Sharpless v. Welsh

— The plaintiff had a legal right to institute the attachment, which cannot he divested, by any irregular attempts to obtain a preference from the trustee himself. The only question is, whether the fund attached, can be regarded, under the circumstances of this case, as the property of Moore ?

The facts are few, but powerful. Moore remits the bill to Byrne, with express directions to apply the money to the payment of specific creditors in Philadelphia; and Byrne undertakes to do so. Independent of the communication to the plaintiff, Byrne mentioned the general appropriation to Shields, with a direct and positive promise to pay Shields his proportion of the money. Under these circumstances, it is clear, that there could be no revocation of the appropriation in favor of Shields ; to whom Byrne himself had become responsible ; but the doubt arises, as to the situation of those creditors who had received no intimation of the remittance. If, indeed, no notice had been given to any of the creditors, we do not think, p2gi that any of the creditors * would have acquired a vested interest in *- the fund, by the terms of the correspondence between Moore and Byrne. But it is a material fact for the consideration of the jury, that the plaintiff received information, not only of his own apportionment, but of the distributive shares of all the creditors ; and that he never objected to this appropriation of the fund, until he issued his attachment. If the jury shall think, from this fact, that the plaintiff ratified or acquiesced in the distributive appropriation; the law will not permit him, afterwards, to monopolize the fund, in the way that the present suit contemplates.

— The equity of the case is strongly in favor of the defendants ; but I find it difficult to surmount the strict rules of law, ae to those creditors, who, receiving no notice, acquired no right. The creditors who received notice, and assented to the appropriation, had clearly a vested interest. But I incline to think, the law in favor of the creditors stops there ; unless the fact is sufficiently ascertained, to satisfy the jury, that tne plaintiff, by his conduct, approved and assented to the whole appropriation, after he was fully apprised of it. That fact, the important one in *244the cause, if found affirmatively by the jury, must be decisive in favor of the defendants.

On the day succeeding that upon which the charge was delivered, the jury returned to the bar, and declared, that they could not agree upon a verdict ; proposing, at the same time, several legal questions, for the solution of the court. But —

Smith, Justice, observed, that it would, probably, extricate the jury from their embarrassment, as well as relieve his own mind, to inform them, that since the adjournment, he had entirely changed his opinion, upon the • principal legal point in the cause. He said, that he always thought it more honorable to retract an erroneous opinion, when the error was discovered, than to persist in it, upon the suggestions of a false and pernicious pride. He then declared, that on full reflection and research, during the recess, he had been convinced, that from the time of receiving Moore’s letter, ordering specific payments to the enumerated creditors, Byrne became a trustee for those creditors ; and that the creditors thereupon acquired such an interest in the trust-fund, as could not be divested, or affected by the plaintiff’s attachment. (a)

The jury, having again retired, soon agreed upon a verdict, in favor of the plaintiff, for $400; being the sum to which he was entitled by the original appropriation of the bill of exchange.