Butler v. Mullen

Hoar, J. The defendants were summoned as trustees, and charged as such upon their default on the 13th of October 61 1866; and a judgment being entered against Holbrook, the principal defendant, on the 19th of the same October, execution issued on the 20th of the same month, and they paid over the amount due upon the execution, upon the demand of the officer who held it, on the 22d day of the same month. A warrant of insolvency issued against Holbrook, October 10,1866, the first publication was made on the next day, and the plaintiffs were appointed assignees of his estate on the 1st of November following. Upon these facts we think the defence to this action cannot be maintained. The payment by the defendants upon the judgment against them as trustees was a valid payment as against Holbrook, his executors and administrators. Gen. Sts. c. 142, § 37. But it had no validity against a party whose title inter - vened before the judgment against them was rendered, and 455 whose title was superior to the attachment by which the fund had been held. Not only does the assignment, when made, relate back to the first publication of the notice in insolvency, and vest all the property of the debtor in the assignee, but before the assignment the debtor is so far divested of his property, by virtue of the issuing of the warrant, that from the first publication no transfer or conveyance of it can be made which will have any validity against the assignee. Gen. Sts. c. 118, § 44. Clarke v. Minot, 4 Met. 346. Judd v. Ives, Ib. 401. Edwards v. Sumner, 4 Cush. 393. Gallup v. Robinson, 11 Gray, 20. By the assignment, the debt which the defendants owed to Holbrook on the 11th of October became due to the plaintiffs and vested in them as a chose in action on and after that day; and a subsequent payment to Holbrook or to any person other than the plaintiffs does not discharge the debt. The defendants cannot be allowed to show that they had no notice of the insolvency, as the publication of the notice of the issuing of the warrant is legal notice to all persons, by which they are bound. Clarke v. Ives, ubi supra. Edwards v. Sumner, ubi supra. Hall v. Whiston, 5 Allen, 126. 5 Bac. Ab. Trover, E. 12. Judgment for the plaintiffs.