Norton v. Cobb & Crawford ( 1856 )

The Court not being unanimous on all the points, delivered opinions seriatim.

By the Court.

Lumpkin, J.

delivering the opinion.

Without repeating the objections made to the regularity of the proceeding as specified in the bill of exceptions, and pronouncing a separate judgment on each, the Court are unanimously of the opinion that none of them were sufficient, in Law, to arrest the case, except as to the omission of the word “ is” in the affidavit. Our brother McDonald thinks that the failure to insert those two little letters, i s, was fatal and incurable. A majority of the Court hold that the oath is good without them; and that to make sense, they are necessarily implied, and may be supplied.

We aro all clear, that the assignment by Benson to Norton is void, under the Act of 1818. It is not an absolute sale, nor does it claim or purport to be. Had the assets over-paid .the debts of Norton, Kenney and Mason, could it be pretended that the surplus would not revert to and belong to Benson? ■ A

This is neither more nor less than a trust assignment for certain preferred creditors; and consequently, falls directly within the prohibition of the Statute of 1818, against partial conveyances made by a debtor in failing circumstances. This Court has uniformly held, hitherto, that the insolvent may sell his property to a creditor or any body else, and that he may mortgage or pledge it by way of security, so as not to put it beyond the reach of attachment, garnishment or execution; but that he could not make a technical assignment of his effects, whereby any portion of his creditors were excluded. Whether these rules have been properly applied in every case which has heretoore arisen, is not for me to say. In Banks vs. Clapp, (12 Ga. R. 514,) I have my doubts. I aided in the judgment there rendered, and am responsible for my proportion of the error, if, indeed, it be one.

In the case before the Court, I am satisfied that the instrument is utterly null and void.