D. & J. Sadlier & Co. v. Fallon , 4 R.I. 490 ( 1857 )

Ames, C. J.

The assignment is presumed to be accepted by the preferred creditors, as for their benefit, and will be supported by the consideration of their debts, to the extent of the same, unless by its terms it obliges them, in order to take any benefit under it, to release the assignor. In the latter event, until their assent to this condition, and, to be effectual, in the mode and within the time pointed out by the assignment, the assigned property is liable to attachment by foreign process in the hands of the assignor.

In this case it is conceded, on the one hand, that no such releases were executed by the preferred or general creditors at the date of the attachment, or at any time since, and on the other, that the debts due to the preferred creditors, if they are entitled under the assignment without a release, will far more than absorb the proceeds of the assigned property, and leave nothing for the attachment to operate upon. We see no reason to change the opinion before expressed by us on another occasion, in relation to this assignment, — that it does not, according to its natural construction, require the creditors specially named and preferred, to release, in order to take benefit under it. The second clause of the assignment embracing them, calling them by name, states the amount of their debts and dues, and orders the proceeds of the assigned estate to be applied to their full and unconditional payment. The proviso in question is a part of, and qualifies, as it seems to us, the third clause only; which distributes the residue amongst those whom the assignor designates only as his “ creditors,” — a term which, however applicable, he does not apply to those named in the second clause of his assignment. The words in the proviso, “ if any of my creditors,” &c., cannot, in our judgment, be extended beyond the class of persons thus designated in the clause with which the proviso is alone grammatically connected, without doing violence to the evident intent of the assignor. This action must be dismissed, therefore, for want of service of the writ; and, under the statute, with costs in favor of the person appearing in defence to it.