Hutchinson v. McClure

The opinion of the Court, was delivered by Lewis, J. This was an issue directed to the Common Pleas of Brie county, to try whether Monroe Hutchinson, assignee of Squire Hall, was entitled to priority over John McClure, Steward C. Marsh, and Alexander Freer, in the distribution of the fund raised by the sale of personal property of Hall, under executions in favor of the creditors last named. On the 1st of August, 1846, Hall was indebted to McClure on a promissory note given for the purchase of a stock of goods at Cranesville; and on the 10th August, 1849, gave a single bill fei; the amount, with power to confess judgment. On the 8th December, 1848, he was indebted to McClure on another promissory note for goods at Grirard, and on the 5th May, 1851, gave a single-bill for the amount, payable within twenty days' from date, with power to confess judgment. On the 4th August, 1851, both these debts were included in a judgment bond, and on the l8th August,. 1851, judgment was entered on the bond and execution issued. On the 7th of July, 1851, Hall gave Marsh and Freer a bond with power to confess judgment, for an indebtedness w'hieh arose [66] two years before, for goods purchased in New York. On this bond judgment was entered on the 16th of August, 1851, and .execution issued. By virtue of these two executions, the goods of Hall were seized and sold by the sheriff. The sale commenced on the 1st September, 1851. On that day, while the sheriff was actually selling the goods, Hall executed an assignment, for the benefit of creditors, to Hutchinson, the plaintiff. This assignment was not recorded until the 29th September, 1851, and the bond of the assignee was not approved until the 27th April, 1852. There was no evidence tending to show that the debts claimed by McClure, and Marsh and Freer, were not justly due, or that in obtaining their judgment bonds, or in afterwards entering judgment on them, they had any intention to evade the provisions of the Act of 1843, relative to assignments. It did not clearly appear that Hall, when he gave these judgment bonds respectively on the 7th July and 4th August, contemplated an assignment, or even knew that he was insolvent. But, conceding that he had such knowledge, and entertained, at the time, an intention to make an assignment, how is that to affect an honest creditor who had no knowledge of any such purpose, and had no participation in the intention to evade the Act of 1843 ? In Worman et al. v. Wolfersberger’s Executors (see 7 Harris 59), it was shown that, according to all the decisions upon statutes enacted to prevent frauds upon creditors, the party who obtained a security or a conveyance in good faith, was not affected unless he participated in the wrongful intent of the debtor in giving it; and it was declared that the doctrine in Summer’s Appeal, 4 Harris 169, was a departure from the principles which had usually governed the Courts in the construction of statutes similar to the proviso in the Act of 1849; and that there was something so revolting to the most ordinary sense of justice in depriving any one of a vested right, a lien for a just debt, without any fault of his own, that it ought not to be done, except in obedience to the plain and imperative mandate of a power not to be resisted.” Is there any such “plain and imperative mandate” in the Act of 1849 ? Far from it. Even the learned judge, who engrafted upon it the construction in question, admits, in his opinion, that the Act is “exceedingly obscure,” and that there is but “a glimmering” of such “intent” in it: 4 Harris 174. And the legislative and executive departments, so far from admitting the existence of any such intent, within less than a year after the decision was pronounced, repealed the proviso upon which it was founded, and thus extinguished the ignis fatuus which had led the judicial mind astray. Although this repeal cannot operate, retrospectively, upon rights which had previously vested, the judgment of the other [67] branches of government, in cases admitting of vubt, is certainly to be treated with respectful consideration. The decision in Summer’s Appeal was a departure from the great principle which requires that statutes in derogation of the common law shall receive a strict construction. It was pronounced in manifest forgetfulness of an uninterrupted current of authority upon the construction of similar clauses in statutes to prevent frauds upon creditors. It was an invasion, without legislative warrant, of the long-established right of the citizen, where he has not surrendered the dominion over his property to others, to conduct his affairs in his own way. It was a violation of a maxim of universal justice, which declares that no one shall suffer for another’s fault. Nemo punitur pro alieno delieto. Its tendency is to produce uncertainty and litigation; and its result, if adhered to, would be to throw into confusion the plain business transactions of a community whose commercial enterprises prosper most when left to their own activity, intelligence, and vigilance. In overruling it we correct a plain mistake; we affirm, as a principle not to be denied, that the judicial power is not authorized to make new and inconvenient innovations upon the rights of the people, or to alter the law of the land upon a mere “glimmering” of legislative intent; and we replace ourselves upon ancient foundations, in accordance with the true doctrine of stare decisis, and in obedience to the authoritative voice of the law. As the plaintiffs below failed to make out even a primá facie case, the defendants were entitled to a positive direction in their favor. It follows that the error in admitting the deposition of Hall, even if a bill of exception had been sealed, would furnish no ground for reversing the judgment. The judgment on the verdict and decree of distribution are affirmed.