46 Ky. 651 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
The slave Jim having been levied on by a chancery attachment, was during the continuance of that levy in 4he custody of the law, and under the entire control of She Chanceller, and could not be levied on, or sold by
That a bond had been executed by one of the defendants in the chancery suit for the delivery of the slave when required by the Chancellor, does not change the principle which prohibits a sale by execution of personal estate under attachment.
The eq.uitable lien on the attached goods resulting to the complainant from his suit in rein, is not discharged by the execution of such a delivery bond : Bell vs Pearce, &c. (1 B. Monroe, 73.) The levy is not thereby suspended, but the defendant holds the property under the levy which still exists, as bailee or depository, subject to the Chancellor’s order or deciee. If it could be taken and sold by execution, the obligees in the bond might not have it in their power to comply with its conditions, the object of the suit- in chancery might be defeated, or the whole liability, to the extent of the complainant’s demand, be thrown on the security in the delivery bond. This, in effect, would render nugatory the provisions-of the law authorizing the execution of such bonds. The defendant in the attachment being general!}', in embarrassed circumstances, would be unable to obtain security and execute a bond, if the law permitted the same property to be seized and sold by execution creditors-as s-oon as it was out of the hands of the officer who levied the attachment. Nor is the rule on this subject changed by the factthat the property attached belonged to the defendant in the execution, and not to the debtor of the attaching creditor. The right to the property was contested in-the suit in chancery. The complainant claiming it to be the properly of the defendant, who was his debtor, the other defendant who was the defendant in the execution claiming it as his own, and denying that it was subject to the attachment. The properly was in the custody of the law, and under the control of the Chancellor, and every reason which requires its exemption from execution in the one case, applies with equal force to the other. As, however, the execution creditors of the defendant to whom the property really belonged, were prevented by the pendency of the suit in chancery and the levy of
As the slave had been sold under the decree of the Chancellor, and the money paid over to the complainants, and as the decree had been reversed by this Court, and the slave held not subject to the complainant’s demand, it was right and proper that the Chancellor should order the repayment of the money, either to the defendant to whom the slave actually belonged, or to such person claiming the fund as in equity was entitled to it. A rule for this purpose on the complainants, was an appropriate remedy, either during the pendency of the suit, or even after its dismissal. And as the assignee has a right to defend all suits depending against the bankrupt at the time of his bankruptcy, and had in this character a claim to the proceeds of the sale of the slave, his motion to be made a party, was proper, and the complainants had no right to defeat the object of that motion by a dismissal of
The argument that no rule can be prosecuted in chancery after the parties are out of Court, is founded on a total misconception of chancery practice. Suppose a decree to be rendered against a defendant for a sum of money which is paid to the complainant, the decree is afterwards reversed on the ground that there is nothing due to the complainant, and his bill is directed to be dismissed, which -is done accordingly, would the defendant be driven to his action at law to recover the money which the complainant had wrongfully obtained ? Would not the Chancellor, by rule, require its restitution? Has he not the power? Is it not his duty to relieve the parties from the effects of bis own erroneous action ? Can the complainant evade this power, by a dismissal of his suit, and an attempt to withdraw» himself from the jurisdiction of the Chancellor ? Certainly not, the well established chancery practice authorizes this proceeding by rule, to enforce in favor of either party any right growing out of the action of the Chancellor in the progress of the chancery suit.
Nor is this case affected by the provision in the bankrupt law, limiting the time in which suits are to be brought by, or against the assignee in bankruptcy to the period of two years. This suit was pending at the time of the bankruptcy. No suit was brought by the assignee. The limitation of two years has no application to suits pending at the time of bankruptcy. The bankrupt being a defendant to the suit, and having claimed the slave in controversy, his assignee was entitled to all his rights, and time would not certainly bar a claim which had been in litigation between the parties from the time the claim originated.
Wherefore, there being no error in the decree of the