Fiske v. Carr

The opinion was by Weston C. J. The counsel for the deféndant, who represents the interests of the Lafayette Bank, objects to the instrument of assignment, which is the basis of the plaintiffs’ title, as containing certain provisions, not authorized by law, and omitting to specify therein a time, within which creditors may become parties. As to the time allowed to creditors, the period of thee months is provided by Statute, of which the assignees are required to give notice. This renders the specification of the time in the assignment unnecessary. If there is any weight in the other objections, wre are of opinion, that they are not open to be taken in behalf of the Lafayette [305] bank who have assented, to the terms of the assignment, by-becoming parties thereto. With regard to the date of the year, in the certificate of the oath to Hammond, which is manifestly a mistake, it may be corrected by the justice. It is insisted, that as the attachment was made, before public notice was given of the assignment, the attachment is entitled to priority. We are however of opinion, that by the Statute of 1836, c. 240, the property assigned is protected from attachment, if the notice required is published, within fourteen days after the execution of the assignment. In the schedule of the personal property, upon which the assignment was intended to operate, is to be found twenty shares in the Lafayette Bank. They had not been transferred on the books of the bank, prior to the assignment. But as it is property assignable in its character, it is contended that this formality is not essential to the plaintiffs’ title. The case of Sargent & al. v. the Franklin Insurance Company, 8 Pick. 90, has been cited to show, that the assignable character of this species of property, cannot be restrained by formalities imposed by the by-laws of the corporation. But the objection taken here is, that the entry of the transfer upon the corporate records, to give legal validity to the title, is expressly required by the Statute of 1838, c. 325. And such is the fact, that Statute declaring, that until this is done the title shall not pass from the former proprietor; and the date of the transfer, and the names of all the parties thereto, is required to be recorded. This was doubtless intended to render accessible, to all persons interested to know, record evidence of the title. This statute is too positive in its terms to be disregarded. In our judgment therefore the title to these shares, the assignment notwithstanding, remained in Hammond, and that their attachment in behalf of the bank is justified. By the transactions between Hammond and Coolidge, the former became mortgagee of the furniture, subject to the conditions specified in their agreement. Hammond assigned his interest to the plaintiffs, as he might lawfully do, whereby they took his place as mortgagees, subject to the rights of Coolidge. It was not attachable then, as Hammond’s property, nor had [306] Coólidge such an interest as rendered the property itself liable to be attached by his creditor. The officer therefore cannot justify the attachment, although the writ was against both Hammond and Coolidge. And the plaintiffs, being the assignees of the mortgagee, may maintain trespass against him for taking the furniture. By the agreement, in virtue of which the case finds that property was sold, the plaintiffs were to cause the sale to be made and the proceeds to be deposited in the bank, for the benefit of the prevailing party. This sum, it is fairly to be understood, was to represent the furniture; and as it was to lie in deposit, it could not be intended, that interest should be allowed. The verdict is accordingly to be amended so as to stand for the sum of two hundred dollars, upon which judgment is to be rendered.