Charles Carter vs. Jonas L. Sibley, 4 Met. 298

Shaw, C. J. This is an action of trespass, commenced on the 19th of March 1840, against the defendant, as marshal of the district of Massachusetts. The plaintiff claims title to the goods taken, as assignee of Benjamin Foster, jr. of Charles-town, under an assignment made to him, Nov. 8th 1839, pursuant to St. 1836, c. 238, entitled “

an act to regulate the assignment and distribution of the property of insolvent debtors.” The property was attached on mesne process by the defendant, as marshal of the United States, on the 19th of Nov 1839, at the suit of a citizen of another State. It appears by the facts stated, that after the commencement of the present action, the said Foster made application to a master in chancery, for proceedings as an insolvent debtor, under the insolvent law of 1838, c. 163, pursuant to which the plaintiff was appointed assignee.

But this proceeding, manifestly, can have no bearing upon the question, which must be decided upon the facts existing at the time the action was brought It is plain that the issue, in this case, is upon the title of the plaintiff to the goods claimed; and to maintain the action, he must establish his title as assignee under the first assignment. It is immaterial to the decision of this case, whether the defendant rightfully attached these goods or not; if the plaintiff had no title to them, he has no interest in that question.

The title of the plaintiff, derived from an assignment made in 1839, some time after the insolvent law of 1838 went into operation, depends upon the question whether the St. of 1836, c. 238, was in operation at that time, or whether it was not repealed by the St. of 1838, c. 163. The statute of 1836 is not repealed in terms. Whether it is by implication, is the question. The provision of St. 1838, c. 163, § 25, is this : “ All the provisions of law, inconsistent with the provisions of this act, are hereby repealed, saving ” &c.

The plaintiff claims the goods under a statute title, and unless the statute, under which he so claims, is in force, and all its terms are strictly pursued, the property does not pass. It was indeed intimated, in the course of the argument, that this assignment might be good to pass the property, as against the defendant, and the creditor in whose behalf he made the attachment, as a conveyance at common law.

If in fact, it was made upon a good, valuable and adequate consideration, and by an instrument to which creditors having debts equal to, or exceeding the value of the property assigned, had become parties, or otherwise legally assented, it would have been a very different question. But from the terms in which it is described, we understand it to be an assignment to the plaintiff, in trust for creditors, and that the said Foster took the oath, and the assignee gave the notice, required by law.

We therefore understand it to be an assignment made in pursuance of St. 1836, c. 238, and relying upon that statute for its efficacy, and that it was not so made as to be a valid assignment at common law, as adopted and practised in this State ; so that if not made valid, by force of that statute, it was not available against an attaching creditor. Upon the question of repeal, the court are of opinion that so far as the two statutes affect the same class of persons, the latter operates as a repeal of the former.

The statute of 1838, so far as it provided for a voluntary insolvency, on the part of the debtor, by an assignment of his property for the benefit of his creditors, was limited in its application to the case of insolvent debtors, whose debts, in the aggregate, amounted to the sum of five hundred dollars. The latter act, therefore, does not affect the former, in its application to persons whose debts in the aggregate do not amount to five hundred dollars.

But so far as the two statutes affect the same persons, the court are of opinion that it is impossible for both statutes to exist and operate together, so as to leave it at the option of the debtor, to act under the one or the other, at his election ; and therefore that it was the intention of the legislature, by the qualified teims af repeal contained in the latter, to repeal the former.

They are two distinct systems, or series of measures, designed to ac complish substantially the same object, namely, the equal distribution of the property of an insolvent debtor, in such manner that all his creditors should participate equally in the fund, in proportion to the amount of the debts due to them. Each is designed to direct and require certain legal proceedings to be adopted, and, upon a compliance with them, to vest a title to all the property of the debtor in the assignees, by force of the act itself, for the benefit of all creditors, who may come in and prove their debts.

Each does, to some extent, but with different limitations, restrain and prohibit the attachment of the debt- or’s property. Each is a system of insolvent laws. Each extends to the whole subject matter, upon which it acts, namely, the whole of the real and personal estate of the debtor ; so that the action of ■ one necessarily suspends the operation of the other.

And then as the insolvent law of 1838 was later fn point of time ; as it is more thorough and com píete in its provisions ; as it leaves no option with the debtor to proceed upon the one or the other statute, as he may prefer, either in terms, or by implication ; as it is the last authentic declaration of the legislative will, on the same subject; we think the latter, by the qualified clause of repeal, and by necessary implication, supersedes and annuls the former.

Without therefore going more into detail, the court are ol opinion, that as Foster, the debtor, owed more than $ 500 in November 1839, when he made the assignment in question, he was at that time a proper subject for the operation of the insolvent law of 1838, and that the statute of 1836, in pursuance of which he made his assignment, and without the force of which it could not take effect, as against an after attachment, was repealed as to him, and therefore that the plaintiff, claiming under that assignment, cannot maintain this action. Plaintiff nonsuit. Reduced to two hundred dollars by Si. 1841, c. 124, 6 1.