The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-01-18
Supreme Court.
INFORMANT OPINION RY IunaK RnnaEyELr

Supreme Court.
IMPORTANT OPINION BY JUDGE ROOSEVELT
Daniel Beosos Us. Asa Partridge and Thomas Ftssen.
den This is arising ASST ynment creating
preferences for the benefit Of EDITORS species OF in
tie law STILL II confined to the sole purpose Of giving
preference Of creditor another these nstru
ments Valid at least they are not on that ground
void They frequently however, embrace other Objects and
among them Sometimes unlawful advantages to the debt
or The statute accordingly, which t'eats Of fraudulent
and things In action" e 1857 declares that assign
ments made in trust for the Of the person making the
shall bs void against the creditors Of such per-
Now, the assignment which the plaintiff in this
action seeks TO set asde not only creates preferences
things CAS- soon as reasonably practicable with due
gard the ghful interest Of Ill the parties to
into money by saes either public private
judgment Of the said Thomas Fessenden 1.-THE asssnse),
his and be for the best advan
apply tue proceeds 30 IS directed In tie assignment
And The question isAre there in these professionalism
they alone occasion the difficulty trusts which, with
ou doing violence both to the and intent Of the
Legislature be called trusts created for the use
benefit Of the assignors The assignee 1t said by the
and thus In order to obtain an enhAn.sd price, post
IoDe the prompt payment Of the debts, sssuring
the expense Of injurious delay, iegsy imposed up.
the creditor, and to that extent converting the
transactions into nmen the statute
it. made in for the OF the person making the
On careful review Of the provision, can dis
no such object or purpose In IT, Instead Of direct
ing vexAtious, cilatory nursing OF the Assets, IL re-
qurss the to be converted into money with ell reason
able (Which Of course comprehends awfuD despatch.
True. the assignee to have regard TO the interests
OF all ths parties But 1t is to rght.u" which
Of again only bs their lawful interests II,
therefore, Jowtr sell credit be not lawful and
and consequently not rightful III power given.
And should the ssgnee under The farms reasonable and
rgAfu assume to sell ON creeit the court exercising
its chapcery jurisdiction a. the instance OF ia.
jured creditor, II there we're any such, woud
recall him to his duty, and At the same time ad
1Sioh !. uphsrui somstSns aaai, oy the terms o:
the psrumept is conaded t. the afsgnees judgment
As to things In action for instance such notes aud
counts he may sell them or be may collect them which
may in his judgment TO bs most advantageous
But even here b. e restricted to doe regard % the
Jfghtfu interests" Of the creditors Of the asssnor-
SUPPOSE attempting to sell note for cash. he should
and bidders, must he not In that Of necessity
the lawful we'll the rightful interests of The
parties require that he should do SO Besides, it Is
. fund amsntAl rule, in the interpretation o. I'll In.
struments, that where they are susceptible OF two
meanings, f such be the case lawful and the other
not the former to be TAKEN and the latter rejssed
Tho law never gives to an instrument BY Implication
unlawful meaning merely to avoid tt and especially 1t
raises by impcati IN unlawful trust QUICKER
FORE provides that the assignee shall reallz,
reasonably practicable the law will not tresume that
the intention vas that he should p.scr,sa.ss Is long
for the rshtful interests Of all parties, the Law will
not presume that the intention to provide for
the wrongful interests Of the party, at the ex-
psnss Of the rishtful interests OF the other. Again,
It Ii said that the assignment in coatro srsy
T. snoS n pp the
ssme) provision Of the Revised States As question Of
f.st-snd % II: sT expressly declares i saal be
such intent. None indeed Is pretended beyond the
provisions OF the instrument ise Bat those, said
delay and hinder his creditors they do not so strike my
mind And must be remembered that whore delay and
hndranos are rot the purpose but merely the Incidental
Of the exercise Of lawful RICH TO give pre-
ierenoes they not within the meaning Of the statute
Every man. It is true, is presumed to contemplate the
sequences however Which, be they ever 50 obvious and
inevitable, are not the purpose and ntent Of the act
have nothing to do with determining its validity,
mon mortgage Tor Instance, may very much embsrrass
eubsequent Judgment creditor and yet given bona Ade
to iecurs real loan its validity cannot be impsached
lars EACH svDg valuable worth Ave hundred
dollars and mere should sell him to instead OF b.
sou be not on, and n vet
consequence, however and however unfortunate
rot being the intent of the sie would not affect its va
hiy TO render An assignment or transfer void under
either branch Of the statute It must been made in
trust for the ais-that is 9th the promote the
interest or benefit o. the asignoT witch usq.ly
much She came thing t, delay, nsder or defrAud his
credtors b nent In some form 70 the debtor at tbs
expenss 10 some fern, of the creditor h an essential
element No judge, In my view 10 warranted In decarng
instrument void unoer color merely Of these statu
tory provisiops when in ruth his only ooj,ction II
ferenal assg am.nts. That hostility, however wise and
however natural TO equitable miad has or should |
have, place the N, ln proper Arera Is tne
senate chamber AN effort In tina. quarter TO |
repeal the law legitimate and may even be |
o6mmendAbe; but, on the bench, attempts TO nully |
disasefu laws however catering 10 the natural love OF
power hardly be reconcilsd with constitute onAl
system Of govern ment BuYdck Post IL Barb 1853;
Kavitt vs. Nicholson, Seldom not yet publshed) ex
cept, Of course from this remark, laws which are dn
tasteful TO the judiciary because their passsgsa very
oocurrenoe-has been procured BY deception prac
tied upon the Legislature such Awsit is not only the
right but In de.erenoe 70 the legislative department IT.
self, the duty Of the bench TO nulify Bot when rule
Of law has been clearly and fairly declared By statute or
clearly and fairly established BY long, unform course
Of judicial eecisions scquiesced In the legislature u
not competent to the bench TO disregard It. which
10 worse 70 frter u away By false logic Aad technical
ubtletes. Preferential assignments perhaps are an ev
evil Am not certain that It competent to the court
even to say that these sssgnments evil They
been the law Of this State for than ATTY pears
declared from the bench, recognizes rot facility bat
occasions expressly BY the Legislature,
and scted In every department business
and ~ every class in the community. Under such cir.
cumstances Judge, although Individually opposed to the
principle has right ofRcialy 10 undsrmias It. Hs
province Ia to execute, not TO repeal the Law.
The only question thsn In already observed was the
assignment Partridge to Fessesdep With the nsa.
either to delay TO defrAud the creditors Of Partridge
or TO benefit TO himself at their expsnsef No
such intent IL proved dliund and nons In my Judgment,
appears the face OF the instrument be inferred
from n provisions.
The complaint must therefore b dismissed.
Ohafuarv.