Bank of North America ex rel. Swift v. M'Call, 3 Binn. 338

Bank of North America ex rel. Swift v. M'Call

3 Binn. 338 | Pa. | 1811

Tilghman C. J.

delivered the court’s opinion.

The first exception in this case,' is founded in matter of fact. The arbitrators have been examined, and it appears that this exception has not been supported.

In the second exception two points of law are involved. fohn W. Swift had claims in two distinct rights: one as surviving partner of George Plumstead-, the other by virtue of *341an assignment from the Bank of North America, who had received an assignment from Plumstead in his life. Before' the defendant laid the attachment in St. Domingo, he had received notice of Swift’s claim, as surviving partner; but he had received no notice of the claim of the Bank. It is evident that the claim in his own right stands on much stronger ground than that derived from the bank. Accordingly the defendant’s counsel, although they have urged serious objections against the assignment from the bank, have yet admitted that the defendant, having laid the attachment after notice of Swift’s right as surviving partner, is responsible to Swift for the money recovered on the attachment, to the amount of the balance due to him from the partnership. Now this precludes the necessity of going into the claim derived from the Bank, because it appears from the proof made before the arbitrators, that the balance due to Swift from the partnership exceeds the sum awarded to him. We are therefore of opinion that the defendant has failed in all his exceptions.

Award confirmed.

A doubt having been afterwards expressed by the defendant’s counsel, whether the amount of Swift’s claim against the partnership was equal to the sum awarded, the court recommitted the report to the same referees to ascertain the amount of Swift’s lien on the partnership stock, and directed judgment to be entered for it in vacation upon the return of the award.