Hagedon v. Bank of Wisconsin

1 Pin. 61 | Wis. | 1839

Miller, J.

This case was brought up by writ of error to reverse the order of the district court of Brown county, rHs-missing an attachment that had been sued out of said court b j Luther Hagedon, this plaintiff, against the Bank of Wisconsin. The facts in the case were these. In May, 1839, an injunction had been issued out of the court of chancery of Brown county, and served on said bank. On the sixteenth day of November, of the same year, the judge of the said court at chambers, appointed Rufus Parks, Esq., to be the receiver of the effects of said bank, for the benefit of the creditors of said bank, and on the same day his bond, with security, conditioned to discharge the duties of his appointment, was approved by the said judge. On the twenty-seventh day of November, in the same year, this writ of attachment was issued, and, by virtue thereof, the sheriff seized and took-into possession personal property of the said bank. At this date the receiver had not reduced any of the funds or effects of said bank into actual possession.

In addition to the general powers of the court of chancery to appoint a receiver in cases of this kind, the court was empowered to do so by an act of assembly of this Territory, authorizing proceedings to be instituted against the bank by injunction, approved March 11, 1839. In 1 Smith’s Ch. Pr. 628, it is laid down that “a receiver appointed by the court is appointed for all parties, and the possession of a receiver appointed in an adversary suit is the possession of him who has the right.” This proceeding seems to have been instituted against the bank for the benefit of its creditors, and the receiver is said, in the opinion of the court below, to have been appointed for their benefit. He was appointed to take possession of the assets and keep them safe for those legally entitled to them, and he is bound by his bond to account for all the assets of the bank at the date of its execution and approval. It is clear, then, that the receiver is a mere recipient or trustee of the property, without power to assign it or exercise acts of ownership in respect of it, but those of a bailee, and has but a qualified property in it. It is no argument in favor of the plaintiff in error that the ownership of the property attached was not divested, if the property were in gremio legis, and that it was so, cannot admit of a doubt. If the charter of the bank should be declared forfeited, it will become necessary to distribute the assets of the bank among its creditors—to accomplish which, it is absolutely necessary that the law should take possession of the funds. An insolvent law in the State of Maryland provided for the appointment of a provisional trustee, to take possession, for the benefit of the creditors of an insolvent debtor, of all his property, estate, effects, books, papers, accounts, bonds, notes and evidences of debts, pending the application of the insolvent debtor for his discharge. Under this law, the supreme court of Pennsylvania, decided in the case of Mullikin v. Aughenbaugh, 1 Penn. 117, that a debt due to one who was an applicant in Maryland for the insolvent laws, and for whom a provisional trustee had been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in gremio legis. This case is precisely similar to the one under consideration. The case of Preston v. The Farmers’ Bank of Delaware, that was cited on the argument, from 12 Pet. 102, does not apply. There the property had been levied on by execution before the attachment was issued or the receiver appointed; and the cause turned on the construction of the act of congress of the 3d of March, 1797, giving the United States the preference in cases of insolvency or voluntary assignments of their debtors.

The court is unanimously of opinion that the order of the district court dismissing the attachment in this case was correct, and do order and adjudge that the same be affirmed with costs.