Bank of North America v. McCall

• Decision Date: 05 January 1811
• Citation: 3 Binn. 338
• Parties: The Bank of North America for the use of SWIFT v. McCALL.
• Court: Pennsylvania Supreme Court

3 Binn. 338

The Bank of North America for the use of SWIFT v. McCALL.

Supreme Court of Pennsylvania.

January 5, 1811

If a creditor of A lays an attachment upon goods which appear as the property of A, but wherein B has nevertheless an interest which he communicates to the creditor before the attachment is laid, the creditor is bound to refund B his proportion of the money recovered under the attachment, notwithstanding the judgment of a competent court decreed the whole to him as the property of A.

Qu. Whether it is the same with an equitable assignee of A who gives no notice of his claim until after the attachment.

EXCEPTIONS to a report of referees.

George Plumstead deceased, and Swift the plaintiff in interest, made a shipment on joint account to St. Domingo in October 1804, the bill of lading and the invoice of which were made out in the name of Plumstead only. Plumstead died in April 1805, and being indebted to the defendant in 2600 dollars upon two promissory notes, the defendant gave instructions to have his property attached in St Domingo. It was accordingly attached in June following; and the coffee, & c. which proceeded from Plumstead's shipment, was delivered over by virtue of the attachment to the defendant's agent, who forwarded it to him at Philadelphia. The proceedings of the court at St. Domingo were very regular, there being a petition for leave to attach, permission to attach and a return of attachment, petition to summon the garnishees, citation to the garnishees, a return of service and a decree reciting the proved account and power of attorney of M'Call, the declaration of the garnishees that they had coffee in their hands belonging to Plumstead to the amount of 5000 dollars, and then confirming the attachment, and ordering the garnishees to pay 2600 dollars to the plaintiff, without prejudice to interest and costs. The present action was for money had and received, to recover the interest of Swift in the shipment, both as partner of Plumstead, and also in Plumstead's right, by assignment from the Bank of North America, who held the original bill of lading with a blank indorsement from Plumstead, as a security, and had transferred it to Swift upon being paid their claim. Both the account and power of attorney, referred to in the decree of the court, spoke of Plumstead as being deceased.

The referees reported in favour of Swift 4924 dollars and 60 cents, being the whole amount principal and interest which the defendant had received from his attachment.

The exceptions were two, 1. That the referees erred in fact, in taking for granted that Swift was jointly interested with Plumstead in the shipment to St. Domingo; whereas he either was not so at all, or only in a small degree. 2. That they erred in law in not considering the attachment and proceedings in St. Domingo, relative to the property, as conclusive against Plumstead, Swift, and the Bank.

Upon their examination relative to the facts, the referees stated that they did not take Swift's interest for granted. They were satisfied from the evidence that Swift and Plumstead were jointly concerned, and that the adventure was indebted to Swift as joint partner. They also stated that before the defendant ordered the attachment, he had notice of Swift's interest, although it did not appear that he had any knowledge of that of the Bank.

B. Tilghman for defendant. The first exception is not made out; but I contend that the attachment is conclusive as to one half the property belonging to Plumstead, which he assigned to the Bank in whose place Mr. Swift stands. The case of Rappelje v. Emory ^[a] is in point. The defendant fairly recovered this money by the judgment of a court of competent jurisdiction as the property of Plumstead; and this judgment cannot be reversed in a collateral way. 4 Cranch 511, 512., app. The Bank had opportunities of giving notice to the defendant, and neglected to do it. If they had an interest, they must be content to see it postponed to those who had as good claims against Plumstead, and were more vigilant in prosecuting them. As to Swift's part, in his own right, I leave that to the court; it may be upon a different footing from the other in consequence of the notice.

Condy for the plaintiff. There can be no doubt as to Swift's proportion, because after notice of his interest, it was manifestly against good conscience in the defendant to attach the property as Plumstead's; and in fact, the adventure owes Swift more than the award. The same principle goes further. He knew that Plumstead was dead, and that his property had...