Ezekiel v. Dixon , 3 Ga. 146 ( 1847 )

By the Court.

Lumpkin, J.

delivering the opinion.

Nathan Lichton, an insolvent, debtor, executed the following assignment to George M. Dixon and Simon Lichton, to wit:

“ Georgia, ) Know all men by these presents, that I, Muscogee County, i Nathan Lichton, of the County and State aforesaid, for and in consideration of the sum of five dollars to me in hand paid by George M. Dixon and Simon Lichton of said County and State, the receipt whereof I do hereby acknowledge, have sold and delivered, and by these presents do sell and deliver in consideration aforesaid as well as in consideration of the trusts and confidences hereinafter specified to be well and truly performed by the said George M. Dixon and Simon Lichton, the goods, wares, and merchandise now in store and in possession of the said Nathan Lichton, in the city of Columbus, Georgia, the same consisting among other things of brandy, gin, whiskey, rum, wine, segars, tobacco, cutlery, shoes, razor-strops, bonnets, coffee, sugar, salt, nails, syrups, bitters, oils, candles, shot, lead, white lead, powder, wooden-ware, hats, hardware, matches, crockery, pickles, caps, soap, spices, indigo, London porter, copperas, together with an assorted stock of dry goods, with many and all other articles in store as aforesaid. And in consideration aforesaid, the said Nathan Lichton hereby assigns and transfers to the said George M. Dixon and Simon Lichton all the book debts or accounts due to the said Nathan Lichton, for goods, wares, &c. sold by said Nathan Lichton.

In trust and confidence that said George M, Dixon and Simon Lichton shall sell and dispose of the aforesaid stock of goods, wares and merchandise, to the best advantage, at public or private sale, for cash, or on such terms as they the said Dixon and Simon Lichton shall think best; and also shall collect all the book debts due the said Nathan Lichton, and receipt for the same. In trust further, that the said George M. Dixon and Simon Lichton, shall pay off and discharge all debts due by said Nathan Lichton for rents, or to become due on contracts already made, and shall also retain for their services in peformance of the trusts herein specified, the sum of five per cent, each, and in addition thereto a sum not exceeding five hundred dollars for extra time and labour in making said sales and the settlements herein referred to. In trust further, that the said George M. Dixon and Simon Lichton, after having sold and disposed of said stock of goods, wares and merchandise, and realized the money therefor, and collected all the book debts due said Nathan Lichton which can be made available, shall pay out the same, pro rata, to all such creditors hereto annexed, who shall file their claims in the hands of said George M. Dixon and Simon L'ic'liton within six months from the date hereof, and who shall release the said Nathan Lichton from all further liability for or on account of said debts.

In testimony whereof, and in acceptance ,of the trusts herein created, all the parties hereto set their hands and seals, this twenty-fifth day of February, 1847.

'NATHAN LICHTON, (l. s.)

GEO. M. DIXON, (l. s.)

SIMON LICHTON, (l. s,)

Signed, sealed and delivered in presence of E. Harsney.

"Willis J. Halstead, J. P.” .

A List of Debts due by N. Lichton; February, 1847.

Perkins, Brook & White ,.......New-York____$1,330 85

Lemuel Smith...................“____“...... 165 64

Jose Manganedo...................... 668 01

Curtis fc Lyman........, ,......“____“...... 464 17

W. H. Carey fc Co,.................... 527 02'

Drury; Fairbanks & Co..,,,.....Boston....... 757 92

J. & G. C. Alexander...........New-York____ 507 97

F. J. Conant............ 705 03

L. Chapman........ 220 05

Eli C. Blake............ 121 37

Furman & Davis____ 295 04

P. Gordon.............. 105 40

Job Chandler & Foster.., 155 73

Ripley & McCullough----267 70

J.D.Dale.............. 57 00

Ingols'by, Boesseau & Co.. 280 16

Cameron, Moore & Co...,........“____“....., 350 54

W. D. Smith......................... 31 50

Wm. Underwood & Co..........Boston...... . •184 99

Smith, Wright & Co............New-York____ 421 31

Cleland & Daniorth................“...... 103 42

Fanning, Tweedy & Co...........“----“...... 495 35

Samuel Judd’s Sons & Co.........*•____“...... 444 69

Lawrence Myers & Co............“____'•...... 1707 89

O. & A. Wetmore...............“____“...... 1083 32

F. S. & D. Lathrop..............“___.“...... 160 00

Gans Leverman................Philadelphia..■ 200 00

Frost & Wallace................New-York ....-- 13150"

Thomas & Downing ..-..........Columbus ---- 201 80-

Jonas Fiedenwald .. ...........-Baltimore ---- 80 00

Duncan McKenzie..............Columbus 364 00'

Julius Rettberg.-...................“ .... 240 00'

Two days thereafter,- Emanuel Ezekiel, a creditor not emj braced in the deed, sued-out an attachment against Nathan Lichton, upon the ground that he was removing without thó" limits ofr the State, which was levied upon the same property conveyed by the deed, it being still in file store formerly occupied by Lichton. The property was claimed by Dixon. Upon-the trial of the right of property, the plaintiff in attachment requested the court to> charge the jury,- that this instrument was void by the act of 1818^ This the judge refused to do;- but, on the contrary, instructed the jury that, under that statute Lichton had the right to prefer one set-of creditors to another, in this mode, provided the transaction was" hona fide and there was no benefit, secret or open,- reserved for tho benefit of the debtor.

For" the giving of this charge, as well as for the refusal to give the instructions prayed for, the plaintiff in attachment excepted', And it becomes our duty to affirm or reverse the decision-' below.

The act of 1818 is in the following words:- “ An act to prevent assignments or transfers' of property to a portion of creditors, to the exclusion and injury of the other creditors, of persons who" fail in trade, dr who are indebted at the time of such assignment or" transfer.

“ Whereas- a practice of selecting particular' creditors, by as-" signments and transfers of property, made by- persons indebted, and thereby excluding or defrauding other hona fi.de creditors of their just claims on the estate of- insolvent debtors, is contrary to-the first principles of equity and justice ;■ to prevent- the mischief thereof,

“ Be it enacted, fyc. That- any person or persons unable to pay his, her or their debts, who shall at any time hereafter make-any assignment or transfer of real or personal property, stock in-trade, debts, dues- or demands, in trust to any person or persons,, in satisfaction or payment of any debt or demand-, or in part there-of, for the use and benefit of his, her or their creditor or creditors, or for the usé and benefit of any other person oí persons, by which afly creditor of the said debtor shall or may be excluded from an equal share or portion of the estate so assigned or transferred, such assignment, transfer, deed or conveyance, shall be null and Void, and considered in law and equity as fraudulent against credditors. Provided nevertheless, That nothing contained in this act, sháll prevent any person or persons in debt from bona fide and absolutely selling and disposing of1 any part or the whole1 of his, her or their estate, so the same be freé from any trust for the benefit of the seller, or any person or persons appointed by him, her or them.” Prince, 165.

Counsel for the assignee admit that the deed to Diison is within the words of the act of 1818; but they contend, that it shall be adjudged to be without its operation, because it comes within the reason of the proviso, which allows a preference to be made in a particular way, by an insolvent debtor among his creditors.

[1.] There ate two modes of construing statutes — =the one strict, the other liberal. Theformer adheres to the plain and obvious meaning of the law as it is written. The latter takes a larger, wider, and more comprehensive survey. It distinguishes between the intent and the natural signification of the words employed by the legislature; and declares, that a case, not within the meaning of the statute, according to the opinion of the judges, shall not be embraced in the operation of the statute, although clearly within the words-. And, vice versa, that a case within the meaning, though not within the words, shall be included. Nay, It goes still further, it seats the court in the senate chamber, and authorizes the judge to give such construction as will not only carry out the mind of the makers, but even to apply the rule to cases which, it is admitted, they did not contemplate, but which, it is supposed, the lawgiver would have provided for, if he had seen fully the mischief and the remedy. Sitting in an American court, T never can subscribe to this doctrine, and give my sanction to the latitude in Which it. has been practically indulged in its application in England.

"Where British statutes, such as the statute of frauds, of limitations, and the habeas corpus acts, have been adopted by our own legislation, it is reasonable to suppose, that it was designed to receive and incorporate, as well the known and settled construction which had been given by the British courts to these acts, as the acts themselves. In such cases, therefore, we are not at liberty to controvert the constitution; but, when called upon to interpret an act of our own, we are fettered hy no such shackles.

Moreover, great regard ought to be paid to the interpretation put upon a statute by the sages of the law who presided at the time, or shortly after its passage; cotemporanea expositio est fortissima in lege. It becomes a rule of conduct for our people, contracts are regulated by it, large and valuable estates depend upon it; and although, if 'it were now res integra, it might be very difficult to maintain such a construction, yet, at so late a day, the argumentum, ab inconvenienti, applies with great weight. Ye ought not to disturb a principle that has so long and so extensively prevailed; communis error facit jus.

I acted upon this principle in Whitehead vs. Peck, 1 Kelly 140, and likewise in Booth vs. Williams, 2 Kelly, and have since regretted that the Court had not yielded to it, in Harrison et. al. vs. Walker, 1 Kelly, 32, although I have never doubted, in other respects, the correctness of that decision.

Excessive legislation is said to be the vice of republics; yet, after all, it may be proof only of the entire separation of the judicial from the legislative department of the government. Each moves in its own orbit, and discharges the functions peculiar.to itself. What jurist has not felt surprised at finding how very few acts of parliament existed, which had any relation to the general principles of the English law; these have been left to be moulded, almost exclusively, by the courts of justice. Most of their statutes relate to mere fiscal regulations and concerns. British judges have not hesitated to assume legislative powei’, and, under the pretence of judicial exposition, have, in fact, made a great portion of the law of England. Lord Mansfield presided in the King’s Bench from 1756 to 1788, thirty-two years. During this period there were decided some forty cases on insurance, a half dozen under the title of factors and agents, and a dozen or more on bills of exchange and promissoi’y notes; and it is impossible to readmsxij of these opinions, as reported in Burrow, Cowper, Douglass, and the 1st volume of Term Reports, and discriminate between them and the statutes of the legislature of the realm for the same epoch.

It was the boast of Chief Justice Pemberton, that, while he was judge, he had made more law than kings, lords and commons, since the time he was born.

I admit, that whenever the words of an act are obscure or doubtful, or bear either none or a very obscure signification,, the intention of the legislature, as well as other helps, may be resorted to in order to find and fix their true meaning. But I hold, at the same time, with Lord Chief Justice Willes, “ that it is very dangerous for judges to launch out too far in searching into the intent of the legislature, where- they have expressod themselves in plain and clear words. Willes, 397.

And, with the Supreme Court of the United States, in Sturges vs. Crowninshield, “ that, although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words.” And that, “ it would be dangerous in the extreme to infer, from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses, of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provisions to the case would be so monstrous, that all manhind would, without hesitation, unite in rejecting the application.” 4 Wheaton, 202. The Marquis Beccaria, in his admirable little treatise on Crimes, thus expresses himself: “ There is nothing more dangerous than the common axiom — the spirit of the laws is to be considered. To adopt it, is to give way to the torrent of opinions. Our knowledge is in proportion to the number of our ideas ; the more complex these are, the greater is the variety of positions in which any proposition may be considered. Every man hath his own particular point of view, and, at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good or bad logic of the judge; and this will depend on his good or bad digestion, on the violence of his passions, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man.

“ The disorders that may arise from a rigorous observance of the letter of the laws, are not to be compared with those produced by the interpretation of them. The first are temporary inconveniences, which will oblige the legislature to correct the letter of the law; and this will put a stop to the fatal liberty of explaining. When the code of laws is once fixed, it should be observed in the literal sense; and nothing more is left to the judge, than to determine whether an action be or be not conformable to the written law. When the rule of right, which ought to direct the actions of the philosopher as well as the ignorant, is a matter of controversy, •not of fact, the people are slaves to the magistrates.”

Shall truths like these bring upon their author the classical reproach, qni haeret in litera, haeret in cortice 1 They are far too enlightened for the soil (Milan) which gave birth to them. They would confer honour even on the conscript fathers of our own republic. The most stern and stubborn devotee to liberty and limited government, never gave utterance to sounder or more salutary sentiments.

Mr. Bisset, author of the Life of Burke, and of the ^History of the reign of George III., makes the following admirable and appropriate reflections in referring to the retirement of Lord Mansfield from the King’s Bench.

“ For comprehending the law of this particular country, William Murray, a man of the most acute and extensive genius, had prepared himself by a profound study of history, general ethics, the philosophy of jurisprudence, the investigation of human passions ■and conduct,, and the civil law, on which the judicial institutions of so great a part of modern Europe are founded. On this basis he raised his superstructure of knowledge of the English code. To the depths of legal science, the accuracy and extent of juridical details, he added the pleasing and impressive accomplishments of an .engaging, graceful and persuasive eloquence. From such an union and extent of qualifications, Mr. Murray very early rose to most distinguished practice. With such opportunities of observing the circumstances of society, of civil 'actions and engagements, and criminal perpetrations, his penetrating and comprehensive mind ■saw that the progress of social, and especially commercial intercourse, was producing new combinations, which had not been specially foreseen when the laws applied to such subjects were enacted ; therefore he inferred that the essential principles of justice required such a latitude of interpretation as would render existing laws applicable to the neio cases.

“ The intelligent reader must know that there are two great standards of judicial interpretation; the one the authority of custom, decision and statute, according to the literal definition ; tlie other according to the general principles of equity construing particular law, written or unwritten, in such a way as best to answer the great ends of justice. The learned reader must recollect that, at Rome, two sects of civilians arose from the above-mentioned difference, the Proculians and the Sabinians, taking their names from two eminent jurists. The first of these, resting entirely on authority and definition, merely considered the letter of the law. The second, interpreting more freely, endeavoured to adapt it to their conceptions of justice in the case. Each of these modes has advantages and disadvantages; by the former, parties may know the exact rule by which their dispute will be tried, but may find the literal judge difficulted in applying his rule to their case, or entangled by precedents, forms and definitions, unable to solve the question agreeably to substantial justice ; by the latter, the parties may, from a just and competent judge, expect an equitable determination of the question : but they depend on his individual understanding and integrity. By deviating from literal explanation, in the progress of construction the law may be changed, and thus the judge become a legislator. During the republican periods of the Roman law, strict and rigid interpretation of usages and decrees prevailed; during its imperial history, latitude of construction was gradually substituted, and when Trebonian and his associate civilians digested the laws into one great body under Justinian, its constructive character predominated; hence modern jurists, whose legal doctrines have owed a great part of their formation to the civil law, have interpreted freely.

“ The close precision of English reasoning has diffused itself through municipal institutions, and, combining with the English accurate sense of justice, has in the great body of the law made so specific provisions for all cases, when the laws were enacted likely to occur, that it may be safely advanced as a general position, that in every question within the knowledge, foresight and intent of our lawgivers, the more nearly the decision follows the letter of the law, the more fully will the purposes of justice be answered ; but when combinations of engagements and conduct arise, which law-givers have not specifically anticipated, and on which the judge is called to give decision, he must apply the constructive character of the civil law.”

1 he Historian and Reviewer, after noticing the fact that his great favourite verged more to constructive than literal interpretation, “ partly from that powerful and comprehensive genius, which, in seeking its ends, might less regard customary details than adequacy of means,” thus concludes: “ Perhaps on the whole,, unless a judge be uncommonly sagacious and able, literal interpretation, keeping as closely as possible to precedent and statute, if in some cases it may be an obstacle to what is right, yet in a. much greater variety, is a preventive of what is wrong.”

"Who does not see in this picture the shadowy outline of the two. great political parties which divided this country at the formation of the Government 1 Instead of taking the constitution (our-supreme law,) as it is, and adhering to it in good faith, the friends, of consolidation have sought by interpretation to malee it what they would have it to be. And this was threatened in the convention-, that formed it, if the annals of the times are to be credited. Had latitudinary interpretation — the ever-fruitful source of disputation and strife — been eschewed from the beginning, we should, as a nation, have escaped those heart-burnings and contentions which have repeatedly menaced the overthrow of our beloved Union.

"With these general observations as lights to our path, what, I ask, is the plain reading of the act of 1818, as heretofore quoted ?' And, to collect its meaning, let us look to the law itself, leaving out of view title, preamble and proviso. I would remark, however,, that the title is in strict conformity to the enacting clause. That the preamble cannot of course restrain the body of the act. (2 Har. & Johns. 69.) The difficulty here is, that the preamble is larger than the act itself; and as to the proviso, it does not affect, in the remotest maimer, the body of the act. And besides, it confers no-new right. There never was a time when an insolvent person might not bona fide and absolutely sell and dispose of his property", provided it was free from any trust.

I recur then to the question, what is the intent of this act ? [2.] It speaks for itself, and in the most clear and unambiguous language. It declares that any person unable to pay his debts, who shall make an assignment of his property in trust to another, in satisfaction of any debt, or in part payment thereof, for the use and benefit of his creditors or any other person, by which any creditor of the debtor shall be excluded from an equal share or portion of the estate so assigned, such conveyance shall be void as against the creditor or creditors so excluded.

Is not, I ask, the transfer from Lichton to Dixon & Lichton [3.] the Daguerreotype likeness of the one prohibited by the act? Nathan Lichton, admitted to be insolvent, assigns the whole of his effects to George M. Dixon and Simon Lichton, in trust — first to pay them for their trouble, and then in payment of certain creditors, provided they will file their release in a given time ; and this is done to the exclusion of Emanuel Ezekiel, the plaintiff in attachment. To sustain this instrument is to repeal the statute. If this deed is not condemned by it, nothing can be. It is drawn in the very teeth of the act; and what is there out of the body of the statute to help it ?

The title of the act is to prevent partial assignments. The preamble asserts, that any preference given to particular creditors by insolvents, is unjust; and the act then proceeds to designate a particular mode in which this shall not be done — no doubt the mischief which the Assembly had in its eye at the time. It then concludes by declaring, that notwithstanding this class of conveyances was prohibited, that it was not their design to prevent any person from making a bona fide and absolute sale of his property. And because a preference might still be made in this way, by selling the property either to the creditor himself, or to a third person, and paying over to the favoúred creditor the proceeds in extinguishment of his demand, it is gravely insisted that it was unreasonable to forbid a preference being made in the way now attempted. This may be true; still, had they not the right thus to discriminate with or without reason — yea, even against reason % And are not courts powerless to interfere % And yet I feel it due to the authors of this act, to say, that I can see many reasons why a direct 'sale would be tolerated, and this species of conveyance to relatives and friends in trust for creditors, repudiated.

But I am content to shield myself under the obvious import of the terms of the statute itself. I shall always deem it my duty to conform to the express will of the Legislature when the statute is constitutional, reasonable, effectual, and free from obscurity. And when the language, as in this instance, is clear-, direct, and positive,-leading to no absurd results but affording a suitable if not a sufficient remedy to an existing evil, I do not feel at liberty to speculate upon the imperfection of the law as it is. I repeat it, for it is a vital truth, and one which cannot be too often reiterated, that there is nothing more fatal to the security of person and property, than the uncertainty which must necessarily attend that law which looks to the Bench for its occult meaning. No citizen, no attorney, ever can calculate exactly in such a contingency. Hence the discontent always evinced at this method of interpreting laws.

In the one mode the whole profession harmonize. In the other there is not, and, from the nature of the case, never can he, either uniformity or stability. :-

Judgment reversed.