Shelby v. Bacon
51 U.S. 56

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U.S. Supreme Court

Shelby v. Bacon, 51 U.S. 10 How. 56 56 (1850)

Shelby v. Bacon

51 U.S. (10 How.) 56

Syllabus

By a statute of Pennsylvania, passed in 1836, "assignees for the benefit of creditors and other trustees" were directed to record the assignment, file an inventory of the property conveyed, which should be sworn to, have it appraised, and give bond for the faithful performance of the trust, all of which proceedings were to be had in one of the state courts.

This Court was vested with the power of citing the assignees before it at the instance of a creditor who alleged that the trust was not faithfully executed.

The assignees of the Bank of the United States chartered by Pennsylvania recorded the assignment as directed and filed accounts of their receipts and disbursements in the prescribed court, which were sanctioned by that court.

A citizen of the State of Kentucky afterwards filed a bill in the Circuit Court of the United States for the Eastern District of Pennsylvania against these assignees, who pleaded to the jurisdiction of the court.

The principle is well settled that where two or more tribunals have a concurrent jurisdiction over the same subject matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other.

But the proceedings in the state court cannot be considered as a suit. The statute was not complied with, and even if it had been, the circuit court would still have had jurisdiction over the matter.

The complainant was a citizen of Kentucky, and the defendants were all citizens of Pennsylvania. The latter, under three assignments bearing date 7 June and the 4 and 6 September, 1841, were trustees of the Bank of the United States, a banking institution incorporated by the Legislature of the State of Pennsylvania by an Act passed on 18 February, 1836.

It appeared that the bank, being unable to meet its liabilities, made an assignment of a part of its property on 1 May, 1841, to certain trustees, to secure the payment of sundry post notes held by certain banks of the City and County of Philadelphia. Afterwards, on 7 June, 1841, it made another assignment of a portion of its property to the defendants Bacon, Symington, and Robins in trust to secure the payment of its bank notes and deposits. Subsequently, two other assignments were made by the bank to the defendants Robertson, Bayard, Newbold, Cope, and Taylor, in trust for the payment of its debts generally, the first of which was executed on 4 and the other on 6 September, 1841. These several assignments were duly recorded, and the trustees accepted and proceeded to minister the trusts.

The bill and amended bill, after setting forth the chartering

Page 51 U. S. 57

of the bank, and the assignment of its property to the defendants in trust, alleged that on 6 September, 1841, one George Beach, a citizen of Pennsylvania, recovered a judgment in the District Court for the City and County of Philadelphia, against the said bank, for the sum of $53,688.66, besides interest and costs; that this judgment was founded on promissory notes of said bank, called post notes. That subsequently the said George Beach, in a suit on said judgment, in the Commercial Court of New Orleans, recovered a judgment for the sum of $53,688.66, with interest thereon and costs; on which the sum of $4,075 was paid; and that the residue of both said judgments remains unpaid. The bill then alleged, that through several mesne assignments the complainant became invested with all right under said judgments; that the debt due is provided for in said assignments, but that the trustees have refused to pay any part thereof; and that they have kept complainant and other creditors in ignorance of the situation of the trust funds. Prayer for a decree for an account of the trust, for the payment of complainant's debt in full or a distributive share thereof, and for general relief.

The defendants Robertson, Bayard, Newbold, Cope, and Taylor pleaded as follows:

"That the said corporation mentioned in said complainant's bill, viz., the President, Directors, and Company of the Bank of the United States, incorporated by the State of Pennsylvania, and having its banking house and chief place of business in the City of Philadelphia, did, on the fourth and sixth days of September, in the year one thousand eight hundred and forty-one, execute and deliver to these defendants assignments and transfers of certain property upon trusts therein particularly set forth -- as by reference to copies of said assignments attached hereto, and made by reference part of this their plea, will fully and at large appear; that said assignments, after having been duly proved, were afterwards, to-wit, on the fourth and seventh days of September, A.D. 1841, recorded, according to the statute of Pennsylvania in such case made and provided, in the office for the recording of deeds &c., for the City and County of Philadelphia -- the execution of the trusts thereof having been previously accepted by these defendants. And these defendants further aver, that, in accordance with the provisions of the laws of the said State of Pennsylvania, full and complete jurisdiction of and over the said trust fund so conveyed to these defendants, and of and over the execution of the said trusts, and of and over these defendants personally, as trustees as aforesaid, was and is vested in the Court of Common Pleas of the City and County of Philadelphia, which now

Page 51 U. S. 58

has cognizance of the same, with ample power and authority in said tribunal to enforce the execution of the said trusts, to decide upon the rights of all parties claiming an interest therein, and right and justice fully to administer in the premises; that, in the execution of the trusts aforesaid, and the collection of the assets so assigned to them, these defendants have been governed by the laws of Pennsylvania, and, among other things, by certain laws of the said state, by which they have been compelled to accept and receive from their debtors, in payment of debts due to the said bank or to the said trustees, at par, the notes and other evidences of debt issued or created by the said bank; and the defendants further aver, that, having in part executed the trusts so as above committed to them, they did, on the seventh day of January, A.D. 1843, file in the office of the prothonotary of the Court of Common Pleas aforesaid an account, duly verified, of their receipts and disbursements, and of their acts and doings, as trustees as aforesaid, from the commencement of said trust down to the first day of January, A.D. 1843; and subsequently, to-wit, on the thirteenth day of January, A.D. 1844, they did file a further account in the office aforesaid, and duly verified as aforesaid, of their receipts and disbursements, acts and doings, as aforesaid, down to the first day of January in the year 1844, which said accounts were absolutely confirmed by the said court, agreeably to the laws of the said state; and the defendants further aver that on the seventeenth day of January, 1845, and on the thirteenth day of January, 1846, respectively, they filed additional accounts as aforesaid, in the office aforesaid, showing their receipts and disbursements, acts and doings, aforesaid, down to 1 January, A.D. 1846, which said last-mentioned accounts were referred by the said court to auditors, who have made reports thereon, respectively, to the said court; and the defendants further aver that on 14 January, A.D. 1847, they filed another accounts as aforesaid, showing their administration of said trust down to the first day of January, A.D. 1847, which said last-mentioned account was likewise referred by the said court to auditors, before whom the same is now pending -- as by reference to the records of the said court will fully appear; and these defendants further aver, that, in pursuance of the direction and decree of the said court, they have distributed and paid over large sums of money, being the proceeds of the assets assigned to them as aforesaid, and have likewise, under the direction of the said court, invested large sums of money to await the result of pending litigation, and in all other respects have conformed to the directions of the said court in relation to the trust aforesaid. "

Page 51 U. S. 59

"All which matters and things these defendants do aver to be true, and plead the same to the whole of the said bill, and humbly demand the judgment of this Honorable Court, whether they ought to be compelled to make answer to the said bill of complaint, and humbly pray to be hence dismissed, with reasonable costs and charges in this behalf most wrongfully sustained."

The other defendants pleaded the same plea in substance, reddendo singula singulis.

The cause coming on to be heard on the amended bill and pleas, the judges were divided in opinion on the following points:

"First. Whether the facts stated in the plea to the amended bill filed by John Bacon, Alexander Symington, and Thomas Robins, deprive this Court of jurisdiction of the case, and whether the said plea is a sufficient plea to the plaintiff's bill, and ought to be allowed."

"Second. Whether the facts stated in the plea to the amended bill, filed by the defendants, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, deprive this Court of jurisdiction of the case, and whether the said plea is a sufficient plea to the plaintiff's bill, and ought to be allowed."

The following sections of the Act of Assembly of Pennsylvania of 14 June, 1836, were relied on in argument, and are therefore inserted.

"Sec. VII. It shall be lawful for the court of common pleas of the proper county, on the application of any person interested or co-trustee or co-assignee, to issue a citation to any assignee or trustee for the benefit of creditors, whether appointed by any voluntary assignment or in pursuance of the laws relating to insolvent debtors and domestic attachments, requiring such assignee or trustee to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court, within a certain time, to be named in such citation."

"Sec. IX. The several courts of common pleas shall, by a general order, or by such order as the circumstances of any particular case may require, direct the prothonotary of the same court to give notice of the exhibition and filing of every account as aforesaid, during such time, and in such public newspapers, as they shall appoint, setting forth in such notice, that the accounts will be allowed by the courts at a certain time, to be stated in such notice, unless cause be shown why such account should not be allowed."

"Sec. XI. Whenever it shall be made to appear in a court of common pleas, having jurisdiction as aforesaid, that an assignee

Page 51 U. S. 60

or trustee as aforesaid has neglected or refused, when required by law, to file a true and complete inventory, or to give bond with surety, when so required by law, or to file accounts of his trust, or that such assignee or trustee is wasting, neglecting, or mismanaging the trust estate, or is in failing circumstances, or about to remove out of the jurisdiction of the court, in any such case it shall be lawful for such court to issue a citation to such assignee or trustee to appear before the court, at a time to be therein named, to show cause why he should not be dismissed from his trust."

"Sec. XII. On the return of such citation, the court may require such security, or such other and further security from such assignee or trustee, as they may think reasonable, or may proceed at once to dismiss such assignee or trustee from the trust."

"Sec. XIII. The like proceedings may be had whenever it shall be made to appear to such court, that any person who shall have become surety for any assignee or trustee as aforesaid, in any bond, given for the due execution of the trust, is in failing circumstances, or has removed out of this Commonwealth, or signified his intention so to do. "

Page 51 U. S. 67

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