Mitchell v. Willock ( 1841 )

The opinion of the Court was delivered by

Rogers, J.

The retention of the possession of goods by a mortgagor or vendor, is fraudulent per se, and void against creditors. This was ruled in Clow v. Woods, (5 Serg. & Rawle 275), and has been since extended to a partial or general assignment for the benefit of creditors, in 10 Serg. & Rawle 202, and 17 Serg. & Rawle 251. These cases would be decisive in favour of the execution creditor, but for the Act of the 14th of June 1836. But by that Act it is made the duty of the assignee under a voluntary assignment, within thirty days, to file an inventory or schedule of the estate assigned, with an affidavit of the assignee, &c., that the same is full and complete. The assignee is required to have the goods appraised, and the appraisement filed, and also to give bond with two sureties in double the amount of the appraised value of the estate assigned.' These provisions are intended for the security of the assignor as well as the creditors, and it may be well doubted whether the assignee, without their assent, would have the right to remove the goods (although the legal possession is cast upon him), until these prerequisites of the Act are complied with. As it was foreseen that in many cases these directions could not be immediately observed, the legislature has given thirty days for the performance of these conditions. In the intermediate time it cannot be doubted that the property passes so as to exempt it from execution. It is not required that actual possession be taken; the goods being suffered to remain in the possession of the assignor, who, for the purposes of the trust, is the agent of the assignee. The possession of the goods is consistent with the deed, and the object and intention of the assignment ; and it cannot therefore properly fall within the principle ruled in Clow v. Woods. It would carry a salutary principle to an unreasonable extent, if we held that the conduct of the assignee, rendered expedient if not necessary by a Statute, should nevertheless avoid the assignment.

Judgment affirmed.