author: Gardiner, J.

text:
    Danks vs. Quackenbush.
    ' The judgment of the Supreme Court in this case, determining that the act to extend the exemption of personal property from sale under execution, passed April 11, 1812, is unconstitutional and void as to debts contracted before its passage, affirmed.

    On error from the Supreme Court. Banks sued Quackenbush in the .Common Pleas of Onondaga County, in replevin for taking a horse and harness. The case was this:
    In January, 1837, one Fitch recovered judgment against Banks m the Supreme Court, in an action upon contract, for $83 85. In January, 1843, an alias fieri facias was issued on the judgment, and delivered to Quackenbush, who was a Beputy Sheriff,, and who took the property in question by virtue of the execution; and for that taking the suit was brought. On the trial Banks claimed that the property was exempt from execution by the act of 1842, which enacts that, “ in addition to the articles now exempt by law from distress for rent or levy and sale under execution, there shall be exempted from such distress and levy and sale, necessary household furniture, and working tools, and team owned by any person being a householder, or having a family for whom he provides, to the value of not exceeding one hundred and fifty dollars." {Laws of 1842, p. 193.) The necessary facts were shewn on the trial to bring the property in question within the exemption declared by this statute, provided the statute was to be so construed as to apply to debts contracted before its passage, and if such was the construction, then provided it was a constitutional and valid statute as to debts of that description. The defendant insisted that it did not apply to pre-existing contracts, and if it did, that it was so far unconstitutional and void. The Court charged the jury that the property was exempt, and the jury accordingly found a verdict for the plaintiff, on which judgment was rendered in his favor in the Common Pleas. Quackenbush having made a bill of exception embracing the above questions, ’ removed the judgment by writ' of error into the Supreme Court, where the the judgment was reversed upon the ground that the act in question was unconstitutional and void as to antecedent contracts. {¡See 1 Lerdo, 128, where the opinion of the Supreme Court is given at length.)
    A record of reversal being made up, Banks now brings error to this Court.

      A. Taber, for plaintiff in error.
    I. The statute in question makes no exception of executions for debts which had been previously contracted, and was evidently intended by the Legislature to apply to all executions levied after it went into effect. (Sackett vs. Andross 5 Hill. 334.)
    II. Before the Court will declare an Act of the Legislature unconstitutional, a case must be presented in which there is no rational doubt. (Dartmouth College vs. Woodward, 4 Wheaton's Rep., 625 ; Exparte, McCollum, 1 Cow. Rep. 550.)
    III. The statute in question is not a “Law impairing the obligation of contracts,” within the meaning of the Constitution of the United States. (Bronson vs. Kinzie, 1 Howard
      311; McCracken vs. Hayward, 2 Do. 608; Sturges vs. Crowningshield, 4 Wheat, 122.)

      Ceo. F. Comstock,■ for defendant in error.
    I. The Act of 1842, extending the exemption of property from execution, cannot, consistently with settled rules, be so construed and applied as to affect pre-existing contracts. (Gillmore vs. Shuter, 1 Freeman 466. S. C. 2 Mod. 310; Couch ys. Jeffries, 4 Burr. 2460; 6 Bac. Abr. 370 ; 2 Atk. 38; 1 Vesey, Sen. 225 ; 2 Ld. Raymond 1350; Osborn vs. Huger, 1 Bay Rep. 179; Ham. vs. Claws, ib. 93; Dash vs. Van Kleeck, 7 Johns 477; Saekett vs. Andross, 5 Hill 334, 7 aiid 362, 5.)
    II. The Act in question under a retrospective construction, is in violation of that provision of the Constitution of the United States which prohibits the State Legislatures from passing laws impairing the obligation of contracts and is therefore void. (Sturges vs. Crowningshield, 4 Wheat. 122; Green vs. Biddle, 8 do. 1; Mason vs. Haille, 12 do. 370, 318, 337 ; Bronson vs. Kinzie, 1 Howard 311; McCracken vs. Hayward, 2 do. 608 ; 1 Car. Law Repos. 385 ; 2 do. 428 ; 7 Monr. 11; do. 544; do. 588; 4 Litt. 34; do. 53; 5 Monr. 98.)
    After advisement, Jewett, Ch. J. and Bronson, Rtjggles and Gray, Js., were for affirming the judgment of the Supreme Court, upon the ground stated in the opinion of that Court.
   Gardiner, J.

(dissenting). The decision of the Supreme Court will be affirmed, (upon an equal division of the members of this Court) as I understand, upon the ground exclusively, that the exemption act of 1842, under a retrospective construction, is in violation of that provision of the Constitution of the United States, which prohibits the States from passing any law impairing the obligation of contracts.

■ The law in question is as follows: In addition to the articles now exempt, there shall be exempted from distress and levy and. sale, necéssary household furniture, and working tools, and team owned by any person being a householder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars; provided that such exemption shall not extend to any execution issued on any demand for the purchase money of such furniture, or tools, or team, or articles enumerated by law.”

The jury have found that the property levied upon was necessary for the support of the plaintiff’s family, and exempt from execution, if the statute is obligatory upon the defendant.

This is the only question I shall consider. The principle involved is both delicate and important. It has received the deliberate attention of the Supreme Court who have vindicated their judgment in an opinion of unusual ability; and it would seem to be required of those who cannot acquiesce in a decision which will be adopted by this Court, to state the grounds of their dissent.

According to the decisions of the Supreme Court of the United States, the several States may impair the obligation of contracts, First, by laws which annul, modify, or alter the contract itself. (Story Comm. § 1379 Ogden vs. Saunders 12 Wheat. 284; 4 Wheat. 197-8.) Secondly, by those which change the effect given by the existing law to the terms of the contract, which by some Judges is denominated the law of the contract. (Story Comm, §1378 page 249; 4 Wheat. 341-2 ; 1st Howard 375 ; 1 Howard 319.) An example of this kind will be found in Kinzie vs. Bronson, and would be furnished in this State, by a mortgage of real property, which should contain only a description of the premises, the sum secured, time of payment, and names of the parties; It is obvious that in the instance supposed the right and interest of the mortgagor and mortgagee in the premises, would have to be gathered from the existing law, in reference to which this contract was made, and which in these respects, it would tacitly adopt. Bills of exchange, furnish another example. Although the day of payment may be fixed by the instrument, the payee is entitled to the days of grace allowed, becomes the law of the contract. rhich thus

The law of the contract, must not be confounded 'with the remedy to enforce it. 'The first, says Judge Washington in Ogden vs. Saunders, “ remains the same every where and will “ be the same in every tribunal. But the remedy necessarily “varies ; and with it the effect of the constitutional pledge, “which can only have relation to the laws of each State “ severally.”

Indeed, the distinction betweeen the contract, and the law of the contract is rather formal .than substantial. • The first, according to the spirit of the authorities, applies "where the parties have defined their obligations and duties in express terms. The second, to those cases where the agreement is incomplete, and frequently unintelligible in these respects without the aid of the law, which in the language of Judge Story, “performs the office only of expressing what is tacitly admitted by the parties to be a part of their intention.” (Story Com. Chap. 34, § 1378,)

In the third place, the obligation of a contract may be impaired by a law “ denying a remedy altogether, or may be “ seriously impaired by burdening the proceedings with new “ conditions and restrictions, so as to make the remedy hardly “ worth pursuing.” This is somewhat indefinite; but it is the language of Chief Justice Taney, and as precise probably as the nature of the subject will permit.

These are the only modes in which, the obligations of a contract can be assailed by State legislation. The law must act upon the contract, or upon the remedy.

There is, however, a broad and well defined distinction, between the authority of the State in the two cases. A State can pass no law the effect of which will be to vary the contract. Ho benefit to the people, no supposed advantage to the parties will authorize it. The manner and degree in which the change is effected, can in no respect influence the conclusion. (Story Com. 3 Vol. §1379.) The power iswanting, for the prohibition of the constitution is absolute and universal.

It is just as firmly settled by authority, that the states retain their power over the remedy; they may change or modify that at pleasure. “No one,” says Judge Story, “will doubt “ that the Legislature, may vary the nature and extent of reme- “ dies, so always that some substantial remedy exists.” (Story Com. §1379.) In Kinzie vs. Bronson, (3 Howard 315,) the Court remark, “that undoubtedly a State may regulate at “pleasure the mode of proceeding in its Courts, in relation to “ past contracts as well as future. And although a new reme- “ dy may be deemed less convenient, and render the recovery “ of debts more tardy and difficult, yet it does not follow that “ the law is unconstitutional. Whatever belongs to the reme- “ dy may be altered according to the will of the State, pro- “ vided the alteration does not impair the obligation of the “ contract.” Arid what the legislation must be to procure this result, he has told us in the language I have already quoted.

In McCracken vs. Hayward, Judge Baldwin remarks, that it must not be understood by that or any other decision of the Court, that all State legislation upon existing contracts is repugnant to the constitution. And he instances the recording acts, by which an elder is postponed to a younger grantee, the statute of limitations, and he might have added, the laws abolishing imprisonment for debt, a remedy coeval with, and the most stringent known to, the common law. Sufficient has been said upon this distinction between the contract and the remedy, a distinction which, according to Judge Marshall, (Sturges vs. Crowningshield, 4 Wheat. 200,) exists in the nature of things, and is recognized in every decision in the. United States Courts upon this clause in the constitution.

In the light of these principles, I proceed to examine -the law of the State of New York.

And in the first place, it is not repugnant to the constitution because it changes or acts upon the- contract between the parties ; or the law of the contract. It does not interfere with the terms of their agreement, whatever they might be. or the effect which the law existing at the time when it was made gave to them.

Indeed, a- conclusive answer to any such pretence is, that we know nothing of the terms of this contract. The record states that the judgment was rendered upon a contract. Of its provisions, whether it was made here, or in a foreign country, we have no information whatever.

We know indeed that the judgment record was before the Court; that the Judge was required to charge that the law was unconstitutional,, and refused. We might perhaps indulge a presumption in order to sustain the decision, we cannot infer any fact not stated, in order to reverse it.

I assume it therefore as unquestionable, that if the law of this State is obnoxious to the constitutional objection, it is because it impairs the obligation of the contract by striking at the remedy. “ That it presents a case within the undoubted “ power of State legislation, but that its provisions are so un- “ reasonable as to amount to the denial of a right,-and to call “ for the interposition of the Court.” (Baldwin J. 2 Howard 613.) So that we can say with C. J. Taney, (1 Howard 317) that “ it has burdened the remedy with new conditions and restrictions, so as to render it hardly worth pursuing.” Or with Justice Story, “ that it leaves to creditors no substantial remedy whatever.” In short the enquiry is not as to the existence, but the abuse of legislative power.

If this view of the question is correct, it is believed that the decision of the Supreme Court ought not to be sustained. Ho reliance is placed by that Court upon the fact that the plaintiff’s judgment was recovered prior to the Law of 1842. Hor is the circumstance of any importance; since it has always been held, that the obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself: operates anterior to the time of performance. (Story Com. §1379.) “The remedy, however,” says the game author, “ acts upon the broken contract, and enforces a pre-existing obligation.” (12 Wheat. 349-50.)

The judgment of' the- Supreme Court is placed upon the broad ground, that “such property as was subject to execution when the debt was contracted, must remain subject to the execution until the debt is paid.

This decision therefore, as to the past contracts in fact annihilates the distinction between the contract and the remedy, and. applies to the latter the stringent rules w'hich the United States Courts have confined to the former. By this law, one hundred and fifty dollars of property under certain circumstances, is withdrawn from execution, but if 'the family bible had been for the first time exempted, the decision would have- been the same. Ko degrees are tolerated. The question is not whether the power of the State has been discreetly exercised. The authority to legislate at all is denied, and in truth the decision must be sustained upon this ground.

It is believed that no Court would assume the responsibility of declaring, that in a community where almost every householder sustains the double relation of debtor and creditor, a statute which should withdraw from the mass of six or seven hundred millions of property, the amount limited by this law, for the purposes therein specified, was either impolitic or unjust towards creditors as a class, their interest being alone regarded. An individual deriving any benefit from this law would generally be indebted to more than one creditor. And if the question was submitted to them collectively, whether one of their number should be paid, by a sale of the implements by means of which the debtor was enabled to support himself and family, dr whether they should' all rely upon his future earnings for the satisfaction of their debts, they, as reasonable men, would' be likely to determine it in the spirit of this law. Regulations of this description, says C. J. Taney, have always been considered in every civilized community as properly belonging to the remedy, to be exercised or not by every sovereignty according to its own views of policy and humanity.

It seems to have been overlooked, that this law in its retrospective operation affects the interest of debtors as well as creditors ; and is in fact a modified repeal of all the former exemption acts. And according to the decision of the Supreme Court in - Mathewson vs. Weller, (3 Denio 52.) all the property of the debtor, is now liable to be sold upon an execution, upon a judgment for the purchase money of any article exempted by former laws, as well as the statute in question.

According to this decision, it "would be difficult to determine whether in. 1842 the amount of property absolutely withdrawn from execution was increased or diminished.

It may be the decisions in Mathewson vs. Weller, and in the present case are consistent with each other. But it seems to me, that unless these constructive obligations are implied only in behalf of the creditor, and-if the principle be sound, that property not exempt at the making of the contract, must remain liable until it is satisfied, the converse of the proposition, that property then exempt should remain so would also be true.

It is obvious that the effect of the two' decisions is, to strip the debtor of an old privilege, in place of conferring a new one upon him.

I have abstained from adverting to the higher considerations which may be presumed to have had their influence with the Legislature in procuring the enactment of the statute.

The interest for example, which every well regulated State has in the maintainanee of' the family; in the education of those who are to succeed to the rights' and duties of citizens ; and in preserving the means for maintaining the decencies of life, which are so intimately associated with the moral and religious culture of a people. Such motives it is granted cannot confer authority, however important in determining its fair and legitimate exercise. But looking to the effect of this law upon creditors, enlarging their privileges in some respects and restricting them in others, leaving as it does unimpaired all existing remedies in their favor, many of which are in addition to those of the common law, and far more searching and efficacious, and it cannot be said that it leaves to them no substantial remedy. Still less in the language of C. J. Taney, are the restrictions of such a character as to make tíre remedy hardly worth pursuing.

I allude of course to the effect of the law as a whole, not to its- operation in especial cases. It is said that in this ease it saves all to the debtor, and it might have been added, that it is equally obvious that the debtor acquired all that was saved, after the return of the first execution upon this judgment, and for ought we know, of a vendor who may have parted with his property upon the security afforded by the act. 'These creditors may not gain, but they certainly lose nothing by the law. But if it were otherwise, it would make no difference. Every,law acting upon the remedy will be productive of some evil. The objection is not so much to this law, as to any legislation whatever. •

The Supreme Court, as I understand them, do not deny that this act relates to the remedy, but that the remedy is one over which the State has no power in reference to past contracts. We are told “ that there is no well defined middle ground, between holding that none, or admitting that all a debtor’s property may by a subsequent law be exempt from execution.”

This argument proves too much, for it applies to all retrospective legislation which may-by possibility operate upon the contract through the remedy. The instance of a law regulating the practice of the Courts is not an exception. Such a law, may direct all actions upon contract to be commenced by capias to be returned within sixty days after the time of service, or any shorter period, and be valid ; but if it prescribed ten years it would be held unconstitutional. But in either case, the law would be obnoxious to the objection, that if a State could prescribe sixty days, it might ten years or a longer period, and thus impair the obligation of the contract through the remedy. There is no well defined middle ground in either case. The same may be said of statutes of limitations, recording acts, acts abolishing impoisonment for debt, and those giving time to executors, &c., before suit. The answer to all such objections is to be found in the established distinction, between the power of the states over the contract, and over the remedy, between the exercise of a power denied to them by the constitution, and the wrongful exercise of one which they unquestionably possess. The States may legislate upon all remedies ; they must do it, for they have the exclusive power so far as they relate to their own Courts, but they may not abuse that power, in reference to any remedy, so far as to destroy the beneficial effects of the contract. They may therefore exempt the bed of the debtor, but it does not follow that they may a farm worth $20,000. The first would be a fair exercise of authority, the last an abuse of it. If between these extremes, there is no well defined middle ground, it is because our National Court has claimed the right to supervise State legislation upon the subject, not merely by entertaining the question, whether any remedy was afforded, but whether a substantial one was provided for the creditor* What is their right and duty is ours, and that of every other Court from the lowest to the highest.

We must enter this terra incognita, explore it by the aid of those lights which experience and the knowledge of the state of society among us will afford, and determine for ourselves primarily, whether the particular law transcends the limits of fair legislation, and is in effect, whatever may have been the motives of its framers, a fraud upon the constitution. We ought not to purchase judicial certainty, by an unqualified surrender of State power.

It is however insisted, that the question is virtually decided by the cases of Bronson vs. Kinzie, (1 How. 311,) and McCracken vs. Hayward, (2 Id. 608.) The first was the case of a mortgage executed by Kinzie to Bronson, in which among other things, the former covenants, that if default should be made in the payment of the principal sum and interest secured, it should be lawful for Bronson to enter upon and sell the mortgaged premises at auction, and as attorney for Kinzie convey the same to a purchaser, and out of the monies retain the amount due him, &c. Subsequent to the execution of the mortgage, the State of Illinois passed a law, in substance providing, that the mortgaged, premises should not be sold except at a sum equal to two thirds of their appraised value, and when sold, that the mortgagor should have twelve months within which to redeem ; and in his default, his judgment creditors might redeem in three months thereafter. The law was held to be. unconstitutional,. upon the ground that it deprived the mortgagee of the right to sell the whole premises, which was given by the express terms of the mortgage, and second, because it created after sale, a new estate to his prejudice in •favor of the mortgagor and judgment creditors. There was therefore a double violation of the contract itself. The case has therefore no application to the present; and as if for the purpose of excluding any such inference, the Chief Justice in his opinion remarks : “ That if that law had done nothing more than change the remedy upon contracts of that description, it would'have been liable to no constitutional objection. For undoubtedly, a State may regulate at pleasure the mode» of proceeding in its Courts, in reference to past as well as future contracts.” He then instances the statute of limitations, and adds : “that it (a State) may if it thinks proper, direct that the necessary implements of agriculture, the tools of a mechanic, and-articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments.”

We could almost imagine that the learned judge had our statute before him, while preparing his opinion.

The case of McCracken vs. Hayward, arose under the same law which was passed in February, 1841, and under a section, “ that when any execution should be levied on real or personal property, or both, the property should be valued according to its cash value, by three householders on oath, one to be chosen by each of the parties, the other by the Sheriff, who must agree in their valuation, which was to be endorsed on the execution: and when such property should be offered for sale, if capable of division, no greater quantity should be offered, or sold, than would be sufficient to pay the amount of the execution, at twó-thirds of the valuation thereof, reserv ing to the defendant, in all cases, the amount and quantity of property then exempt from execution by the laws of the State.”

The property of the defendant was offered for sale, by the marshall, but was not sold, as no one bid two-thirds of its value. The plaintiff sued out a new execution, and applied to the Court for an order to sell, regardless of the State law.

The question of the constitutionality of the law did not necessarily arise, as the Circuit Court had not adopted the law of Illinois, which was necessary in order to effect-process of execution from that Court. The plaintiff was therefore entitled to the order asked for, and a sale under the former law, which was the law of the Court. But the question was raised, and as I infer, decided that the law was unconstitutional. I acquiesce in that decision. It remains to be seen whether it controls the present case.

In the first place, the act was in effect wholly retrospective; it was passed on the 27th of February, 1841, and applied only to judgments rendered, or judgments that might be rendered, on any contract or cause of action arising prior to the first of May in the same year. Its future operation was limited to two months, and the old law afforded the remedy as to all contracts made after that period.

In the second place, as we have seen, it applied to a far-. ticular class of contracts and creditors. The act upon its face, therefore, furnished the strongest evidence, that it wag adopted as a mere stbp law, intended to answer a temporary purpose, and was not, in the estimation of the Legislature who enacted it, in the language of the Court, in Ogden vs. Saunders, “a full, fair, and candid exercise of State power, to the ends of justice, according tó its ordinary administration.” The judgment of the plaintiff was obtained in 1840. In August, 1842, when his execution was levied, there w'as one remedy for him, and a more favorable one for a citizen, who contracted with the same debtor, subsequent to May, 1841, and this in reference to the same property.

Nor was this all. The property must be appraised at two-thirds its value, by all the appraisers, of which the debtor selected one. Of course his valuation must be adopted or none. •

But supposing him not to incline in favor of his neighbor, and the property honestly appraised at two-thirds of what would be deemed its value, if taken upon a cash debt. Who that knows any thing of forced sales of property, can suppose that, as a general rule, it would command -two-thirds of the real value. If the debt is considerable,'the number who have money, in an agricultural community especially, are very few, and in all cases the sale is made without reference to the wants of the purchaser. The sales of securities under the banking law of this State, have not averaged seventy per cent, of their nominal value, and yet the mortgages are secured on lands valued by sworn appraisers at double the amount secured- by the mortgage, in addition to the personal security of the mortgagor. What is true with us, would be.so in a State possessing far less capital.

The plaintiff’s execution, in the case cited, was returned unsatisfied, because no one would bid to the valuation. It would be very extraordinary if it had been otherwise. A different result, under such a law, would have been an exception to a rule nearly universal. It furnishes, in fact, an effectual shield to the whole of the debtor’s property. In a word, whether we consider the extraordinary provisions of the law, or its inevitable practical operation, as tested by all experience, it must be condemned as a gross and flagrant abuse of legislative power.

If the law of 1842 is obnoxious to the same objection, let it receive the same condemnation.

But it is incumbent upon those who hold the affirmative, to establish that the statute of Illinois, Avhich legalized all prior exemption acts, and then withdrew the residue of the debtor’s property, including his future acquisitions from executions, Avhich Avas limited mostly to past contracts, and merely suspended the law existing at its passage, for two months after that period, compelling creditors to pursue, distinct and unequal remedies, according to the date of their contracts, is identical in principle with the law of this State, which deprives the debtor of privileges secured by former laws, and then (when fully paid for) exempts household furniture, tools, &c., of those having families to support, to a limited amount, if adjudged to be necessary by a competent tribunal, which subjects the future earnings of the debtor to the claims of creditors, and compels him, by summary' process provided by another law, to apply them in discharge of those claims, and which, above all, instead of being partial and temporary in its operation, was adopted as the settled and permanent policy of a great commercial State, in reference to all contracts, and all persons without distinction.

Until this is done, we may avail ourselves of the rule declared by one of the ablest Judges that ever had a seat in the Court of the United States, that the positive authority of a decision is co-extensive only with the facts upon which it is made.” (12 Wheat. 333.)

Jones, Johnson, and Wright, Js., concurred with Gardiner, J.

Judgment affirmed.


source: Caselaw Access Project

author: WRIGHT, J. Bronson, J.

license: Public Domain

text:
    Spear and Ripley, Appellants, vs. Charles Wardell and others, Respondents.
    The assignment which a debtor proceeded against under the non-imprisonment act, executes pursuant to the provisions of that act, (Stat. 1831, § 16,17) is for the benefit of the creditor who institutes the proceeding, and not of the creditors generally.
    And a voluntary assignment, executed by such debtor, while the proceeding is pending against him, of all his property for the benefit of all his creditors without preference, is a fraud upon the act and the rights of the prosecuting creditor.
    Where a judgment creditor instituted a regular and valid proceeding under the lion-imprisonment act, and the debtor, while the proceeding was pending, executed a voluntary assignment of all his property for the benefit of his creditors generally without preference, so that no property passed into the hands of the statutory assigne.e under the statutory assignment subsequently made; held, upon a bill filed by the creditor against the debtor and the voluntary assignee, that the voluntary assignment should be allowed to stand, but the assignee should be decreed to hold the property assigned, as a trustee for such creditor to the extent of his demand.

      Held also, that the title to the property having passed to the voluntary assignee, the statutory assignee had no interest, which made it necessary to join him as a party to the bill.
    Appeal from the Court of Chancery. This case was brought to hearing, before the Chancellor, upon the bill filed by the appellants, and the joint and several answers of the respondents. The material facts were these: The appellants, on the 2d November, 1846, recovered judgment in the Supreme Court against Charles Wardell and Charles E. Wardell, two of the defendants, for $1,376,97 upon contract. The said Charles Wardell and Charles E. Wardell were partners in trade, and the judgment was for a partnership demand. On the 5th of November they were possessed of notes and accounts to an amount more than sufficient to pay the judgment, and on that day they were requested to apply some of such notes and accounts to that purpose. This they refused to do upon the ground (and so were the facts,) that they were insolvent to a large amount, that a committee of their creditors had recommended that the creditors accept, as a compromise of their claims, a per centage upon the amount due them, and in case they did not all agree to do so, then that they intended in good faith to assign all their property to pay their debts without preference.
    After this refusal, and on the same day, the complainants procured, from Edmonds, Circuit Judge, a warrant against the said Charles Wardell and Charles E. Wardell, and had them arrested pursuant to the 4th section of the act to abolish imprisonment for debt and to punish fraudulent debtors. (Laws of 1881, p. 396.) After their arrest, but before the. decision of the officer, to wit: on the 21st day of November, 1846, they made a voluntary assignment of all their estate, real and personal, to Henry B. Wardell, the other defendant. On the 28th of November, the Circuit Judge decided that the allegations of the complainants were substantiated, and that the said Charles Wardell and Charles E. Wardell had unjustly refused to apply their choses in action to the payment of the judgment. A commitment was accordingly ordered pursuant to the 9th section of the act; to prevent which, they severally made and delivered to the officer an inventory of their respective estates, and an account of their creditors, pursuant to the 3d subdivision of the 10th section of the act. These inventories contained none of the choses in action which had belonged to them as partners, nor any other partnership effects. Such further proceedings were had, that an assignment was directed by the officer pursuant to the 16th section, which they accordingly made to Stephen _P. Nash, who was appointed assignee by the officer. On the 22d of December, 1846, they were discharged, according to the 17th section. No property passed into the hands of the assignee so appointed, except §30 in money, the residue of their effects, except such as were by law exempt from execution, having previously passed into the hands of Henry B. Wardell, under the voluntary assignment to him above 'mentioned. The complainants opposed the discharge of tha> debtors, on the ground that their proceedings were not just and fair, insisting that the said voluntary assignment was a fraud upon the act. But the objection was overruled by the Circuit Judge.
    After these proceedings were closed, the .complainants applied to Henry B. Wardell, the voluntary assignee, to have their judgment paid, in preference to other creditors, out of the notes and accounts which went into his hands under the assignment to him. He refused to make such payment, or to give any preference over other creditors. The bill insisted, that by the proceedings under the act aforesaid, the complainants had acquired a lien upon, or right to priority of payment out of the choses ip action of the said Charles Wardell and Charles E. Wardell, that such lien or right attached as of the time they were arrested, that the voluntary assignment made to Henry B. Wardell was a fraud upon the act, and therefore void; or if not so, that he took the choses in action assigned to him subject to such lien or right. The answer-controverted these positions. The prayer of the bill was, that the assignment to Henry B. Wardell might be set aside ás a fraud upon the act and upon the rights which the complainants had acquired by their proceedings; or, if allowed to stand, that the complainants might be paid the amount of their judgment out of the choses in action so assigned, or the proceeds thereof, in preference to other creditors, and for an injunction, receiver, &c.
    The Chancellor made a decree dismissing the bill with costs.

      S. P. Nash, for appellants.
    1. The. creditor who has obtained the commitment of a debtor, under the non-imprisonment act, is entitled to a preference over creditors at large in the distribution of the debtor’s property under the act. (People vs. Abel, 3 Hill 109; Berthelon vs. Betts, 4 Hill 577; Moak vs. De Forest, 5 Hill 605; practical directions under the non-imp. act, (pamph.) p. 15.) 2. It follows that any voluntary disposition by the debtor, pending the proceedings, in order to defeat such preference, is a fraud upon the statute, and a Court of Equity has jurisdiction to protect the creditor’s rights, and sot aside the fraudulent act. 3. This jurisdiction can only be exercised on behalf of the creditor whose priority has been overreached. He is therefore the proper party complainant. 4. The decree of the Chancellor should be reversed, and the defendant, Henry B. Wardeil, be directed to pay the complainant’s judgment with interest and costs.
    <7. S. Bosworth, for respondents.
   WRIGHT, J.

The important question in this case is, whether a voluntary assignment of property for the benefit of creditors generally, made by a defendant after his arrest and during the pendency of proceedings under the act “to abolish imprisonment for debt and to punish fraudulent debtors” is a fraud upon such act, and upon the rights of the prosecuting creditor thereunder. An examination of the objects and aims of the statute of 1831, arid its peculiar, and, generally admitted, quite imperfect provisions, is involved in the inquiry.

Its professed objects are, to abolish imprisonment for debt and to punish fraudulent debtors. But it goes further ; aiming to provide to the prosecuting creditor of such fraudulent debtor a remedy for enforcing the payment of his demand. Whilst as a civil remedy (and only as such I shall consider it) it takes from a certain class of creditors the power of coercing from all debtors satisfaction of their demands by imprisonment, it gives, with a single exception, to the creditors of such class, who may prosecute, and who shall pursue its provisions, as against a fraudulent debtor, a new remedy, which, in its operation, continues the power of coercion by imprisonment in a severer form, unless the debt shall be paid, or all the debtor’s property, legal and equitable, be set apart, in the form prescribed, for its payment. In the exception alluded to, where the particular fraudulent design established against the debtor is, that he is about to remove any of his property out of the jurisdiction of the Court in which the suit of the prosecuting creditor is brought, it continues such coercion by imprisonment, unless the debtor shall, in effect, indemnify the, ' creditor against the commission (until the demand of the prosecuting creditor, with costs, shall be satisfied, or until the expiration of three months after a final judgment shall be rendered in the suit brought" for the recovery of such demand) of certain fraudulent acts, tending to impair or destroy the creditor’s remedy against the property held by the debtor at the date of such indemnity. The new remedy is not given to all who may have demands against the debtor arising upon contract, but only to those who shall have commenced a suit against 'the debtor, or shall have obtained a judgment or decree against him in a Court of Record; and considering that a loading purpose of the act was to abolish imprisonment on demands ex contractu, there was a fitness and propriety in confining the new remedy to the two classes enumerated, for they were the only persons who could arrest and imprison on the demand itself, or could bo immediately affected by the abolition of the old remedy. As against the honest debtor the act absolutely abolishes imprisonment; but against the dishonest one, it provides that imprisonment, as a remedy or means of coercion shall still exist; to be avoided by the payment of the debt or demand by the debtor, or by his giving satisfactory security for its payment, or by justly and fairly setting apart -his property, legal and equitable, for that purpose; and in one class of frauds, by indemnifying the prosecuting creditor against the commission of certain fraudulent acts, whilst such creditor is prosecuting his demands against him to judgment, and until three months afterwards. Imprisonment is to follow the fraudulent debtor’s conviction, unless in the mode prescribed, the demand of the prosecuting creditor shall be paid, or payment secured, or the debtor’s "property delivered up to satisfy such demand ; or the debtor indemnify the prosecuting creditor against a fraudulent disposition, within a specified period, of the property he may then have. And if such debtor be committed to prison, he shall remain in custody iq the same manner as prisoners on criminal process, “ until a final judgment shall have been rendered in his favor in the suit prosecuted by the creditor,- at whose instance such debtor shall have been committed, or until he shall have assigned his property and obtained his discharge,” but he may be discharge 1 at once, without assignment» of his property, by payment of the debt or demand, or giving security for the payment thereof. As against a fraudulent debtor, the provisions of the act, are, in the language of Justice Cowen in the case of Berthelon vs. Betts (4 Hill 577), in effect, a statute execution against choses in action and other effects not tangible by the ordinary fi. fa.. The statute gives the creditor or creditors certain process by which he or they may coerce the payment of a debt or debts for which.the debtor has been prosecuted.”

After a careful examination of its provisions, this is the construction that I place upon the objects and intent of the act as a civil remedy. For if the object be not to coerce from the fraudulent debtor the payment -of the debt or demand of the creditor or creditors who are permitted to institute proceedings, but, as is contended, only an assignment of the debtor’s property for the benefit of creditors at large, then is it worthless "as a remedial statute, and the aim of the legislature in providing a punishment for fraud, or a severer remedy to coerce the payment of demands ex contractu against a fraudulent debtor, is entirely frustrated; for what creditor with the object only in view of coercing an assignment of an insolvent or fraudulent debtor’s estate, which should enure to the benefit of all creditors, would institute.proceedings under the'act.? In construing remedial statutes, Courts should endeavor, in consistency with established rules of construction, to impart to them the force and efficacy contemplated by the Legislature.

I propose briefly to examine in detail those sections of the act having a bearing on the question involved in this case. Such examination, unless I am clearly mistaken, will serve to fortify the views I.have taken of the act as a civil remedy. The third section points out. only twd classes of persons that may institute proceedings; and they, as has been remarked,' are the only ones immediately affected by the operation of .the first section. Unless a creditor falls within one or the other of these classes, he cannot institute a prosecution. There is no provision for the coming in of other creditors under the proceedings instituted by either elass, nor a joinder of several creditors of the specified classes. At the outset the proceeding is an individual one, contemplating an individual benefit, and looking ultimately to the furtherance of two ends, viz: punishment of fraud, and individual interest. The warrant issues to arrest the defendant in the suit which the prosecuting creditor has commenced against him in a Court of Record, or in which he has obtained a judgment or decree; this peculiar statutory arrest being given, in such suit, against a fraudulent debtor, in lieu of tiie remedy taken away of arrest in the one case on mesne, and in the other on final process.

The causes" specified in the fourth section for granting the warrant to arrest the debtors, are such as may apply to individual creditors, but some of them such as would not ordinarily apply to all creditors. Indeed, those specified in the first and fourth subdivisions of the section, have no application to any other creditor than the one prosecuting, nor any relation to any other suit than the one in which such creditor is prosecuting the debt or demand due to him from the defendant, or in which he has obtained a judgment or decree. Consequently, if the construction of the act be correct that the prosecuting creditor obtaines no preference, but that the assignment which follows is for the benefit of the creditors at large, the anomaly is presented of a result flowing from a cause with which it has no possible connection, and without which, the officer granting the warrant would have no jurisdiction to entertain the proceeding, or order the assignment. So, also, it seems to me very apparent that the causes specified in the second subdivision of the section have no application to creditors generally. The causes are, “ that the defendant has property or rights in action which he fraudulently conceals, (that is, the defendant-in the judgment or decree of the prosecuting creditor) or that he has rights in action, or some interest in any public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of any judgment or decree which shall have'been rendered against him, belonging to the complainant.’’ The subdivision applies exclusively to a case wherein the prosecuting creditor has obtained a judgment or. decree against his debtor, and he has “ property or rights in action which he fraudulently conceals,” or on application by such creditor, such debtor unjustly refuses to apply his equitable assets to the payment of such judgment or decree. There must, therefore, be an unjust refusal, on the part of the debtor to apply his property that an ordinary fi- fa, cannot reach, to the payment of the judgment %r decree of the prosecuting creditor ; without which, for wan of jurisdiction in the officer the proceeding would be void. Ic contemplates a charge that none but the prosecuting creditor, either at the initiation of the proceeding-, or at any other time, can make, and has reference to the payment of his debt, and no other. If, by substantiating the charge, and arresting the debtor and thus compelling- an assignment of his property, the prosecuting creditor acquires no right of priority under such assignment, or no right attaches in his favor on the debtor’s property^ but the same is to be distributed pro rata amongst his creditors, it seems to be a Very absurd mode of accomplishing the result. ,

The remaining sections aim especially at securing the rights of the prosecuting creditor. By the seventh section the debtor may controvert any of the facts and circumstances on which the prosecuting creditor’s warrant issued. The latter alone may examine the defendant touching facts material to the inquiry ; the debtor and such creditor are the only parties that may offer proofs; and if the debtor obtains an adjournment of the proceedings, the «bond shall be given to such creditor, and its penalty shall be in double the amount of the debt that he claims. The proceedings prescribed in the tenth section for averting a commitment, respect only the prosecuting creditor, and his debt or demand. If such debt or demand, with costs, be paid by the debtor, or security be given for such payment within sixty days, no commitment is to be granted, and the proceedings are at an end. No. other creditor can continue them-for his own benefit, or with the view of coercing an assignment. The debt or demand claimed in the pending suit, or by the judgment of the prosecuting creditor, being paid, the operation of the new remedy, in lieu of the old one of imprisonment, consequently ceases. So, also, the bonds prescribed by such section are to be given to the prosecuting creditor, and in penalties twice the amount of Ms debt, showing that the entire section has relation to the satisfaction or security of his interests alone. By the eleventh section, the debtor being committed, to prison, can only be discharged by the performance of acts, or the happening of a contingency, having relation exclusively to his connection with, or a right gained by the prosecuting creditor. Such debtor is to be discharged in case final judgment shall be rendered in his favor in the suit of the prosecuting creditor, as he would have been if imprisoned under the. abolished remedy on mesne process. So also if he pays the debt or demand of the prosecuting creditor, or gives security for its payment, or executes to him cither of the bonds mentioned in the tenth section, or justly and fairly assigns all his property by which payment of the prosecuting creditor’s debt may be secured or enforced.

By the fourteenth section the prosecuting creditor is the only person who is to have notice of the time and place of the debtor’s presenting a petition for an assignment of his' property, and for" a discharge, and on whom copies of such petition,, and the account and inventory thereto annexed, are to be served. By the twenty-fourth section, whenever a bond to" avert a commitment, "given under the tenth section, shall become forfeited by the non-performance of the condition thereof, it may be sued by the proseauting creditor only, and he may recover on it the amount of his claim; and there is no provision for the recovery on such bond of the claims of other creditors. By the act, as amended in 1845, the debtor, instead of assigning his property, may be discharged from imprisonment upon his putting in and perfecting special bail in any suit which shall have been commenced against him by the prosecuting creditor, whether a judgment or decree shall have been obtained thereon or not; and having thus put in and perfected bail, and obtained his discharge, he may be imprisoncd upon any execution issued against his body, in such suit in the same manner,, as though the act of 1831 had not been passed.

Thus is kept constantly in view a right attaching to or acquired by the creditor who initiates the proceeding and pursues the debtor. The provisions of the act, step by step, aim at the satisfaction of his debt or demand. He alone is to have notice of the various steps the debtor may take to avert commitment, or in obtaining his discharge; and he alone is to be charged with the costs and expenses which the debtor shall have incurred in the event of a-dismissal of the complaint.

But it is insisted, that, notwithstanding the debtor be arrested in the suit of the prosecuting creditor only, that up to the conviction, no person but such creditor can take any part in the proceedings, and that all the means pointed out by the act for the debtor to avert commitment, enure exclusively to the benefit of such creditor; yet, that when the debtor shall be discharged by petition and assignment, such assignment shall be for the benefit of all his creditors rateably. This construction is certainly in opposition to the general tenor of the act. Without the clearest light, therefore, to be drawn from its provisions relating to the petition and assignment, I should hesitate long to adopt a construction that would totally destroy its efficacy as a remedial statute, and leave men to make fraudulent dispositions of their property, and to contract debts without the least means of coercing their payment. I see nothing, however, in those sections, relating to the petition, assignment and discharge, which imperatively calls for such a construction. The twelfth section provides that the debtor who may be committed to prison at the suit of the prosecuting creditor, or who shall have given a bond to avert commitment on the complaint of such creditor, conditioned that he will, within thirty days from conviction, apply for an assignment of all his property and for a discharge, or against whom any suit shall have been commenced in a Court of Record, in which such debtor, by the provisions of the act, cannot be arrested or imprisoned, m'ay petition that his property may be assigned, and that he may have the benefit of the provisions of the act. The only benefit that the act confers, and for which he may pray, is to be exonerated from being proceeded against under those sections which relate to his arrest and conviction for any fraud committed or intended before his discharge, by any creditor entitled to a dividend of his estate. The only creditors in a situation to proceed against him under the act, at the time of the debtor’s application, are those enumerated in this section, and they are consequently the only persons whose rights are to be immediately affected. Their relation to the debtor assimilates to that formerly sustained by creditors who had charged in execution the person of their debtor. The petition is not that he may have a discharge that shall exonerate him from being proceeded against by all creditors; for if this were so, the debtor would receive a discharge as against all not in a situation to pursue the proceedings under the act, without, notice to them. By the thirteenth section, the debtor, on presenting his petition, is to deliver an account of his creditors, and an inventory of his estate, similar, in all respects, to the account and inventory required of a debtor by the sixth article, of title first, of chapter five, of the second part pf the Revised Statutes ; and shall annex to such petition, account and inventory, an affidavit similar, in all respects, to the oath required by the fifth section of such article. ¡¡Slow, this sixth article provides-for a proceeding on the part of the debtor which shall enure to the benefit of the prosecuting creditor or creditors alone, and the inventory is unlike that to be made when such debtor assigns, under the third and fifth articles of the same chapter, for the benefit of all his creditors. But the Chancellor thinks “ that the person who drew” the act, probably by inadvertence substituted the sixth for the fifth article, as the thirteenth section of the act of 1831 provides that the debtor shall deliver an account of his creditors, and an inventory of his estate similar, in all respects, to the account and inventory required by the sixth article, and by the sixth article no account of creditors is required to be annexed to Ms petition.” I should certainly be unwilling to rest a construction of this section, and as a consequence possibly the act itself, on a supposed “ inadvertence” of the framer of the law, or of the Legislature that passed it. By the sixth article, the debtor must set forth in his petition “the cause of his imprisonment,” which, of course, would embrace the name or names of, and the sum or sums due to, the creditor or creditors at whose sMt he is imprisoned, and who only are interested, and this would he informally “ an account of his creditors.” I understand the requirement of the thirteenth section of the act to-be, that the debtor shall deliver an account, not of all his -creditors, but of those mentioned in the twelfth section who have pursued or may pursue him to a conviction under the ninth section. If the reference to the sixth article be incorrect, then either no affidavit would be required, or one varying essentially from that prescribed in such article. By the third and fifth articles of the chapter of the Revised Statutes referred to, the debtor is to make oath, substantially, that he has not preferred any of his creditors with a view to obtain the prayer of his. petition, or “ with the view that they should abstain or desist from opposing his dischargebut such is not the nature of the oath required by the sixth article, where the question of preference as to creditors generally does not arise, and where the debtor’s discharge, as in the third and fifth articles, cannot be denied for giving such preference. ■Instead of the thirteenth, section incorrectly referring to the sixth article, I think such reference is in harmony with the objects and aim of the act as developed in the preceding sections; and instead of having, as the Chancellor concludes, “ no particular bearing upon the question as to who is to take the beneficial interest in the assigned property under the assignment provided for in the sixteenth section,” it furnishes a strong foundation for the opinion that the Legislature did not intend that such assignment should enure to the. benefit of all the assignor’s creditors rateably. For had such been the intention, the inventory and oath would doubtless have been assimilated to those, in cases under our insolvent laws, which contemplate such a result, and which look, in such inventory and -oath, and in all other proceedings, to securing equality of distribution amongst creditors. The discharge, by the seventeenth section, only operating against a particular class of creditors, there was a propriety in assimilating the proceedings to a' branch of the existing insolvent laws, whose operation was of a similar character.

The fifteenth and sixteenth sections of the act, regulate the proceedings on the debtors petition; and direct that if at the hearing the opposing creditor shall fail to satisfy the officer that such proceedings are not just and fair, or that he hag concealed, removed or disposed of any of his pr'operty with intent to defraud his creditors, such officer shall order an assignment of all the property of. the debtor in the same manner as provided in the fifth article, of the first title, of the fifth chapter of the Bevised Statutes, except such as is therein exempt; which assignment shall be executed with the like effect as declared in such article, and shall be recorded in the same manner. By an examination of the fifth article it will be found that the only effect declared therein is “ to vest (by the assignment) in the" assignees all the interest of such insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable.” It no where declares who are to be the distributees under the assignment. It would seem that the reference to the article is simply for the purpose of ascertaining what property the assignment passes, and the period from which it relates. I cannot avoid the conviction, that if the intention had been to determine who were to be the distributees, the Legislature would have referred to those sections of the insolvent laws specifically regulating that subject; and I am not disposed, with the view of establishing a particular theory of distribution, to argumentatively incorporate into the article referred to, a provision of another article, which, in accordance with my view of the general object and intent of the act of 1831, the Legislature designedly omitted.

The eighteenth section provides that the assignees to whom the assignment shall be made, shall be vested with all the rights and' powers over the property so assigned which are specified in the eighth article, of the first title, of chapter five, of the second part of the Revised Statutes, and shall be subject to the same duties, Obligations and control in all respects, and shall make dividends. The only section in the eighth article which directs as to distribution, provides a different mode in proceedings under each of the articles'of the title. Under the third and fifth articles, the distribution is to be among all who were creditors at the time of the execution of the assignment; under the sixth article, among those at whose suit the debtor was imprisoned on execution at the time of his discharge. So that the eighth article throws no light on the question of distribution.'

It is apparent that if the Chancellor’s construction of the 16th, 17th and 18th sections of the act of 1831, be the only “sensible” one, viz : that the assignee take's the property of the debtor as a trustee for the benefit of all the creditors of the assignor rat'eably, then the discharge should exempt the debtor from arrest or imprisonment generally; but -such certainly is not the intent of the act. The seventeenth section specifically declares the effect of the discharge. It is, that for any fraud committed or intended before such discharge, the debtor shall be exonerated from being proceeded against under those sections which authorize his arrest and conviction by any creditor entitled to a dividend of his estate; not that he shall be exonerated from arrest and imprisonment by all creditors, but clearly, by reasonable construction of language, by those creditors only, who, before such- discharge, were entitled to proceed against them- under the act. So creditor unless he had commenced a suit or obtained a judgment or decree could proceed; and it is against the proceedings of such creditors alone that the discharge operates. Its operation cannot be against all creditors. The Legislature could not have intended to conclude creditors by proceedings of their debtor, of which proceedings they were not .to have notice. If this were so, a debtor in collusion with a friendly prosecuting creditor might fraudulent pursue the provisions of the act to an assignment and discharge, and other creditors, without notice, be bound by his proceedings. If, therefore, the discharge, which is the. fruit of the assignment, is only to operate against those creditors who may pursue the provisions of the act, that would seem to follow, which is but equity, that the distribution .of the debtor’s property should be among those affected by it. This is a principle always heretofore acted upon in the distribution of the estates of insolvents, and on no other principle can equity be done. In a case under this act, if the principle of equality of distribution amongst all creditors should govern, the effect would be that a certain class of creditors whose remedy, by coercion was gone, would but receive rateably with others to whom it was continued; and whilst the right of the particular creditors specified in the second section of the act to imprison the debtor remained, they would also, under a remedy not given to them, become distributees rateably of his property. This, in respect to the means provided for enforcing payment from a fraudulent debtor, would not be that “ equality among creditors” which, under other circumstances, is declared to be equity.

An attentive consideration of its provisions has led me to the conclusion, that the intent of the act of 1881, was, after abolishing imprisonment for debt in suits arising upon contract to provide a remedy for those immediately effected by such abolition, through which they might reach the fraudulent debtor’s property, to satisfy their demands; that the proceedings taken under such act enure to the benefit of the prosecuting creditors exclusively; that by initiating and pursuing the remedy prescribed by it, they acquire a right of priority or preference in the distribution of the debtor’s estate ; and that neither expressly or by implication is there any authority for such distribution amongst creditors generally, but the whole scope and tenor of the act is in opposition to it. I am, therefore, of the opinion that a voluntary assignment by the debtor of all his property for the benefit of his creditors generally, pending the proceedings against him, and in order to defeat the prosecuting creditor’s preference of payment out of such property, is a fraud upon the act of 1831, and upon the rights of such prosecuting creditor.

In the present case, after the arrest on the complaint of the appellants, and pending the proceedings against them, the respondents, Charles Wardell and Charles B. Wardell, executed an assignment to Henry B. Wardell, of all their co-partnership property and effects to pay all their creditors rateably, and Charles Wardell, also, at the same time, assigned to Henry B. Wardell all his individual property, in trust, to pay his individual creditors rateably, and then to apply the surplus to the payment fro rata of the creditors of the firm. The whole of the property at the date of the assignment was delivered to the assignee, who now holds and refuses to make any disposition of it, or the proceeds thereof, otherwise than upon the terms expressed in assignment to him. The respondents, in their answer admit that, the assigned property is much more than sufficient to pay the demand of the_appellants. These assignments were made in fraud of the act, and of the rights of the appellants acquired thereunder; and it is' plainly to be perceived, were so intended by the respondents themselves. Bor if, as they now contend, the statutory assignee would take for the benefit of all creditors, why, pending the proceedings, voluntarily make assignments having the like effect? Nothing can be more undoubted than that the respondents contemplated a fraudulent interference with the statutory assignment.

On the main question, therefore, I am of the opinion that that the decree of the Chancellor is erroneous, and should be reversed. With regard to the mode in which relief shall be granted to the appellants under the circumstances of this case, my views fully accord with those expressed by my brother Bronson.

Bronson, J.

The first question is, whether the assignment which a debtor executes under the non-imprisonment law, (Stat. 1831, p. 400, § 16-17) is for the benefit of all his creditors ; or whether the assigned, property goes exclusively to the creditor who instituted the proceedings. The Chancellor had considered this as an open question; but as I understand the authorities, it had been settled, so far as the Supreme Court could settle it, that the property goes to the particular creditor who compelled the assignment, to the exclusion of all others, until his debt is paid. The proceeding is nothing more' than a statute execution which reaches property not subject to seizure by fieri facias, and such as, through the fraud of the debtor, either has been, or is in danger of being placed beyond the reach of ordinary process. The question was considered in The People vs. Abel, (3 Hill 109,) and though not then decided, I well recollect that there was no diversity of opinion among the Judges on the subject. And in Bartholomew vs. Betts, (4 Hill 577,) the point was necessarily decided; for if the act of 1831 is an insolvent law, its operation was suspended by the bankrupt act at the time the creditor, in that case instituted proceedings to compel |an assignment; and it clearly is an insolvent law, if an assignfeient under it is made for the benefit of all the creditors. It was therefore necessary to decide the question; and the Court held, that the act of 1831 was not an insolvent law, but only a new remedy in favor of a creditor who had commenced a suit, or recovered a judgment against the debtor. Moak vs. De Forrest, (5 Hill 605,) holds the same doctrine. And so far as I have been able to learn, the non-imprisonment law has uniformly received this construction among those who have administered it, from the time of its enactment in 1831, down to the time this case was decided in August last. I do not think-it necessary to add anything on this branch of the case further than to say, that the high respect which I always feel for the opinions of the Chancellor' has induced a careful re-consideration of the question, which has resulted in confirming my former opinion.

The defendants, in the judgment were arrested on the warrant and taken before the Circuit Judge on the fifth of November; and after several adjournments, the Judge, on the 28th day of that month, decided that the allegations of the complainants were substantiated; that the defendant had rights in action and evidences of debt which they had unjustly refused to apply to the payment of the judgment, and that a commitment must issue in pursuance of the. 9th section of the act. Pending the proceedings, and on the 21st day of the month, the defendants in the judgment made a voluntary assignment of all their property to the defendant Henry B. Wardell, the son of the defendant Charles War dell, in trust, to apply the avails of the property, after satisfying the expenses of executing the trust, for the benefit of all the creditors, without any preference. The value of the property thus assigned greatly exceeded the debt of the complainants ; but was not enough to pay all the creditors : and in consequence of this assignment the defendants in the judgment had no estate to insert in their inventory when they afterwards applied to the Judge for a- discharge under the act, for the purpose of preventing the commitment which had previously been ordered. How although the complainants acquired no lien upon the property by commencing proceedings under the act, they acquired the right to a preference over the other creditors, which could not be defeated by a voluntary assignment; and the transfer of the property to Henry B. Wardell was a fraud upon the law, and the complainants, which a Court of equity should not permit to succeed. (Wood vs. Bolard, 8 Paige 556, matter of Hurst, 7 Wend. 239; Hadden vs. Spader, 20 John. 554; McDermutt vs. Strong, 4 John Ch. 687.) The Chancellor would, I presume, have felt no difficulty in granting relief, if he had not come to the conclusion that the assignment under the statute was for the benefit of all the creditors.

If the complainants had obtained a lien on the property by commencing proceedings under the statute and the title had vested in Hash the statute assignee, he would then have been a necessary party to the bill. But as their was no lien, the legal title to the property passed to the defendant Henry B. Wardell under the voluntary assignment; and so long as that assignment stands, Hash has no interest which can make it necessary for him to join with the complainants in a bill for the assertion óf their rights. If we should set aside the voluntary assignment, and thus subject the property to* the operation of the statute assignment, then Hash might be a necessary party. But there is no occasion for setting aside the roluntary assignment. It covers a large amount of property beyond what is.necessary to pay the debt of the complainants, and they are the only creditors who are entitled to a preference. The proper course, haying regard to the rights and interests of all the creditors, will be, to declare that Henry B. Wardell holds the assigned property as a trustee for the complainants to the extent of their debt, and make a decree that-he'pay the same. In this view of the case Hash has no interest, and the objection that he should have been made a party must be overruled.

I am of opinion that the decree of the Court of Chancery should be reversed; and that a decree should be entered in favor of the complainants, as above suggested. They should also have costs in the Court of Chancery.

Decree accordingly.


author: Jewett, Ch. J.,

text:
    Burkle and Gebbard, Executors, &c., vs. Luce.
    After a Sheriff had levied upon property which belonged to the defendant in the execution, another person brought replevin, and had the same property deliv. .ered to him upon the writ, and died pending the action; held, that the Sheriff might retake the property and sell it to satisfy the execution.
    On the death of a plaintiff in replevin the action abates and cannot be revived by scire facids.

    In such a case the defendant has no remedy upon the replevin bond.
    Where the original Execution upon which a levy had been made was lost, and the Supreme Court from which it issued, ordered, on motion, that a new one like the original be issued as a substitute therefor, that the Sheriff’s certificate of the levy be endorsed thereon, and that such substituted execution and certificate have the same force and effect as the original would have; and a new execution was issued and endorsed accordingly; held, that the same was admissible as primary evidence to prove and justify the levy without showing the loss of the original.
    On error from the Supreme Court. Burkle and Gebbard, as executors of the will of Charlotte Seitz, sued Luce in replevin. The cause was first tried at the Oswego Circuit in June, 1843, when a verdict was had for the plaintiffs. The Supreme Court on bill of exceptions granted a new trial. (See 6 Hill 558.) The cause-was again tried before Gridley, Circuit Judge, at the Oswego Circuit, in June, 1845. The case was this: The defendant was a deputy of the Sheriff of Oswego county, and on the 8th of January, 1840, a fieri facias was delivered to him against Christian J. Burkle, and on the same day he levied it upon the property in controversy. Charlotte Seitz claiming the property under a previous sale to her from Burkle, brought replevin against the defendant and had the goods delivered to her by virtue of the writ.' That action was tried and a verdict found for the defendant, which was set -aside, and a new trial ordered. Afterwards on the 11th of February, 1842, Mrs. Seitz, the plaintiff in that action died, having made her will, and appointed the plaintiffs in this suit her executors. In July or August following, the defendant repossessed himself of the goods, and claimed to hold them by virtue of his levy above mentioned; and thereupon the plaintiffs as executors brought this second action of replevin and retook the property.
    Burkle, the defendant in the execution, was the owner of the property on the 26th of December, 1839, and on that day executed a bill of sale of it to Mrs. Seitz,"which sale was claimed by the defendant to be fraudulent and void as against the creditors of Burkle, and evidence was given tending to show that such, was the fact.- The' question of fraud was submitted by the Circuit Judge to the Jury.
    The plaintiffs’ counsel requested the Judge to charge, that although the sale by Burkle to Mrs. Seitz might be fraudulent, yet that the execution of the writ of replevin brought by Mrs. Seitz, destroyed the lien of th e fieri facias, and that the defendant had no right to retake the property. The Circuit-Judge refused so to charge, and the plaintiff excepted.
    Evidence was given tending to show that the original fieri facias was lost after the levy was made under it. It also appeared that after the supposed loss, the plaintiff in the fieri facias made a motion in the Supreme Court for relief, and on that motion, after hearing counsel on both sides, the Supreme Court made an order, that a new execution be issued under the seal of the Court, similar to the original one, that the directions to the. Sheriff and the Sheriff’s certificate of levy, which were endorsed on the original, be endorsed on the new one to be issued, and that such new execution and the endorsements thereon be of the same validity and • effect for all purposes as would-have been the original, had not the same.been lost. In pursuance of this order a new execution was issued, which was a copy of the original, and on which the defendant as deputy sheriff made the same endorsement of levy as he had made on the original. This substituted execution was offered in evidence on the trial. This was objected to by the plaintiffs, on the ground that the loss of the original was not sufficiently proved. The Judge admitted the execution in evidence, and the plaintiff excepted. .
    The jury found a verdict for the defendant; and the plaintiffs moved in the Supreme Court for a new trial upon bill of exceptions, which motion was denied, and judgment rendered for the defendant.

      W. Duer, for plaintiff in error.

      H. Hill jr. and uS.' B. Talcott for defendant in error.
   Jewett, Ch. J.,

delivered the opinion of the Court. I am of opinion that the action brought by Mrs. Seitz, abated by her death, and could not be revived by scire facias. (2 R. S. 576, § 2; ib. 386-7, §§ 2, 3; Webber vs. Underhill, 19 Wend. 447; Cutfield vs. Corney, 2 Wils. R. 83.)

The plaintiffs, however, insist that the delivery of the goods to Mrs. Seitz, by virtue of her writ of replevin, put an end to the lien acquired by the levy .under the execution made by the defendant, and consequently he had no right to retake the property, although the suit was at an end. If this position be correct, it would seem plain that the plaintiff in the execution, might lose all remedy under it to collect his debt, although there was enough property of the defendant in the execution levied upon, to satisfy it, and still have no remedy upon the bond given by the plaintiff, in the replevin suit, to the Sheriff on his executing the writ; the condition of the bond being, that the plaintiff will prosecute the suit to effect, and without delay, and that if the defendant recover judgment against the plaintiff in the action, he will return the same property, if return thereof be adjudged, and will pay to the defendant all such sums of money as may be recovered against him, by such defendant in the said action, for any cause whatever. To comply with the conditions of the bond, the plaintiff was required, 1st, to prosecute her suit to effect without delay, and 2d, in case the defendant recovered judgment against her in the suit, to return the same property, &c. Having died during the due prosecution and pendency of the suit, the law holds that the prosecution was to effect, “ because there was neither a non-suit or verdict against her.” (2 R. S. 523, § 7 ; Badlam vs. Tucker, 1 Pick. 284: Duke of Ormand vs. Biesly, Carthew 519,) and therefore no breach of the condition of the bond occurred, and the defendant has no remedy upon it, although the suit was at an end and the plaintiff a representatives were in quiet possession and use of the property replevied. The condition of the bond does not cover the case. (Cowdin vs. Stanton, 12 Wend. 120.)

The plaintiff’s counsel has cited, in support of his proposition, (Bradyll vs. Ball, 1 Brown Ch. R. 427; Woglam vs. Cowperthwaite, 2 Dall. 68; Frey vs. Leeper, 2 Dall. 131; and Acker vs. White, 25 Wend. 614.)

In the first case, the goods of one Bradbury, a tenant, were distrained by his landlord for rent; the tenant brought replevin, and pending the suit became bankrupt, as also his'sureties in the replevin bond, and his goods, including those dis-trained, passed into the hands of the defendants, Jones and Ball, his assignees who sold them. Afterwards the defendant obtained judgment in the cause in replevin, and sued out a writ, de retorno habendo, and filed his bill in Chancery, insisting that he had an equitable lien upon the goods taken in distress for a return of the goods, or payment of the value of them by the assignees. It was urged by the defendants that the landlord had no title to the goods, but only a right to call on the Sheriff to take them into his possession. That the writ carried the idea of the right of the tenant to sell the goods, that the landlord had no interest or property in them and could not prevent the replevin; that the sale by the Commissioners took away all the right of the landlord; that the assignees sold the goods before the landlord was entitled to the retorno habendo; and if Bradbury himself had sold the goods after the replevin, the result must have been the same, his other goods would have been liable, and if he had none, the pledges would be. That the replevin bond was not forfeited before the bankruptcy, so that Bradbury was not discharged; he and his sureties might be sued, for, till the return awarded, there was no forfeiture of the bond.

Lord Loughborough, Lord Commissioner, said that when the goods were replevied, thev are delivered over to abide the event of the suit. If they came afterwards into the hands of persons in privity with the tenant, they would he liable upon the return, &c. If sold, an action for money had and received, would lie for the money, and concluded by saying: “ If the assignees were liable in equity, the value being settled, they must be so at law, and therefore ordered that the bill be retained, and that an action at law be brought for money had and received to the plaintiff’s use, against the assignees.” Such action was brought, and the Court held that the plaintiff had no lien upon the goods, and afterwards the bill was dismissed, and the defendant left to his remedy on the replevin bond, which, in that case, was complete; and during the pendency of the replevin suit, the property had passed into the hands of the assignees in bankruptcy, who had sold the same, and thereby third persons had acquired rights under the plaintiff in replevin.

The case of Woglam vs. Cowperthwaite, was this: Emlén distrained the goods -of Hamilton, his tenant, for rent. The tenant brought replevin and gave security to the Sheriff^ and afterwards moved the goods into the house of Woglam, who, after rent had accrued to him, distrained the same goods. The next day after this distress was made, Hamilton removed the goods from off the premises. The officer who made the last distress followed them and had them appraised in the house to which Hamilton had removed them. Shortly after tips, and while the goods remained where they were appraised, the defendant, in the first replevin suit, obtained judgment for his rent, and issued a retorno hahendo, by virtue of which the Sheriff took the goods and delivered them to Emlen’s officer Who sold them. The action was against the Sheriff for taking the goods under the retorno hahendo, and the question submitted to the Court was, whether the goods were liable to be taken under that writ so as to exclude Woglam’s distress ? or whether, by the removal of the goods by Hamilton, the lien on the property acquired by Woglam’s distress was rot defeated as against Emlen ? The Court, on the authority of the ease of Bradyll vs. Ball, held that no lien remained in Emlen; that by the replevin the securities in the bond were substituted in the place of the goods, which were restored to the tenant, as his sole property; that he might sell them, that they might be taken in execution, and that they became liable to any future lien or incumbrance. Upon the retorno habendo, if the identical goods distrained were found in the hands of the tenant undisposed of- and unincumbered, they might be taken by the Sheriff; if not, after an elongata returned, a withernam might go against the general goods of the tenant.

The same principle was repeated in Frey vs. Beeper; that the lien on the goods was discharged by the security given to the Sheriff, and as soon as they were delivered back to the plaintiff in replevin, they were open.to execution or anew distress. That was also a cause where the goods had been taken as a distress for rent.

In Acker vs. White it was said on the authority of the first two cases, that the bond given to the Sheriff is a substitute for the goods, and that a replevin of the goods put an end to the lion of an execution which had been previously levied. But in that case the replevin suit was still pending.

Neither of the cases referred to, decide the precise point involved in this case. In the first three cases; the plaintiff, in replevin was the general owner of the goods, and as such had an unquestionable legal right to sell or dispose of them without a replevin, subject to the lien acquired by the defendant in replevin by his' distress for rent; therefore, in' those cases there is some and perhaps an entire propriety, in saying, that the lien by the distress was extinguished by the replevin and that the bond was a substitute for it, especially as the goods had been sold or disposed of by the general owner during the pendency óf the suit and third persons had acquired rights in them.

In the other case, White the plaintiff had purchased the property in question of Jessup, the general owner, and left it in his possession. But a few days prior thereto, Hillver as Sheriff, under an execution against Jessup, had levied upon it and soon after White’s purchase took possession of it, for which, White brought replevin against him, to whom, under it, the property ivas delivered, and who .again left it in the possession of Jessup; the replevin suit was tried and a verdict for Hillyer found, instead of taking- judgment for a return, he elected to take 'an assessment for the value of the goods ; White made a motion for a new trial which was undecided, when Acker subsequently as Sheriff under an execution against Jessup upon another judgment, levied on the same property still in his possession; for which, White brought replevin against him and obtained a verdict and judgment in the Superior Court of Mew York; oh error, the Supreme Court held, 1st, that White independent of his purchase of Jessup, should be regarded as having all the interest in the goods which belonged to Sheriff Hillyer under his fi. fa. and if that was sufficient to defeat the levy of Acker on his h. fia. it equally enured to the benefit of White. That the bond was substituted for the goods, and was conditioned among other things, to return the property.if adjudged against him— and although the lien of the execution was gone according to tl^e cases cited, it was because it was regarded as an equivalent security for the satisfaction of the judgment to' the extent of the value of the goods. That it would seem, therefore, but just and equitable that the interest to the extent of the lien should pass to the party thus giving the security and asking a deliverance according to law. And 2nd, the goods being in the custody of the law under a valid levy by Hillyer,who was entitled to the exclusive possession of the same, the defendant Acker could not acquire any new right to the possession while that claim existed, in full force, to be satisfied either out of the property by a return, or the security given therefor.

The case of Lockwood vs. Perry, (9 Metcalf, 440) in principle, bears a nearer resemblance to this case, than the cases above referred to. There Lockwood was the owner of two colts,—one Barnes claimed them as his property, and by a writ of replevin issued out of the Common Pleas in' Columbia. County in this State, the Sheriff took the' colts from Lockwood and delivered • them to Barnes. The action was tried, and the plaintiff Barnes recovered a judgment, in that Court; the defendant brought error to the Supreme Court where the judgment was reversed and a venire de novo was awarded,— before a trial was had, Barnes died insolvent while the suit was thus pending, having previously sold' the colts to the defendant Perry; after the death of Barnes, and before Lockwood brought the suit, he demanded the colts of Perry, which he refused to- deliver. He then brought replevin for the colts. The colts were never the property of Barnes, nor had he any right to the possession of them, unless he acquired a property in them by virtue of his action of replevin. It was held that Perry acquired no title to the colts by purchasing them of Barnes.

The Court in that case, said, that the position taken by the defendant, that the object and purpose of the writ of replevin were to transfer the possession of the article replevied to the plaintiff in replevin, was certainly well maintained, if by possession, be understood, a possession for the time being. That the further position that, t-ho plaintiff in replevin, after the service of the writ, has a right to sell the property thus replevied, and may give to the purchaser a good indefeasible title, which would not be affected by a judgment in favor of the defendant in replevin, was one more difficult to be sustained. That if it were limited to replevin in cases of wrongful distress of personal chattels for rent, or of cattle damage feasant, it might be more readily assented to, as in such cases the property is held by the defendant in replevin for a particular- purpose, and he does not claim to be the owner of it; and where the plaintiff in replevin, who in such case is the actual owner, has given the requisite security, by a bond, to pay such rent, or such damages, if the- property is not returned, it might be all that was requisite to do perfect justice between such parties. ■ That a plaintiff in replevin, who was the real owner of the property, might deal with the goods as his own, and make a legal transfer. But that did not sanction the broad doctrine, that by reason of the mere fact that he had acquired his possession through writ of replevin, his vendee acquired thereby an indefeasible title as against every body. That by the writ of replevin the plaintiff acquired the right of possession pending the action of replevin, and that the real owner could not lawfully disturb that right during the pendency of the action, nor institute an action against a third person who might become possessed of the goods ; and that was the extent of the right exercised by force of a writ of replevin.

It was further held that the abatement of the replevin suit, by the death of the plaintiff, operated to defeat a right of possession of a chattel acquired under a writ of replevin, having no other foundation besides that which results from such writ; and that the defendant, under such circumstances, may avail himself of his antecedent title, as the lawful owner, to regain the possession, although he may not have a judgment for are-turn of the property, provided he was content to resort to the property itself, and forego his remedy upon the bond.

In the case at bar, it has been shown that this property on which the defendant levied belonged to Burckle; and as such the defendant had an unqualified right to it for the satisfaction of the creditor’s judgment. Mrs. Seitz, without a.ny right to the property as against the creditor, availed herself of the action of replevin to obtain possession of it.

The suit having abated by her death, and she not having sol(l the property, but dying possessed of it, the plaintiffs as her executors succeeded to her rights and nothing more. In my opinion the proceedings upon the writ of replevin conferred upon her a mere temporary right of possession, which expired with the abatement of the suit by her death, and that, when that event occurred, the lien of the execution revived. Especially as the rights of no third person had intervened, under her, and that the defendant was at liberty to retake the property by virtue of his former levy. I concur with the opinion expressed in this case (6 Hill 558) “by the Supreme Court that if he could not regain possession peaceably, he might after a demand, bring trover or replevin against the executors, or against any one else who had acquired no rights under Mrs. Seitz while the action was pending, or under her representation afterwards. Upon the operation of these principles no one is exposed to sustain any injury, for if the defendant retakes the goods, a remedy is open to the plaintiffs representatives to test the right by suit, but the principle for which the plaintiffs contend, would without any remedy work a wrong. The defendant as Sheriff is justly entitled to the goods for the satisfaction of the execution in his hands under which he first seized-them, and has no remedy either by judgment, or upon the replevin bond. If his lien did not thereby revive, by which he could retake or sue for the goods in case they were withheld from him by the representatives of the plaintiff, he would, although he had an indisputable right to the goods, be without any remedy.

It is objected by the plaintiffs, that the Circuit Judge erred in refusing to charge the jury in respect to the question of fraud as requested; I am unable to see any ground for the objection; he left the whole question to them with proper instructions as to the law of the case, not indeed in the language of the request, but in a manner as I think better calculated to enable the jury rightly to comprehend the- qiiestion and their duty and province.

The execution in favor of Rathbun against Burkle was properly received in evidence. It was a substitute for the original ordered to be issued by the Supreme Court. There was no necessity of proving the loss of the original execution upon the trial in order to give in evidence its substitute. This substitute was admissible as primary evidence, and therefore it is unnecessary to decide whether a proper foundation was laid-, for its admission as secondary evidence. (Jackson vs. Hammon, 1 Caim. R. 496; White vs. Lovejoy, 3 Johns. R. 448 ; Love vs. Little, 37 Johns. R. 346; Chichester vs. Cande, 3 Cow. Rey 39.)

There is no error in the judgment of the Supreme Court and it should he affirmed.

Judgment affirmed.