the work will, therefore, naturally comprehend