Brown v. George Foster & Trustees

Shaw, C. J. The question is, whether the trustees are liable to be charged on their answers. It appears by the answers, that George Foster, the principal debtor, made an assignment to the trustees for the benefit of his creditors, purporting to be made conformably to St. 1836, c. 238, respecting the assignment' of the estate of insolvent debtors. Before the assignment was executed by the creditors, but after it was executed by the debtor and trustees, the plaintiff made his attachment. If, therefore, the assignment was not valid according to the statute, the title of the attaching creditor would have preference to that of the assignees. The attaching creditor seeks to avoid the assignment on two grounds ; first by the giving of a preference to a particular creditor, and that known to one of the assignees, or respecting which he was put upon inquiry, and might have ascertained the fact: Second, because the certificate of the oath of the debtor was not indorsed on the assignment. In regard to the first, we think the point is settled by the late case of Fairbanks v. Haynes, in this county. (23 Pick.) However such a preference may affect the right of the debtor to have his discharge, it does not avoid the assignment, unless it is given by the assignment itself, or by some instrument or act, so connected with the assignment, as to be deemed in law part of the same transaction. The other objection to the validity of the assignment, on the ground that it does not conform to the statute, requires more consideration. The statute provides, § 1, that debtors may as [155] sign, &c. and such assignment shall he valid against any attachment thereafter made, provided the debtor shall make oath, a certificate of which shall be indorsed on the instrument of assignment, &c. It was contended in support of the assignment, that although by this clause, the taking of the oath by the aebtor might be a condition precedent, without which the assignment by force of the statute would not take effect, yet that the provision in regard to the indorsement was merely directory, and not a condition ; and therefore if the oath was taken, the assignment was valid, although the direction to indorse the certificate of that fact on the assignment was not complied with. When a statute directs that an instrument shall be framed in a certain way and shall have a certain legal effect, it is often difficult to determine, whether a particular provision constitutes a condition or only a direction ; and in this case we have not found it necessary to decide that question. . It appears by the trustees’ answers, that at the time the assignment was made, the debtor took the oath required by the statute, before a magistrate of competent authority, who then and there wrote and signed a certificate, on a paper folded with the assignment, but not annexed to it by a thread or wafer, or otherwise. It was long since heldf even under a penal statute and in a capital case, that a writing, intended to operate as an indorsement, was an indorsement within the statute, whether written on the back or the face of the pa per. Rex v. Bigg, 1 Stra. 18. S. C. 3 P. W. 419. It appears by the trustees’ answers, and by inspection of the original papers, that the scrivener, who wrote the assignment, took two sheets of paper, of a particular size and quality, and folded them together, one within the other, in order, apparently, to have sufficient room for the assignment, the signatures, the certificate and schedules. The assignment, and signatures of the principal parties, not 'occupying the whole of the two first pages, did not extend to the second sheet; but the certificate was written on one of the pages of the second sheet. The two sheets, thus folded, were delivered together to the assignees, as the assignment ; have always been kept together as such ; and in a few days after the execution, when the schedule was completed and [156] annexed, the whole were stitched together, as one instrument. Further, the form and tenor of the certificate show that the two sheets were together, under the hand of the magistrate, when he made it. It is proved by the answer of the trustees, that the oath was in fact taken and certified, at the same time the assignment was made. The certificate states thus, after the date : “ Then personally appeared George Foster within named, and made oath that he has hereby conveyed all his property, &c. ac cording to the true intent and meaning of the statute,” &c. It appears, therefore, that they had the statute before them, and intended to comply with it, and that the parties considered the instrument as consisting of the two sheets; and the second referred to the first as constituting together one instrument. Under these circumstances, the court are of opinion, that without violating any principle, they may consider the assignment, as the parties considered it, as consisting of the two sheets of paper, thus folded together, and that the certificate was indorsed on the assignment, within the meaning of the statute. Any other construction wpuld seem to be adhering to the letter contrary to the spirit and effect of the statute. The object of the statute no doubt was, that the oath should be simultaneous with the assignment and go with it. Here that was done. Both were delivered together. It was thus put beyond the reach and the power of the debtor; it was binding upon him, and would have subjected him to the penalties of perjury, if it was false. Being received by the assignees as part of the assignment, it was their duty to preserve and produce it as such, and it would have been a breach of trust in them not to do it. This case is quite distinguishable from that of Montague v Smith, 13 Mass. 396. In that case, the awards were written on detached papers, not intended and not purporting to be indorsed on the leases, and therefore ,not conformable to the covenant. Trustees discharged.