Embry & Fisher v. Clapp

Supreme Court of Georgia

Embry & Fisher v. Clapp

38 Ga. 245

DecidedDecember 15, 1868

StatusPublished

This text of 38 Ga. 245 (Embry & Fisher v. Clapp) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Embry & Fisher v. Clapp, 38 Ga. 245 (Ga. 1868).

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Opinion

Warner, J.

There was a motion made in the Court below for a new trial, upon two grounds: First, that the Court erred in charging the jury, that an insolvent debtor might, under the laws of this State, prefer one creditor, by a deed of assignment-in trust, for the benefit of some to the exclusion of others. Second, because the verdict was contrary to law and the evidence. The Court overruled the motion for a new trial, which is now assigned for error here.

Was the charge of the Court right? How stood the old' law upon the question of assignments by insolvent debtors, prior to the Act of 1865-6, now incorporated in the new Code? By the 1954th section of the old Code, an assignment by an insolvent debtor of his property, in trust for the benefit of any one or more of his creditors, to the exclusion of any other creditor, in equal participation of such property, was declared to be void. By the 1942d section of the new Code, only such assignments of property by an insolvent debtor are declared void, where any trust or benefit is reserved to the assignor, or any person for him.' Why was an assignment made by an insolvent debtor of his property to one creditor, to the exclusion of others, void ? Because the old law declared it should be so. Why is not such an assignment void now ? Because, the law, as it now stands, does -not declare that it shall be so. Construing the 1943d section of the new Code, and the 1942d section, together, as being, in pari materia, the intention of the Legislature, we think, is quite plain, that an insolvent debtor may make an assignment of his property in trust, for the benefit of one or more of his creditors, to the exclusion of others, so that it is don e bona fide, and no trust or benefit be reserved to the assignor, or any person for him. There was no error in the charge of the Court upon this point in the case.

The jury having found the assignment to have been bona [250]*250fide under the evidence submitted on the trial, and. the Court below being satisfied with the verdict, we will not disturb it by ordering a new trial.

Let the judgment of the Court below be affirmed.

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Warner, J.

There was a motion made in the Court below for a new trial, upon two grounds: First, that the Court erred in charging the jury, that an insolvent debtor might, under the laws of this State, prefer one creditor, by a deed of assignment-in trust, for the benefit of some to the exclusion of others. Second, because the verdict was contrary to law and the evidence. The Court overruled the motion for a new trial, which is now assigned for error here.

Was the charge of the Court right? How stood the old' law upon the question of assignments by insolvent debtors, prior to the Act of 1865-6, now incorporated in the new Code? By the 1954th section of the old Code, an assignment by an insolvent debtor of his property, in trust for the benefit of any one or more of his creditors, to the exclusion of any other creditor, in equal participation of such property, was declared to be void. By the 1942d section of the new Code, only such assignments of property by an insolvent debtor are declared void, where any trust or benefit is reserved to the assignor, or any person for him.' Why was an assignment made by an insolvent debtor of his property to one creditor, to the exclusion of others, void ? Because the old law declared it should be so. Why is not such an assignment void now ? Because, the law, as it now stands, does -not declare that it shall be so. Construing the 1943d section of the new Code, and the 1942d section, together, as being, in pari materia, the intention of the Legislature, we think, is quite plain, that an insolvent debtor may make an assignment of his property in trust, for the benefit of one or more of his creditors, to the exclusion of others, so that it is don e bona fide, and no trust or benefit be reserved to the assignor, or any person for him. There was no error in the charge of the Court upon this point in the case.

The jury having found the assignment to have been bona [250]*250fide under the evidence submitted on the trial, and. the Court below being satisfied with the verdict, we will not disturb it by ordering a new trial.

Let the judgment of the Court below be affirmed.

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Bluebook (online)

38 Ga. 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/embry-fisher-v-clapp-ga-1868.