8 Mo. 313 | Mo. | 1843
delivered the opinion of the Court.
H. Raisin & Co. made an assignment of their effects, for the benefit of their creditors, to the appellant, Blair. The effects assigned were insuificient to pay all his debts. The appellee, the State Bank of Illinois, was the holder of two bills of exchange on Raisin & Co., the endorsers of which were preferred creditors under the assignment. Blair, the assignee, declared a dividend of the assets amongst the preferred creditors, of twenty-five per cent, upon their respective claims. The State Bank of Illinois having failed, its notes in circulation were forty-four per cent, below par. An action of assumpsit was instituted by the Bank against Blair. The declaration contained the common counts, and the,parties having agreed upon the foregoing statement of facts, they made the right of the plaintiff to recover dependent on the solution of the question, whether Blair, the assignee, could buy the notes of the State Bank of Illinois, and with them pay the dividend due the Bank, carrying the profits arising from the transaction into the general fund, for distribution amongst the creditors at large. The court below rendered judgment for tire Bank, from which Blair has appealed to this Court.
If Blair wished to know whether the notes of the Bank could have been used as a set-off to the action against him, we know of no other mode by which it could be ascertained, than by pleading them by way of set-off. But we cannot see the object in raising this question. Raisin & Co.’s effects were insuificient to pay all their debts. The agreed case admits, that the endorsers of the bills of exchange were preferred creditors under the assignment; that is, we suppose, were to have the debts for which they were liable paid before the other creditors. Now, if Blair should have purchased the paper of the Bank, and with it have paid her dividend under the assignment, and carried the profits into the trust fund, would not those profits have rightly belonged to the Bank, standing in the place of the preferred creditors ? Twenty-five per cent, of the amount of the bills of exchange, converted into Bank paper at forty-four per cent, discount, would not have paid the bills, and until the Bank had been paid, at least in her own paper, she being a preferred creditor, a question as to the legality of the conversion of the funds into Bank-paper could not well arise between her and the other creditors, — -that is, should not all the money, acqruing under the assignment, be first applied to the satisfaction of the preferred creditors.
But be these matters as they may, we do not feel ourselves at liberty to entertain questions presented in the manner in which this is done. The parties to a suit at law or equity may agree on the facts of a case, and suffer the court to declare the law arising on those facts, but to agree on facts not in the cause, and under pretence of a suit at law, to obtain the opinion of this Court on matters wholly disconnected with the suit, cannot be tolerated. Here we are called upon, in an .action of assumpsit, to declare the law governing the conduct of a trustee in the management of the trust-fund, a duty peculiarly the province of a court of equity, which, with unrestrained freedom, takes a whole transaction into consideration, from the beginning to the end, giving attention to every circumstance which can in any wise effect its opinion. Tjhe straight-laced proceedings of a court of law
Appeal dismissed.
