Dowdel v. Hamm

The opinion of the Court was delivered by Rogers, J. This was an issue directed by the court of common pleas of Adams county, for the purpose of trying whether the defendant, who was the sheriff of York county, was liable to the plaintiff for the amount of a capias ad satisfaciendum put into his hands for [63] collection, at the suit of the plaintiff’s agent, Jacob Hamm. The capias ad satisfaciendum was executed by the deputy sheriff, who took a bond from the defendant in the execution, with condition to appear at Gettysburg, to give bail, to take the benefit of the insolvent law. The sheriff made a special return,that he had arrested the defendant, and afterwards discharged him out of custody, by the direction of Michael Miller, for whose use the writ was sued out.” It is in substance an action against the sheriff for a voluntary escape, on final process. It is clear, as the court instructed the jury, that when a capias ad satisfaciendum is put into the hands of the sheriff, who aríests the defendant, he cannot discharge him without the authority of the plaintiff; nor can he take bail for his appearance, without rendering himself liable for the debt. But on the other hand, if the plaintiff in the execution, or his agent, direct the writ to be executed in a particular way, and the sheriff obeys that direction, as he is bound to do, the sheriff would be relieved from, all responsibility. The loss, if any, would be the consequence of his own mistake, and would, as is just, fall on him, and not on the sheriff, who was but the innocent instrument of his will. These being admitted principles of law, the defendant took two grounds of defence, one of which only it will be necessary to examine. He contended, that on the 17th of February 1824, Peter Hamm, the plaintiff, executed a deed of assignment to Michael Miller and Peter Rider, embracing the money due from Jacob Hamm to him, and that by virtue of that deed of assignment, Michael Miller had a right to control the execution of the writ of capias ad satisfaciendum; that he did in fact control its execution, by being present with the deputy sheriff at the time the bond was taken, and by directing him what course he should pursue. If the facts were, as is stated, then it is plain that the plaintiff was not entitled to recover; and this leads to the inquiry, whether the court erred in restraining the assignment referred to. This, it must be observed, is an assignment for the benefit of creditors ; and as such, should receive a fair and liberal construction. It is a rule, that words of equivocal import should be taken most strongly against the grantor. The assignment begins: “ That whereas I, Peter Hamm, &c. have by sundry losses and misfortunes become unable to pay my just debts, and being willing to assign all my goods, chattels and effects, for the use of my creditors, do hereby grant,” &c. The grantor then specifies the following named goods and chattels, viz., “ two distilleries, with two stills, and all the apparatus, hogsheads, cooling tubs, thereunto belonging ; an iron apple mill, with the appurtenances ; four head of horses ; thirteen head of horned cattle; one sheep ; one wagon ; two beds, with bedsteads ; two ploughs ; two harrows; one winnowing mill; two tables; eight hogs; bonds and notes; together with all and singular my other farming utensils, household and kitchen furniture; goods, and chattels and effects, which I now own and possess ; excepting only thereout so much 'as is allowed unto insolvent debtors, under the insolvent laws of this state.” It [64] appears clear to me, that the grantor intended to convey all his personal property, of whatever description. He seems to be particular in expressing such.-intention by the general words used by him in the commencement of the assignment. And for fear the enumeration ■of the particular articles should control that intent, he is careful to guard against such effect, by inserting that he conveys, together with the same, “allnnd singular, the other farming utensils; household and kitchen furniture, and other articles of furniture; goods, chattels and effects which he owns and possesses except as is therein specially exempted. Nor does the latter clause of the assignment destroy this view of the case. It is said, that he directs his assignees to sell the goods and chattels, and apply the proceeds to the payment of executions, &c. And from this counsel infer, that as this demand or debt pould not be sold, it could not .be the intention of the parties to include it. This argument is rather specious than solid. It proves too much. Bonds and notes are certainly assigned, although these in strictness are not the subject of sale. The assignment is not skilfully drawn ; but enough appears, from which the meaning of the parties may be collected ; and this is all the law requires. The debt arose from the payment of a bond, in which Peter Hamm was the surety of Jacob Hamm ; a meritorious cause of action, in which the plaintiff could not fail to recover. It was a fund which the assigned might well intend to apply to the benefit of his creditors. It is unnecessary to say, whether equity would view this as a debt due on bond, and as such, included under the term bonds, which are expressly assigned. It will be in time to decide this point when the cause turns upon it. It may be sufficient tu observe, that although in equity a surety who has paid the debt of his principal is entitled to' stand in the place of the creditor, as to all securities for the debt held or acquired by the creditor, and to have the same benefit from them ; yet it is difficult to suppose, that by the. appellation of bonds, the debt in question passed to the assignees. We decide the case upon other parts of the deed. The clauses upon which the plaintiff in error mainly relies, are those in the commencement of the assignment, and the clause in the deed where the assignor, after enumerating particular articles, proceeds to convey other articles of furniture, goods and chattels and effects, which he owned and possessed. “Other articles” is as strong an expression of intention, as if the grantor had conveyed “all other articles ;” for if a man grant omnia bona et cattalla sua, all his goods and chattels, real and personal, pass. 2 Roll. Abr. 58, l. 17. So if he grant bona sua, without saying omnia. 2 Roll. 58, l. 17. • Sir William Blackstone, in his Commentaries, second book, page 383, appears to consider that the term chattels comprehends all personal property, except what is denominated real estate. It is expressly so in the Norman Code, where it is put in opposition to a heritage or fief, which, according to us, is a real estate. The consequence of which, as deduced by the learned commentator, is, that in both laws a [65] chattel is whatever comes under the appellation of personal estate. The word goods is nomen generalissimum, and when construed in the abstract, the’ term will embrace all the personal estate of the testator, as bonds, notes, money, plate, furniture, &c. And such is its effect by the canon law as well as the common Jaw, which seems to have adopted the former. 1 Atk. 180, 182 ; 3 Atk. 62; Moore v. Moore, 1 Bro. C. C. 123. Such is the effect of the word “ goods,” in all cases where the bequest is of “ goods” generally. And this proposition is only untrue where the testator, instead of bequeathing his goods generally, restricts the import of'the words by limiting its effect to those in a particular situation, as by specifically bequeathing all his goods in the house of A; in such, and,in the like instances corning within the same reason, since the goods given are connected with a subject in its nature showing the sense in which the term was used by the testator, there the term will be controlled and limited in its signification. 1 Roper on Legacies 189. The effect of the “ goods and chattels” is the same in a deed of assignment for the benefit of creditors, unless there is something in the instrument indicative of an intention to restrict the general import of the words. The intention of the parties governs as well in deeds as wills, unless where the import of the deed is restrained by well defined technical rules of construction. The term “goods and chattels”- includes choses in action, as well as those in possession. 12 Co. 1 ; 1 Atk. 182. The term “chattels” is more comprehensive than “goods,” and will include,animate as well as inanimate property; and so of the term “ effects;” for the term “ goods” will not embrace fixtures, but the word “ effects” may. 7 Taunt. 188; 4 J. B. Moore 73 ; 4 B. & A. 206. The term “ effects, both real and personal,” in a will, passes freehold estate, and all chattels, real and personal. 2 Chitty’s Black, in the note. Toller, in his Lavj of Executors, uses the term “ effects,” as including choses in action. In his third chapter he treats of the interest of the executors in the testator’s “ choses in action.” He speaks of the testator’s “ effects” which were not in his possession at the time of his death; and in this class he treats of choses, or things, in action. And we come to the same result if we adopt the popular signification of the term. It means such funds in the hands of the executor, as may be made effective or available for payment of debts or legacies. Judgment reversed and a venire de novo awarded.