2 Conn. 396 | Conn. | 1818
Lead Opinion
It appears, that Tomlinson, the plaintiff in error, borrowed money, on the credit of the company, to pay his private debts ; and then, without, the consent oí Ward, took money at an extra rate of interest to meet the payments ; which extra interest was charged to the company. I am of opinion, that he had no right to do this ; and that such extra interest was justly and properly charged to him.
In regard to the debt due -from -Victory Tomlinson, Tyler and Frost, it appears that the- defendant, (now plaintiff in
It was a proper exercise of the discretionary power of the court to appoint distributors to divide the joint property between the parties.
Courts of equity have undoubtedly a power to appoint receivers in proper cases : but the facts should be stated in the bill, which shew' the necessity or propriety of the appointment,. so that the other party may answer them. A receiver ought to give security for the faithful discharge of the trust. As no facts were stated in the bill, and no security given by the receiver, I am of opinion, that this part of the decree be reversed ; and that the same be affirmed on every other point.
Concurrence Opinion
I concur in the opinion, that that part of the decree, which relates to the appointment of a receiver, ought to be reversed. Such an appointment, in cases of this sort, is, by no means, a matter of course: if it were, great inconvenience and injustice would often ensue. A partner, however solvent, and without any imputation upon his integrity, ór competency, might be dispossessed of his property, for an indefinite period, to the great derangement of his affairs, and even to his own ruin. The rule, therefore, is, that where either of the original partners is defendant in the bill, and no particular disqualification is shown against him, the confidence, reposed in him, precludes the appointment of a receiver. Philips v. Atkinson, 2 Bro. Ch. Ca. 272. Read v. Bowers, 4 Bro. Ch. Ca. 441. In the present case, no disqualification, on the part of the plaintiff in error, appears ;
In this view of the first error assigned, there is no occasion for considering the second. For, if upon the facts dis--■losed, no receiver ought to have been appointed ; the mode, in which the appointment has been made, cannot affect the judgment to be given here.
In the third assignment, the power of the court below, to appoint distributors, is not questioned : but it. is objected, first, that, by the terms of the decree, they are not required to act under oath ; and secondly, that they are not directed to make return of their doings. If an oatli were admitted to be necessary, the first branch of the exception could not prevail. For the objection is not taken to any proceedings of the distributors ; but to the form, in wdfich their powers are conferred : and that form is the same, as has obtained, in all analogous cases. In assigning auditors, in the action of account, it is never directed, by the court, either in the English practice, or our own, that they act under oath ; and the same observation applies to our mode of appointing referees, in actions at law, and committees upon bills in equity. To allow the objection, would, therefore, be virtually to impeach the established form, in which similar appointments have always been made. In the instances, just mentioned, auditors, referees and committees are left, precisely as the distributors, in the present instance, have been, to conform to the law, without any particular direction from the court. If the law requires them to act under oath, it surely cannot be presumed, that they will act without oath, And if they deviate, in this respect, from the course, which the law prescribes ; the objection must be taken, if at all, in a different stage of the proceedings. Whether an oath, in this particular instance, is necessary, or not, we cannot, therefore, now, judicially determine. I acknowledge, for myself, however, that I am, at present, unapprized of any law, or usage, of the state, requiring it. And I do not know, that our courts of justice, have ever framed, or sanctioned, an oath, unless some authority could be found for it, either in statute-law, or precedent. To the second branch of ¡he exception, (that the distributors are not directed to make return of their doings.) it has been justly replied, at the bar, that it is always in the pow er of the court below, to enforce a return ;
In relation to the charge of 450 dollars, allowed against the plaintiff in error, for extra interest, and the allowance of which is the subject of the fourth error assigned, I am unable to discover any plausible ground of exception. That allowance is clearly warranted, by the fact, that the company has been obliged to pay the same rate of interest, and at least, to the same amount, for the sole benefit of the plaintiff in error.
Under the fifth error assigned, some confusion has been introduced into the argument, by the different views, which have been taken by the counsel, of the finding of the committee. It has been contended, that the company have sustained no loss, in consequence of the course, pursued by the plaintiff in error, in relation to their accounts with Frost, and with Victory Tomlinson; because credit was given to the company, on their own books against Frost, equal to the amount, endorsed upon the note, which the plaintiff in error held against Frost: and it is added, that this sum was never charged over, by the plaintiff in error, to the company. It would have been extraordinary, indeed, if it had been so charged over: such a charge would have subjected the company to a double loss of the amount, charged to Frost. For the debt, apparently due to him, upon the company books, was altogether fictitious ; it having been raised, by giving him a credit, which ought to have been given to Victory Tomlinson. Of what use, then, was the diminution of this ideal credit, to the company ? Clearly of none at all. On tin contrary, it is impossible for the court not to see, that the operation in question, was, in effect, an application of partnership-funds, to the use of the plaintiff in error — or, in other words, of property received by the company, in pay inent of a debt against Victory Tomlinson, to a debt due from Frost to the plaintiff in error. The charging to Frost, on the company-books, and the indorsing upon his note to the plaintiff in error, of a sum which ought to have been passed to the credit of Victory Tomlinson, in payment of the company’s debt against him, were essentially, without any charge of that sum to the company, an appropriation of partnership funds, to the same amount, to the private debt, w hich the
The last error assigned is urged, only as a ground of objection to the costs allowed, by the court below. In our chancery proceedings, the allowance of costs is, in strictness, discretionary; though, in practice, our rule is, generally, much the same, as at law. The question, therefore, is not stricti juris: and I see no sufficient reason, in this case, for rejecting the allowance.
I» therefore, concur in the opinion, that the decree, except so much of it, as relates to the appointment of a receiver, ought to be affirmed.
Concurrence Opinion
I concur in the opinion of the Chief Justice, affirming this decree upon the merits, and reversing it as to the receiver ; but not for any defect in the bill.
The appointment of a receiver is a matter of discretion, and may be made on motion, as well as for reasons stated in the bill. 2 Har. Chan. Prac. 107. Jones v. Pugh, 8 Ves. jun. 71. Coke v. Gwyn & al. 3 Atk. 690. Whenever it appears from the bill, the answer, or testimony at the hearing, that a receiver is necessary, the court will appoint one; hit never without surety. In this case, no surety was reuní-
Judgment reversed as to the appointment of a receiver, and affirmed as to the residue.
Jlardwicke, 3 Jltk, 23?.
