Clarke v. Chase

5 F. Cas. 942

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 1, 1856
• Status: Published

Opinion

CURTIS, Circuit Justice.

Tlie first question is, whether the title made by Chase to Butts, by the voluntary assignment for the benefit of creditors, can prevail over the attachment. It is admitted at the bar that it is settled law in the supreme court of' Massachusetts, that the assignment could not prevail over the attachment. The cases of Ingraham v. Geyer, 18 Mass. 146, and Zipcey v. Thompson, 1 Gray, 243, and Edwards v. Mitchell, Id. 239, are decisive on this subject And if the attachment was valid by the laws of Massachusetts, the express words of the twelfth section of the judiciary act, under which this suit was removed to this court, make that attachment equally valid here. Its language is: “And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached, to answer to final judgment, in the same manner as by the laws of such state they would have been holden to answer the final judgment, had it been rendered by the court in which the suit commenced.” I have been referred to the decision of Mr. Justice Grier, in Gaskie v. Webster [Case No. 2,500]. But this is purely a question of the local law of Massachusetts, and that being settled, the judiciary act requires me to administer it precisely as it would have been administered in the supreme court of Massachusetts, if the suit had not been thence removed.

The next question is, whether the consolidation of the debt, as security for which the $2,-500 was made payable to Chase, and the giving of a promissory note secured by a mortgage to Butts, the assignee, put an end to any attachable interest of Chase, the assignor. As respects any title acquired by Butts, as assignee, by means of this transaction, it is open to precisely the same objection as his original title under the deed of assignment; for it was but a mode of perfecting that same title. Nor can it be maintained that what was thus done amounted to a payment of the debt for which the $2,500 stood as security, and so released that security. It is not alleged that the new note was negotiable; and if it were, the taking of a negotiable note is not presumptive evidence of payment in Rhode Island; and there is no allegation that it was intended as a payment. The old evidences of debt were relinquished; but there was no reason for retaining them after the debts they evidenced had been consolidated, and new evidence of the liquidated sum given.

Neither can it be maintained that the discharge of the mortgage by the assignee after the service of the trustee process destroyed the attachment. The plaintiffs’ title depends on the state of things existing when the attachment was made. Chase was the legal owner of this sum of money, which was absolutely due to him. If he had received it, so much of his claim against Barns would have been paid. In contemplation of law, as between him and Parks, Chase does receive it when it is appropriated oy law to pay the debt due to the plaintiffs. And while the plaintiffs are seeking for this appropriation, and the money is sequestered, it would not be competent for Chase and Parks to defeat Chase’s title. And what Chase and Parks cannot do to this effect, Butts, or his assignee, and Parks cannot do.

It inflicts no injury oni Parks, and deprives him of no right to require him to consider the $2,500 in the hands of the insurance company as so much money already paid by him; and to hold that if he chooses to pay that sum to Chase or his representative, it is a voluntary payment so far as the rights of the plaintiffs are concerned. It is a voluntary payment; for while this process is pending Parks could not be compelled to pay; nor would he be allowed in any event to lose anything by force of this attachment I hold the trustee chargeable.