276 Pa. 58 | Pa. | 1923
Opinion by
Plaintiff issued a writ of foreign attachment against J. B. Ross, a nonresident, and summoned the Union Trust Company of Pittsburgh, as garnishee. Judgment by default was entered against defendant and, in answer to interrogatories filed, the garnishee admitted having in its hands the sum of $142.75, in cash, and also shares of the capital stock of a foreign corporation, held as trustee under an agreement, whereby the shares of a
At common law, corporate shares of stock were not subject to levy and sale under execution, for the reason the property they represented was considered of such shadowy nature there was nothing capable of being physically seized: 6 C. J. 212, and cases cited. For the same reason, shares of a foreign corporation are not liable to attachment, in absence of express statutory provision, in the hands of the person residing within the jurisdiction: Christmas v. Biddle, 13 Pa. 223; Smith v. Downey, 8 Ind. App. 179; Tweedy v. Bogart, 56 Conn. 419; U. S. Express Co. v. Hurlock, 120 Md. 107. Although there are cases to the contrary, several of which are cited by appellee, an examination of these decisions discloses they are based mainly on statutory provisions and regulations: Bowman v. Breyfogle, 145 Ky. 443; Plimpton v. Bigelow, 93 N. Y. 592; Young v. Tredegar Iron Co., 85 Tenn. 189; Old Second Nat. Bank v. Williams, 112 Mich. 564. The theory applicable is that a
A further question is presented in the record of this case. The answer to the fifth interrogatory states defendant is “interested” in stock held by the garnishee, as trustee, under a deed of trust dated October 31, 1916. An examination of the trust agreement in question shows the parties pooled their stock to raise money for purposes stated and that “out of the proceeds and profits of the ownership of said stock, whether the same shall be realized by the sale of the whole or'any part thereof, or by dividends thereon, or otherwise soever,” the money contributed by the various parties shall be repaid after payment of expenses incident to the trust agreement and that the “proceeds and profits shall be paid and distributed pro rata in accordance with the amount so contributed by the several parties.” It also provides that designated shares of stock on which Ross held an option should, upon the termination/of the trust, be returned to him and that “all proceeds and profits from or upon said shares belong to said Ross, the same as if the said transfer thereof has not been made, and shall be paid to him from time to time by the fourth party [Trust Company] without any further diminution or charge on account of the expenses of the. trust hereby created.” It was further provided that the trust agreement should terminate “and all stock, money or other property therein shall be distributed to the parties entitled thereto hereunder when the said sum of $152,072.69 has been
Judgment reversed and attachment reinstated with a procedendo'.