George Beach, Plaintiff In Error v. Jonathan Viles Et Al Defendants In Error

• Decision Date: 01 January 1829
• Citation: 2 Pet. 675,7 L.Ed. 559,27 U.S. 675
• Parties: GEORGE BEACH, PLAINTIFF IN ERROR v. JONATHAN VILES ET AL. DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

27 U.S. 675

2 Pet. 675

7 L.Ed. 559

GEORGE BEACH, PLAINTIFF IN ERROR v. JONATHAN VILES ET AL. DEFENDANTS IN ERROR.

January Term, 1829

ERROR to the circuit court of the United States, for the district of Massachusetts.

The original process in this case was founded on the statute of Massachusetts, passed 28th of February 1795, entitled 'an act to enable creditors to receive their just demands out of the goods, effects, and credits of their debtors, when the same cannot be attached by the ordinary process of law.' In said process it is alleged that Loud and Hunt, being indebted to George Beach, as set forth in the process, refused to pay the same, to his damage $4000; and in the process it is also alleged that Loud and Hunt had not in their own hands and possession, goods or estate to the value of $4000, but had entrusted and deposited in the hands of said defendants, goods, effects and credits to the value; and the said defendants were summoned to show cause why execution to be issued on such judgment as George Beach might recover in said suit against Loud and Hunt, should not issue against their goods, effects and credits in the hands and possession of these defendants. The process was dated the 21st day November 1826; service was made on the 23d of the same month, and it was entered at the May term of the circuit court of the United States, in Boston, in 1827.

The defendants, the supposed trustees, appeared, and severally answered under oath, as set forth in the record. From their answers it appears, that, on the 15th day of December 1825, an indenture of assignment was made, which is also set forth in the record, in which Loud and Hunt were parties of the first part; Nathan Viles, Henry Atkins and Daniel Holbrook, preferred creditors, were parties of the second part; and sundry other persons creditors of Loud and Hunt, who might execute the indenture within six months from its date, were parties of the third part.

By this indenture Loud and Hunt assigned to the defendants certain real and personal property, effects and demands, in trust, to sell and collect the same, and after defraying all expenses, first, to pay the parties of the second part all sums due them respectively, and all sums for which they were liable on account of Loud and Hunt, as indorsers or otherwise; second, to pay the residue to such creditors mentioned in the schedule thereto annexed, as should become parties, in proportion to their demands, by an equal rate per dollar; third, to pay over the surplus, if any, and also the dividend which would have been payable to any creditor, if he had not neglected to become a party thereto, to Loud and Hunt.

There is a clause in the indenture, providing for adding to and perfecting the schedules, to carry into effect the intentions of the parties, a general power to receive and collect, and a clause accepting the property assigned in full; and each assignee is to be answerable for his own acts only.

The nominal amount or estimate of the property assigned exceeded the amount of debts and liabilities of the assignees; but by reason of losses on property then in hands of certain consignees, and bad debts, the produce thereof fell much short of it.

The just claims of those creditors who became parties to the indenture according to its terms, and before the process in this case was served, amount to about $20,000. The parties of the first and second part, and nearly all those of the third part, signed and sealed the indenture on the day of its date, and all who are now parties, became so...