89 Pa. 514 | Pa. | 1879
delivered the opinion of the court, May 7th 1879.
This was an appeal by trustees under a writ of domestic attachment from the decree of the court below, dismissing the exceptions and confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees. The auditor and the court below surcharged the appellants with the sum of $1516.58, being the entire proceeds of a sheriff’s, sale of certain personal property of the defendant in said attachment, which had been levied upon and sold under a writ of fieri facias. It appeared that the writ of domestic attachment was issued against John J. Shalleross & Co., upon an affidavit charging' that John J. Shalleross had absconded, &c. This writ was received by the sheriff at 2.10 p. m., on the 23d of July 1875, and at 3 P. m., of the same day, the sheriff received the writ of fieri facias above mentioned, which was issued by Henry Gr. Thomas, upon a judgment which had been previously confessed by Shalleross. The sheriff attached and levied under both writs the stock of goods in a store at Coatesville, conducted under the firm name of John J. Shalleross & Co., and also all the personal property on a farm near Coatesville, conducted in the name of John J. Shalleross individually, but the title to which was alleged to be in the said Shalleross and one Frederick Schulemeister. A dispute arose between the trustees and the execution-creditor in regard to the legal effect of the seizure of the said property upon rheir respective writs, and, under the advice of counsel, a compromise Avas effected, and an agreement entered into betAveen the counsel of the trustees and the counsel of the execution-creditor, whereby it was agreed that the trustees should take the store property, and the execution-creditor should take the farm and
No opinion was filed by the learned judge, and we are therefore obliged to look to the report of the auditor alone for the reasons upon which this ruling is based. Briefly stated they are that trustees, under a domestic attachment,' are purely ministerial officers; that they have no discretionary powers ; no right to make compromises and settle controversies. The learned auditor says : “ They had no more authority to compromise a dispute as to the right of property, because they thought it would be for the benefit of creditors, than would the sheriff have had whilst the goods were in his custody, if he had been of the same opinion; or as to goods taken in execution, if he thought it for the benefit of the execution. The auditor is therefore of the opinion that the trustees are chargeable with the portion of the goods seized by the sheriff which they gave up to him to be sold under Thomas’s execution. The sales of the sheriff amounted to $1516.58.”
We think the auditor was clearly right in holding that the trustees made a mistake in relinquishing their claim to the property sold under the fieri facias. It is true there was no duty upon them to give a bond under the sheriff’s interpleader. Nor do I see how the court could have compelled them to do so. But they might and ought to have applied to the court for relief. The attachment being prior in point of time, the property was in gremio legis, and in a proper case the court would make such order as might be necessary for the protection of all the interests involved: Robinson v. Atlantic and Great Western Railway Co., 16 P. F. Smith 160. But the conclusion of the learned auditor that the trustees are necessarily liable to be surcharged with the proceeds of the sheriff’s sale is not so satisfactory. His argument that trustees under a domestic attachment are ministerial officers without discretion, like a sheriff, rests in a great measure upon the case of McCready v. The Guardians of the Poor, 9 S. & R. 94. That case, however, is not authority for such a doctrine. It is true it was said by Justice Duncan in delivering the opinion of the court, referring to trustees under a domestic attachment: “ These men are not judicial officers, but are ministeral officers of justice.” The point decided in that case was, that in an action of trespass, or trover, by two or three trustees under such attachment, the court after verdict will presume that all three were appointed and qualified, and that one is since dead. As this case
There is a line of authorities AYhich hold that trustees who have acted in good faith, and under the advice of counsel, are not responsible for a mere error of judgment, or a mistake of law. It is sufficient to refer to King v. Morrison, 1 P. & W. 188 ; During, King and Miller’s Appeals, 1 Harris 224; Neff’s Appeal, 7 P.
We are of opinion that the case in hand comes within the principle laid down in the authorities referred to, and that it was error to surcharge the appellants with the proceeds of the sheriff’s sale. It is easy now to see how the mistake in question might have been avoided. It might not have been so easy at the time it occurred. It certainly was not so to the trustees. Acting in good faith and in the strict line of their duty they sought the advice of respectable and experienced counsel. It would be harsh as well as unjust to hold them responsible for his error of judgment, and the law does not require us to do so.
The decree is reversed, at the costs of the appellees, and distribution ordered in accordance with the principles of this opinion.