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2 Mass. 375

Jones v. Gorham

Massachusetts Supreme Judicial Court

Decided March 15, 1807

Massachusetts Supreme Judicial Court · decided 1807-03-15

<p>The only question m this case was, whether Williams was the rustee of Gorham at the time of his being summoned. By his answer to the usual interrogatory it appeared that, before the service of the summons, W. had been appointed sole assignee of one Samuel Rogers, a bankrupt, who at the time of his bankruptcy was indebted to Gorham in 9069 dollars 78 cents, on two negotiable promissory notes. A first dividend was ordered December 5, 1803, and Gorhams proportion of it was soon after paid to him. The second dividend, of which G.’s proportion was 450 dollars, was ordered on the ninth day of July, 1805. But previously to that time, viz., on the 18th day of October, 1804, W. had advanced the amount of that dividend to G., taking his promissory note for the same sum, payable three days before such second dividend should be ordered, * with lawful interest; and on • the 23d day [ * 376 ] of January, 1805, G. signed a memorandum on the back of the said note, declaring that the intention of the parties was that the said 450 dollars, and interest, should be applied towards the said second dividend, and expressly agreeing that they should be so applied. The amount due on the note exceeded the amount of G.’s dividend.</p> <p>On the same 23d of January, 1805, W., at the request of G., signed a memorandum upon each of Rogers’s notes to G. of the following tenor, viz.: “ Boston, January 23d, 1805. I will be accountable to bearer of this note, for the benefit of the creditors of S. G., in proportion to their respective demands on him, for such dividend thereof as may hereafter be decreed by the commissioners on the within-named R.’s estate, to be paid by me as his assignee , the sum I have paid on account of the second dividend, and interest, to be first deducted.” W. has since been informed, and believes, that those notes have been delivered to Messrs. D. D. Rogers, J. Lee, and S'. Brown, agents of S'. G.'s creditors, and are still in theii possession.</p> <p>No further dividend has yet been made or ordered by the com missioned on R.’s estate, but W. has received moneys, and has claims as assignee, which will probably form a dividend equal to the second.</p> <p>W. then goes on to state that G., on the 27th day of February, 1805, by an indenture made between him and divers of his creditors, conveyed to said creditors certain property, debts, and effects, (including the debt originally due from Rogers, the bankrupt,) in full discharge of their demands upon him.t</p> <p>Williams was summoned, as the trustee of Gorham in this action, on the 25th day of January, 1805.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1807-03-15

How this case has been cited

Cited by 6 later decisions — most recently July 1943

5 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The opinion of the Court was afterwards delivered by

Sedgwick, J.,

¶2who, after stating the principal facts contained in the answer of Williams,' including his information and belief of the assignment and delivery by Gorham of Rogers’s notes to Messrs. Rogers, Lee, and Brotan, observed that neither of these last facts is important in determining the case on the ground on which it is placed by the arguments of the counsel for Mr. Williams. They say that by his undertaking, expressed in his endorsement on the back of those notes, they became assignable, according to the cases cited from Blackstone and Espinasse, so as to authorize the assignee to support an action in his own name ; and that, from the time they were so assignable, they became negotiable securities, and by the statute exempted from the process in this case.

Hall for the plaintiff. Otis and C. Jackson for the trustee.

¶3[ *379 ] *If every thing laid down in the cases of Fenner vs. Meares, and Surtees vs. Hubbard, be good law, I do not think they conclude to the purpose intended by the counsel of Mr. Williams. “ Credits” generally are attachable. That the expected dividend was such a credit as might have been attached, is not denied ; but it is said, that the endorsement of Williams is such, that it brings the future dividend, as a credit in his hands, within the exemption expressed in the twelfth section of the act. That section is in these words — “ that no person shall be considered or adjudged to be a trustee, within the intent and meaning of this act, by reason or on account of his having made, given, endorsed, negotiated, or accepted, any negotiable security whatever.” I am of opinion that it was the intention of the legislature to exempt only those negotiable securities, which were made such in their original construction. There is the strongest reason why they should be exempted. They are in their nature commercial, and their facile and secure passing from man to man, as a medium of exchange, is of great public utility. But if they were rendered subject to this process, their credit must be materially injured, if not ruined. Besides, the words “ made, given, endorsed, negotiated, or accepted,” seem to apply with peculiar propriety to this species of contract.

¶4It was said by one of the counsel for Mr. Williams, that the notes from the bankrupt were negotiable, and, therefore, within the twelfth section of the act. It is to be observed, in answer to this objection, that the obligation of Williams to pay Gorham the dividend is noi from his having “made, given, endorsed, negotiated, or accepted,” the notes; but from moneys coming into his hands belonging to the estate of the bankrupt.

¶5In this view of the case, it is not important to determine the question made by the plaintiff’s counsel whether a debtor can, by an assignment for the use of his creditors generally, protect his property against one of his creditors, who did not assent to the assignment. The discussion of that question might require extensive investigation!

¶6We are of opinion that Williams must be adjudged the trusteo of the defendant. (a)

¶7 Vide Oliver vs. Smith & Al. 5 Mass. Rep. 103.
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