Coverdale v. Wilder ( 1835 )

Per curiam.

The first question is whether the plaintiffs are parties to the assignment. It is not executed by Cover-dale, but his assent might be presumed, within the case of Ward v. Lewis, 4 Pick. 518, the assignment being for his benefit; but it is not necessary to resort to that ground, since Hills may be regarded as his agent.

The next question is, whether Coverdale was a preferred creditor ; and this depends on the clause recited from the assignment. In order to carry the assignment into effect to the greatest advantage, it was important to remove all attachments ; and the deed provides, that the assignees, after paying the expenses of executing the assignment and the trusts therein contained, shall apply the proceeds of the assigned property, first, to pay to Hills, or any other deputy sheriff, all claims or incumbrances he or they may have upon the property, by virtue of any attachment. It is contended, on one side, that the object of this clause was to pay the debt secured by an attachment ; and on the other side, that it was to remove the lien merely. It appears that before final judgment in the action of Coverdale, Aldrich deceased, and his e.state was represented insolvent, and a commission of insolvency issued, and thereby the attachment was discharged ; and so the assignees say they are not bound to proceed further in regard to Coverdale’s demand. Probably the event of the debtor’s decease was not in the contemplation of the parties. We must endeavour to give the instrument such a construction as will effect their intensions. And we think the fair construction is, that a preference was created in favor of the claims secured by attachments, and that the object was to remove the liens by paying the debts. It is true, the plaintiff Coverdale might have withdrawn his action ; and then it would have been clear that he should be paid. His continuing it in court may have been for greater security. However this may be, it could have no effect on the construction of the instrument of assignment. The plaintiff, we think, is entitled to recover the amount of his original debt.

The remaining question relates to the costs of Coverdale’s action. We think the assignment contemplated the extinguishment of certain debts on which attachments had been made, and not the costs which should accumulate by keeping the actions in court. The plaintiff will therefore recover the costs to the time of the execution of the assignment, but not those accruing subsequently.