Lester v. Abbott, Pollock & Cochran ( 1865 )

Barbour, J.

An assignment for the benefit of creditors, which directs or authorizes such a disposition to be made of the property conveyed, or of its proceeds, as will if so carried into effect by the assignee, operate to deprive the assignors’ creditors of their right to have such property applied to the payment of their claims, is proven by itself, and therefore, by evidence which is incontrovertible, to be fraudulent in fact, as against the creditors of the assignor. For the assignor must be held to have intended to do what lie has done, and to have designed to defraud his creditors, if the assignment directs or permits it, and the evidence of such intention there found is conclusive, under well established rules of law, and cannot be contradicted by oral testimony. In my view, therefore, it is not material whether either of the three persons mentioned in the third direction, was or ivas not individually indebted to the assignee Fiske at the time the assignment was made, for that instrument assumes that they were so indebted, and directs him to be paid, and to be paid too, as I understand the effect of the direction, in preference to the creditors of the firm, or either of them, if the assignees should so elect.

But beyond this, the authority given to the assignees to pay Mr. Fiske, was not a direction to pay any specified sums on account of such individual indebtedness, nor expressly to pay to him such amounts as those persons owed him at the time the assignment was made, as is usual in deeds of assignment, but under the peculiar workings of such third clause of the trust, I see no reason why Mr. Fiske may not pay to himself out of the proceeds of the property as they shall be received, any claims that may then be due and owing to him by either Abbott, Pollock or Cochran, individually. So far as regards the direction to pay the creditors of Pollock & Cochran, individually, the assignment is unobjectionable as concerns the plaintiffs here, for the property belonged to the firm of Pollock & Cochran, and except for their legal obligation to apply the partnership' property to the payment of the creditors of that firm, they had a perfect right to prefer their individual creditors other than those to whom they were indebted as members of the former firm of Abbott, Pollock & Cochran, but the were legally bound to apply their property to the, payment of their own liabilities, including their indebtedness as members of the former firm, and had no right to appropriate it to the payment of the individual debts of Abbott, who had no interest in such property. Forjheso reasons, I am of opinion that the assignment must lie declared invalid as to the plaintiffs here, and that they are entitled substantially to the relief demanded in the complaint. The assignees, however, should be required only to pay the plaintiffs’ claim and the costs of this action out of the assigned property or its proceeds, which was in their hands or under their control at the commencement of this action.

The. pressure upon my time, because of the great amount of business brought before the court at the February special term, is such as to render it impossible for me to give my views at length upon the question raised by the defendants’ counsel at the hearing, as to the effect of the judgment of the common pleas and supreme court, in the action brought by receiver BosLwick. I am satisfied, however, that those judgments do not constitute a bar to this action.