9 Me. 28 | Me. | 1832
The opinion of the Court was read at the ensuing September term in Lincoln, as drawn up by '
The jury have found that the note signed by Ira Fish, George D. Varney and Isaac' Wendall, on the 27th of December, 1827, and payable to the Commercial Dank, was not given fora partnership debt; and therefore the attachment made by Fillebrown, on the 29th of April, 1828, in the plaintiff’s suit upon that note, had no legal priority to the attachments made by the same officer, of the same property, in the three suits of A. J. Wendall v. Isaac Wendall; Asa Perkins v. the same, and Mark L. Hill v. Ira Fish, subject to which attachments was that of the Commercial Dank; because they were all prior in point of time. The report states that judgments were duly recovered in all the four actions abovementioned ; that executions were duly issued on all the judgments, and placed in the hands of Fillebrown, for service, within thirty days next after judgment; that the plaintiff’s execution was returned in no part satisfied; and that the other three executions were never returned. The report also states that after allowing and deducting all payments made on the execution of A. & J. Wendall v. Isaac Wendall; Perkins v. the same; and Hill v. Ira Fish, there is a balance due on them, greater in amount than the value of all the goods attached in said suits. Therefore, admitting for the present that Fillebrown had a right to sell all the goods on those three executions, if he had sold them, it is evident that nothing would have remained to be applied towards satisfaction of the plaintiff’s execution ; and in such a case, the return of the Bank’s execution in no part satisfied, would have occasioned no damage to the Bank, nor subjected the officer to any thing beyond a mere nominal liability. The reason is obvious. But Fille-brown did not sell the property which he had attached, on those executions or on either of them, towards payment of the debts due to the attaching creditors ; and if he had a legal right so to sell them, then, by neglecting so to do, he at once rendered himself liable to those creditors to the full value of the property so attached, in the same manner as if he bad sold the goods, but neglected legally to'account for the proceeds; and, being thus responsible, as' above supposed and stated, it is contended by the counsel for the
It has been said by the counsel for the plaintiff, that the question of waiver, before mentioned, was a question of law, and should have been decided by the court. If there was próof of such waiver, it was of a circumstantial character, and we think the jury were the proper tribunal to draw inferences from any facts in relation to 'the point; but if we entertained any doubt as to the merits of this objection, it would not change our course of proceeding, or lead us to set aside the verdict on that account ; inasmuch as, in OUr opinion, no facts exist in the case which would have authorised the jury or would now authorise the court to infer a release or waiver of the right of action of the first three attaching creditors against Fille-broivn, if they had any such right. Again it has been urged that, as the demands of those three creditors were not against the firm, but only against two individual members of the firm, the property of Varney could not legally have been seized on either of those executions, but the same was liable to be seized on the execution of 'the Bank, because that ran against all three of the individual members of the firm ; that of course the priority of the attachment of the creditors of Isaac Wendall and Ira Fish could not interfere with or impair the plaintiff’s subsequent attachment, in respect to the property which belonged to Varney; and so, in this respect, the instruction of the presiding Judge was erroneous. On the other hand, it has been contended that, as the firm was deeply insolvent,
In the case of Lyndon v. Gorham & trustee, 1 Gallison 367, Story J. says, “ If upon the whole it appears that the judgment debtor had only a nominal interest, I do not think that a greater interest can be conveyed under the execution ; and, if the partnership be insolvent, that any interest can be conveyed.” On this principle what could Fillebrown have sold on the plaintiff’s execution ? What interest could have passed by the sale S How could the plaintiff have been in any degree benefitted by the sale ? And why, in such circumstances, should he be considered as having acted contrary to bis official duty ? In Fisk v. Herrick trustee, 6 Mass. 271, the court say, “ Before either partner can claim rightfully to his own use or for the payment of his debts, any of the partnership effects, the partnership must be solvent, and he must 'not be a debtor to it.” As in that case it did not appear that it was solvent, the court would not adjudge Willet and Bullard as trustees of Herrick, one of the partners, merely because they were indebted to the firm. This case shows that the mere insolvency of a partnership is enough to defeat the claims of the creditors of one of the firm, though the creditors of the firm, have commenced no action, or in any manner'asserted their claims. In Pierce v. Jackson, 6 Mass. 242, the facts were that an officer, who was the defendant, attached certain personal property in a suit against the firm of Kentor v. Von Horten. Afterwards, on the same day, he at
From a review of the foregoing decisions, it seems to have been considered as a circumstance of no importance whether the creditors of the firm, where it was insolvent, had recovered judgment and were enforcing the collection of their demands; or had ever commenced actions for the purpose ; or, if they had, in what stage those actions were, at the time of the decision; and in several of them, the claim of a creditor of one or more individual members of the firm, was resisted and disallowed, because it did not appear Whether the firm was solvent or not. Such being the principles of law applicable to the present cause, merely in the view which we have thus far taken of it, we might close our opinion here, without an examination of the other grounds of defence on which the counsel for the defendant have relied. But it may be more satisfactory to the parties that we should express our opinion on all the points presented in the argument, and we therefore proceed.
It appears that Fiske & Billings, on the 2d of May, 1828, commenced an action against Fish, Farney and Isaac Wendall, and attached the same property which had been before attached in the suit of the bank against them; that at June term following, they recovered judgment in that action, for $15,995,06, for a debt justly due from the firm to the said Fiske Billings ; and that the goods so attached were afterwards sold by them at private sale, by the consent of Fillebrown, and the proceeds of the sale were by the consent of the said firm, appropriated in part payment of the debt so due to Fiske & Billings. This part of the defence is placed on the ground that the plaintiff’s attachment, though prior in point of time, could not have, and did not have any legal operation as against Fiske & Billings, inasmuch as they were creditors of the firm, and that the debt due them must be paid out of the partnership property, as far as that property would go. This general principle of law is admitted to be correct; but it is contended by the plaintiff’s counsel that Fiske & Billings could not avail themselves of the benefit of the principio in the manner in which they proceeded ;
We will now proceed to notice and examine some objections which have been urged against this branch of the defence. We do not consider the other judgment which was recovered by Fiske Billings, At June term, 1828, against Fish only, as of any importance. It was for almost the same sum as that which was recovered against the three, composing the firm. Only that judgment is relied on. The reason of its existence was explained at the trial; no fraud was proved respecting it; certainly none was found by the jury ; and on no other ground can a judgment be collaterally examined. At any rate, the case finds that the whole amount of the judgment relied on, was due from the firm. It has been objected with some confidence that the judgment last mentioned is to be considered as void, in consequence of the addition of the sums of $6000 and $500, to the sums that were due when the judgment was recovered and therein included; the above sums not being then due, nor till
The next objection which has been urged has reference to thé 'admission of the affidavit of Mr. Rogers, as to the facts to which the above named Fiske would testify, if present; or in other words, the objection is, that Fiske was not a competent witness, but should have been excluded on the ground of interest. We might at once dispose of this objection by saying that the testimony is of no importance, and that the defence is established by facts, proved by the records and other witnesses against whom no objection was made. On this principle, we should not grant a new trial, even if we were satisfied that the testimony was inadmissible. But we are of opinion that the objection is not well founded. The principle of law on the subject of incompetency of witnesses on the ground of interest is stated in these words in 2 Stark. Evid. 744. “The interest to disqualify must be some legal, certain and immediate interest, however minute, in the result of the cause, or in the record, as an instrument of evidence, acquired without fraud.” Now as Fiske Sf Billings have in their hands the proceeds of the goods attached, and which they claim a right to hold, nothing can be more
maintain any action after they had assented to the receipt of the proceeds of the lumber by Fiske Billings, and an appropriation of such proceeds in payment of a debt they owed to'Fiske & Billings? A recovery of judgment by the plaintiffs in such an action would seem to be a legal anomaly. Besides, an action brought either by the company or by Fillebrown, might be effectually re* sisted by showing, in the defence, that the proceeds of the lumber had been appropriated in exact accordance with legal principles, as well as the agreement of all concerned. Could any other creditor of the company, or of any one or more of the members of the company maintain a trustee process against Fiske Billings ? Certainly not. A disclosure, showing the nature and amount of their1