Stewart v. M'Minn , 5 Watts & Serg. 100 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

The assignment, not being recorded within thirty days, was null and void, as against creditors, by the 5th section of the Act of 24th March 1818. Funds remained in the hands of the assignees at the time of the attachment, not paid over, consisting of money in hand $109.31, and debts to the assignees as such, not collected, $1361.14: the rest they had paid over to creditors under the assignment. The 35th section of the Act of the 16th June 1836, relating to executions, authorizes an attachment of execution to be levied on any debt due by the defendant, or money deposited by him; and the question is, whether these funds fall within the provisions of the Act. Although the assignment is null and void against creditors, yet it is good as between the assignor and assignees: the assignor, therefore, not being able to demand the funds, they are not, it is contended, a debt due to him. If we are bound down to the rigid letter of the Act, this position may, perhaps, be true. But we think we must look at the spirit of the Act giving the attachment, and endeavour to effectuate its design and object: and-these were to enable creditors to reach funds belonging to the debtor which could not be seized on a jfieri facias, but were in the hands of a third person, such as debts and other choses in action, goods pawned, &c.; and that for the benefit of the creditors, and to give them a remedy, the funds in hand or uncollected may be considered as debts due to the assignor. Indeed, if it were not so the creditors would not be able to reach them, and the assignment would, so far, be rendered valid as to creditors, notwithstanding the express enactment of the law to the contrary. In Flanagin v. Wetherill, (5 Whart. 280), moneys in the hands of assignees held under an assignment which became void by not being duly recorded, were- levied on by foreign attachment at the suit of a creditor, as the property of the assignor; being so treated as respected the creditors; and on the same prim ciple these funds may, for the benefit of the creditors, be treated as debts due to the assignor. We are, therefore, of opinion that the money in the hands of the garnishees ($109.31), as well as the debts due to them ($1361.14), were subject to this attachment; and that judgment should be rendered against them for the amount of the plaintiff’s judgment with interest and costs, tobe discharged from the moneys in their hands and from the moneys received or coming into their hands from the debts.

As to the moneys paid over to creditors under the assignment before the attachment, we think they are not chargeable, it being done before the attaching creditors obtained a lien or took measures which legally arrested the proceedings of the assignees. Acts done and completed under the assignment could not be revoked, nor the assignees made liable for proceeding in the regular discharge of what, so far as appeared, was their duty.

Judgment reversed, and judgment for the plaintiff accordingly.