7 Pa. 499 | Pa. | 1848
The cause presents two distinct departments or allotment of facts, which were necessarily considered by the learned judge who presided in the Court of Nisi Prius sepa
In Seal v. Duffy it is asserted that the only efficacious mode of arresting assignees is by execution and levy on the part of the creditor. And in Hennessy v. The Western Bank, 6 Watts & Serg. 311, an attachment in execution, which is in fact the same thing, is considered adequate. But in both these cases there is a clear, distinct, and unequivocal notice to the assignee that the legality of his trust is questioned by lawful measures; and that these measures, if effectual, will protect him from his eestuis que trust. And in all fairness the assignee is entitled to distinct and unequivocal notice.
On the one hand, he has accepted a trust which he is bound in honesty and by law to fulfil, unless he is arrested in its discharge by adequate legal measures on the part of those who would inter-,, pose and stop him. On the other, shall he. be ¡presented with impalpable shadows, vague and indefinite surmises, or mere conjectures, to swerve him from the path of duty which is plain and obvious ? Did, then, the commencement of this suit in September, 1838, by the trustees, in which- no declaration was filed until May, 1844, give the defendants or assignees any notice whatever that the deed under which they were acting — that is, the first assignment — was void as against the creditors, and that they intended to contest its validity in that suit ? On this subject the learned judge, In another part of his charge, says “ that the trustees who brought this suit qua trustees, have literally done nothing except to institute the suit we are now trying; they never ¡received a cent of money as trustees, nor did they ash for awy. This they carefully avoided. They never took a single step in this suit, not even so
The learned judge throws the whole weight of the availability of such defence upon the assignees calling in a proper manner for a bill of particulars, and the probability of the trustees, being properly called on, furnishing such bill. The mere conjectural willingness of the -trustees ought surely not to defeat a substantial defence. But the learned judge, in another part of his charge, said that the trustees would do nothing; not even show their cause of action. But I apprehend that the true answer is, that the trustees were the actors; it was their duty to give notice, and to follow up that by due and legal means; and the question is, have they done it, so as to put the assignees in the wrong, and compel them to pay the money a second time ?
With regard to the other department or branch of the case, a majority of this court are of opinion that the court below fell into error. The assignment of 22d June, 1837, under the operation of the cases of Hennessy v. The Western Bank, 6 Watts & Serg. 300, and In re Wilson’s Accounts, 4 Barr, 430, must be considered as invalid. But a court of competent jurisdiction, that is the Court of Common Pleas, having jurisdiction over the fund and jurisdiction over the assignees, after a hearing, having made a decree concerning the distribution of the funds in the hands of the assignees, arising under this assignment, and which are claimed in this suit,' and the assignees having conformed to that decree, and paid the money accordingly, they are protected, and cannot be made to pay the money a second time in this or any other suit. It appears to
But the proceedings in the Common Pleas ought to be regarded as a proceeding in rem, which binds all the world.. It is the fund or property concerning which the court decree, and notice is directed by the statute to be given, not to the eestuis que trust named in the deed, but to everybody, by means of publications in newspapers; on which notice, it shall be recited that the court at a particular day will make a decree, or allow the account of the assignee, unless cause be shown why it should not be allowed. Can it be possible that a decree of a court, made after such general notice, shall not protect the assignee, who yields obedience to it, and who can be compelled to do so by sequestration of his estate and attachment of his person ? The fourth article of the second paragraph of the thirteenth section [the thirteenth section and the fourteenth section, in the original draft of the law, were thrown into one] of the law of 16th June, 1836, defining the power and jurisdiction of the courts, is in these words: The courts of Common Pleas shall have “ the determination of rights to property or money, claimed by two or more persons, in the hands or>possession of a person claiming no right of property therein;” and the revisers of our code, in presenting the act “Relating to assignees for the benefit of creditors and other trustees,” accompany it with the following observation, with others, to wit: “ The design of the bill is to declare in what manner the jurisdiction given to the several courts of Common Pleas over trustees, by the fourth article of the fourteenth section [second clause, thirteenth section] of the bill relating to the jurisdiction and powers of courts, shall be exercised in the principal cases arising. It is not intended to include all the cases which may arise. In respect to those which are not mentioned in this bill, the courts will proceed in conformity with the practice in equity, prescribed or adopted by the Supreme Court of the United States.” This seems to meet the case, and to establish that in all cases in which two or more persons claim money in the
The judgment is reversed, and a venire de novo awarded.
Gibson, C. J., dissented on all the points ruled against the general creditors, and concurred entirely with the charge of Mr. Justice Rogers, who also dissented fiom this opinion.