I consider the assignment under which the plaintiff claimed the goods, in controversy in this case, fraudulent and void, on account of the trust in favor of the assignee for the payment to him of a reasonable counsel fee, in addition to all the just and reasonable expenses, costs, charges and commissions of executing and carrying the assignment into effect; and I concur in the views of the Supreme Court, contained in the opinion of Mr. Justice PARKER, upon the denial of the motion for a new trial.
It is not stated positively in the assignment, nor does it seem to have been proved at the trial, that the plaintiff was an attorney or counselor-at-law. I find, however, that he was a preferred creditor, under the assignment, for certain professional services, which shows that he belonged to one of the learned professions; and this, taken in connection with the provision in his favor for a counsel fee, a term descriptive of the compensation of a lawyer, makes it sufficiently clear that he was a member of the legal profession. We have, then, the case of an insolvent person conveying all his property to a lawyer, upon a trust to pay out of its proceeds all proper expenses, to pay commissions, which, in the absence of any controlling words, would mean such commissions as executors, administrators and other trustees are entitled to, and, in addition to this, a counsel fee. The services which an assignee of an insolvent debtor is required *Page 27 to perform are not necessarily professional. In general, they are very much such as a sheriff would have to perform under an execution. If a lawyer is called upon to perform such duties, and the deed under which he acts promises to recompense him by a counsel fee, the employment becomes professional, and he would have a right to claim such a measure of compensation as would be paid to a lawyer for the like occupation of his time and attention. An insolvent debtor has not, in my opinion, any right to create such an expensive agency for the conversion of his property into money and distributing it among his creditors. Besides being wrong in principle, it is calculated to lead to obvious abuses. This objection to the assignment is condemned by the third proposition of the opinion of the court in Barney v.Griffin (2 Comst., 365). I observe that Judge BRONSON remarked that the objection, standing alone, might not go beyond the excess of commissions. I am of opinion that if the assignment is adjudged to be valid the assignee cannot be compelled to account except according to its provisions. If therefore the allowance of a counsel fee is illegal as to creditors, the only way in which their rights can be vindicated is to declare the instrument void. Whether the assignee, in the absence of such a provision, might lawfully claim and receive compensation for services actually rendered by him as counsel is a different question, which does not arise in this case.
I am in favor of affirming the judgment of the Supreme Court.
All of the judges concurring, except COMSTOCK and PRATT, Js.,
Judgment affirmed. *Page 28