The Portland daily press., 1880-12-31
IMPORTANT OPINION,
The Old Assignment Law Practically Re-
pealed by the Insolvent Law Of 1878.

Charles ii. smith in equity VS.. John NJ Su
livan & ais.
DANFoRTH, j.
This is a bill in equity, to which demurre
has been filed, the object of which is to ge
possession of certain property or its proceeds
fraudulent purposes by two of the defendants
Coombs and Parker assisted by the others
From the allegations In the bill it appears tina
on May 81, 1879, the copartnership then exist
ing between John M. Sullivan and ALFRED
Jones was dissolved under an agreement b.
which Jones received all the partnership as
sets and agreed to assume all the partnership
liabilities; that on June 4, 1879 Jones made al
assignment under the law found in R. S., ch
20, for the benefit of his creditors, to the de
PENDANTS, Coombs and Parker. Under this as
signment Coombs and Parker obtained posses
sion OF the partnership assets of Sullivan ant
Jones, which is the property claimed by tht
plaintiff In his bill. 1t further appears tina
on July IL, 1879, Sullivan filed in the Insol
vent Court in the county of Penobscot his pc
tition that the partnership previously existing
between himself and Jones might be declared
insolvent, and on the 26th of the same JULY
the said Sullivan and Jones, individually ane
as copartners, were adjudged insolyent b1
said court, and on the 9th of August follow
Ing the plaintiff was chosen and qualified az
assignee and received from the Judge an MS
slgnment OF the individual and partnership
estate OF Sullivan and Jones.
l
fraud, we have here presented the question Of
| title between these parties
tne GeIendantS claim by prior assignment
under II. s., ch. 70. The plaintiff by subse-
auent one under the insolvent law of 1875 If
the prior law is in force the defendants title
Is good, unless vitiated by fraud If that law
mas been repealed as far as it relates to insol-
vents, then they have no title and it will be
necessary to inquire into the effect of the al
legations OF fraud
l There ia no Ia uub oh +o..~.,
prior act relating to assignments if, therefore.
l lt Is not now i'll force it must be because it is
repealed by implication. There are two
grounds upon which an existing statute may
oe thus repealed; when the later one covers
the whole subject matter of the former, espe-
clally when additional remedies or penalties
are added, and when the later one is incon.
sstent with, or repugnanJ to the former.
| When either of these conditions are
cred as decarative of the viii of
esat 5SsgePs & has
y sary Knight v. Aroostook Railroad, Ct Me-
29l; Littlefield " Paul, 50 ib. 527; Garter v.
Slbley, Met. 29S; Morris v. Crooker, 13
1t is not now necessary that we should
decide whether the former act is entirely re-
pealed SO as to be of no force whatever That
is entitled Assignment for the benefit of
creditors" The act of 1878 relates to in
solvents only If therefore debtor who is not
insolvent chooses for any reason to make an
assignment for the benefit of such of his
creditors as may be willing to become a party
70 IL, we have no occasion to say the law will
not enforce 1t. But in this case the owner of
the goods in question has been adjudged an in
solvent by the legally constituted tribunal
Inc question then is whether 80 far as in
solvent debtors are concerned the two laws
embrace the same subject matter. By the ex-
press terms of the assignment law its object
and purpose is TO provide for an equal dis
trlbution of all the debtors property among
sucn OF his creditors as become parties and ali
tne provisions necessary to accomplish that
object are made part of the law The act of
1878 has in view the same purpose including
all the creditors with certain exceptions, with
SUCH provisions Tor its Operation as are suffi-
Gent to make it complete in itself. 1t en-
braces all the provisions of the former with
more detail and additional remedies and
penalties.
But in addition to this, the act of 1878 ia so
inconsistent with and repugnant to the former
statute that the two cannot have their "defi-
mite mode and scope of operation without the
slightest conflict with each other'
Ihere must be conflict from the beginning
and all the way through. In the one the
debtor on his own motion makes his assign-
ment aud chooses his own assignee. In the
other the court adjudicates as to the insolvency
and the creditors choose the assignee. Tho
duties OF these different assignees are in
direct conflict.
The one is under the more immediate direc-
tlon OF the court, with no control over tho
amount OF Indebtedness to be allowed, but te,
distribute the assets as required in payment of
such as Is allowed. The other acting with
more independence, himself, in the first in
stance, the tribunal before whom the debts are
to be proved, and distributing the property
among such creditors only as become parties to
the assignment
But, without further discussion of the de-
talls OF the Two statutes, a cursory reading OF
which is sufficient to show the entire incon.
sistency OF the proceedings under one with
those OF the other, the control of the property
alone is decisive. 1t cannot be in each so as
to be administered in accordance with each
law at the same time. Nor is it sufficient to
say, as IN the argument, that the first assign
ment takes precedence and leaves for distribu-
tlon by the subsequent assignee only the
after acquired property. The act of 1878 is alb
solute and unconditional in its terms. 1t not
only gives the assignee authority but requires
MIN TO take possess on of all the debtors as
sets to be administered upon, and disposed of
In accordance with its terms. Take the prop
erty In question in this case, it would clearly be
assets under the insolvent law but for the pre-
vious assignment But that assignment makes
1t no less assets to pay all the debts. Still, if
the prior assignee is to retain it, the require
ment OF this fundamental principle OF the act
OF 1878, with all the provisions growing out of
it, are made of no effect. IT, then, the assign
ment law is to remain in force, it will enable
the debtor at his option to render of no effect
the plain and unqualified provisions Of the in
solvent law and take from his creditors proper
ty which belong to them, or compel them to
become parties to his assignment, which would
legally deprive them of remedies and penal
ties provided for their benefit We no where
IN the law lind any ground for supposing such
to have been the intention of the legislature.
The argument founded upon the clause, Eek
cept where it is otherwise specially provided"
in Sect. l of the act of 1878, cannot avail.
This in no respect limits the force or applica-
tion OF the law, but refers only to the iursdic-
tion OF the Court. That is to have origin al
jurisdiction unless otherwise specially provided
But II it were not so the result must be the
same. The assignment law is not a special
provision relating to any particular person or
class, as is that which provides for insolvent
insurance companies or for persons under
guardianship, but is general in its application,
as much SO as is the act of 1878, embracing in
its provisions the same persons, and is coexten-
save with it. If, therefore, it was excepted by
virtue Of this clause nothing would be left
upon which the later law could operate. This
cannot be supposed to be the intention of the
legislature.
We are thus necessarily brought to the con-
cluson that the assignment law, so far as it re-
lates to lnsolvent persons, is repealed by the
act of 1878, and that Coombs and Parker, in
dependent of any charges of fraud, take moth
ing by virtue of the assignment of Jones to
them. Hence whatever claim the plaintiff
may nave upon them, or their associates, is one
for damage for wrongful conversion, or an ac-
ton OF replevin for the property itself. In
either case the remedy at law would seem to
be plain and adequate to secure whatever rights
he has.
1t is true that by sec. II of the act of 1878,
chap. "a, as amended by sec. 3, chap. 154, of
the acts of 1879, "the Supreme Judicial Court
shall have full equity Jurisdiction in all mat
ters arising under thit act;;'' which powers
may be exercised n in term time or
vacation upon bills, summary petitions or
other proper process" This clause refers to
cases involving the rights of the assignee,
debtor and creditor as between themselves in
the management and distribution of the assets
These persons are parties to the proceedings
from the beginning, SO much SO that they may
be liable to be brought in upon summary pro-
ceedlngs upon any proper process. The claim
involved in this case is one against outside par
ties, who can be compelled to answer only up
on ordinary process such as is known to the
law, regulating proceedings in court. 1t is
provided for in sec. 80, which gives the as
slgnee power to maintain in his own name
all suits at law and in equity for the recovery
and preservation of the insolvent estate" leav-
ing it to the general principles applicable to
decide whether his remedy shall be in law or
in equity. In this case, whatever remedy he
has is clearly at law. Smith V. Mason, IA
Wallace, 419, Marshall v. Knox 16 Ib. 551
nr 90 Jo vrf ,1zu Al.