SHARPLESS v. WELSH - 4 U.S. 279 (1803)
U.S. Supreme Court
SHARPLESS v. WELSH, 4 U.S. 279 (1803)
4 U.S. 279 (Dall.)
Welsh et al.
Supreme Court of Pennsylvania.
September Term, 1803
SCIRE FACIAS against John Welsh, Redman Byrne, and the Bank of the United States, garnishees in a foreign attachment, issued by the plaintiff against M. Moore, of Charleston. The facts were these: Moore, being indebted to several persons inPhiladelphia, remitted to Redman Byrne, a bill of exchange, dated the 13th of November 1800, drawn by Joseph Byrne, in favour of Redman Byrne, on John Welsh, at 60 days sight, for 1700 dollars; saying, in the letter that inclosed the bill, 'I will send the duplicate, in a few days, with directions what to do with it.' Accordingly, on the 22d of November, he wrote again to Byrne, ordering the following disposition of the bill:
- 'To Martin Bernard 70l.
- 'To Moore, surviving partner of Goldthwaite 29 Dollars.
- 'To Jesse Sharples 400 Dollars.
- 'To M. Shields 300 Dollars.
- 'To Robert Campbell 400
- 'The balance to be divided equally between Mr. Carr and M'Goffin.'
Soon after the receipt of his letter, Byrne showed it to the plaintiff, and, also, to John Shields; told each of them of the appropriations; and promised to pay each the sum specified, when the cash should be received. And, on the 26th of December 1800, he wrote to Moore, that the bill 'should be disposed of, as his last letter directed.' Subsequent to these communications, the plaintiff issued a foreign attachment, on which the present scire facias is grounded. Byrne informed Moore, of the occurrence, and called for instructions, on the 8th of January
1801; and on the 6th of February following, Moore answered, 'I would rather, if by any means you could have it done, that Sharpless should be got to put up with 8 or 900 dollars; and the rest to be paid to the other people mentioned, as far as it will go.' But Byrne, conceiving himself bound to pay, according to the first appropriation, did not mention this proposition to Sharpless. In the meantime, the bill of exchange, which had been accepted on the 28th of November, was regularly protested for non- payment; Welsh assigning the attachment, as the cause of his refusal to pay.
On the trial of the cause, it was contended, for the plaintiff, that the property in the bill continued to be Moore's, at the time of the attachment; and that the creditors had acquired no lien upon it. 4 Burr. 2174. The letter of appropriation, is nothing more than a private order, to pay the money, when it was received; and Moore had a power to revoke, or alter it (as, in fact, he did, in his letter of the 6th of February) at any time before actual payment to the creditors.
But it was insisted, by the counsel for the defendants, that the letter of the 22d of November, amounted to an irrevocable appropriation and transfer of the fund; that Byrne became a trustee, for the creditors named in the letter; and that the trust fund was not liable to a foreign attachment. Ambl. 297. 1 Atk. 124. 2 Atk. 207. 1 F. Vez. 280. 1 Vez. 331, 2. 1 East. 550. 5 T. Rep. 215. 494.
By the COURT:1
The plaintiff had a legal right to institute the attachment, which cannot be 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 favour 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 that any of the creditors [4 U.S. 279, 281]