Kemmerer v. Tool

• Citation: 78 Pa. 147
• Parties: Kemmerer <I>versus</I> Tool <I>et al.</I>
• Decision Date: 10 May 1875
• Court: United States State Supreme Court of Pennsylvania

78 Pa. 147

Kemmerer versus Tool et al.

Supreme Court of Pennsylvania.

March 17, 1876.

May 10, 1875.

March 17th 1876.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON, and WOODWARD, JJ.

Error to the Court of Common Pleas of Lehigh county: Of January Term 1875, No. 75.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

C. J. Erdman and J. D. Stiles, for plaintiffs in error.—The money having been paid by the sheriff to Kemmerer, the Court of Common Pleas had not jurisdiction in this case, as it would have had if the assignees had claimed in a distribution by the court: Biddle's Appeal, 18 P. F. Smith 13; Rohrer's Appeal, 12 Id. 498; Campbell's Case, 1 Lead. Cas. in Bank. 30; Miller v. O'Brien, 9 Blatch. 270. If an insolvent debtor believes he will be able to continue his business, and pays a just debt without a design to give a preference, the payment is not fraudulent, although bankruptcy should follow: Gregg's Case, 4 Bank. R. 150; Bachman v. Smith, 16 Wallace 277; Wilson v. Bank, 17 Id. 473. Whether a creditor has reasonable cause to believe the debtor insolvent is for the jury; Foster v. Hackley, 2 Lead. Cas. in Bank. 8; Dorr v. Sargeant, 15 N. H. 115; Phœnix v. Ingraham, 5 Johns. R. 412; Casteel v. Booker, 2 Exch. 691; Buckingham v. McLean, 13 Howard 151 R. E. Wright, Jr. (with whom was E. A. Wright), for defendants in error.—As to jurisdiction, cited, Holl v. Dreshler, 21 P. F. Smith 300; Biddle's Appeal; Rohrer's Appeal, supra; Trader's Bank v. Campbell, 6 Bank. R. 353; Cook v. Whipple, 5 N. Y. 150; Cook v. Waters, 9 Bank. R. 155. As to the effect of the agreement to revive the lien: Trader's Bank v. Campbell, supra.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 10th 1875.

The errors assigned to the charge of the court, except the third, may be dismissed with the general remark that they are not sustained. We have no doubt of the jurisdiction of a state court to entertain such an action, and although in an ordinary case it may be doubted whether a bonâ fide creditor who has received from a sheriff the amount of his claim and may in good conscience retain it, though the payment to him was by mistake, can be compelled by an action to refund, yet in this particular class of cases that question is precluded by the express provision of the thirty-fifth section of the Bankrupt Act that "the assignee may recover the property, or the value of it, from the person so receiving it or so to be benefited," in contravention of the enactment as to fraudulent preferences.

We think, however, that there was error in so much of the charge excepted to as instructed the jury that when a subsisting debt is secured by judgment, and "a revival is taken merely to extend the lien thereof, it is an act done out of the usual course of business, and being so done, it was the duty of the defendant to make an inquiry as to the solvency or insolvency of Knerr, and on failure to make the inquiry, the presumption follows, that the defendant would have found reasonable cause to induce the belief that Knerr was insolvent or was contemplating insolvency. There being no evidence that such inquiry was made, you are instructed that this requisite has been established," namely, that the defendant, Kemmerer, had reasonable cause to believe that Knerr was insolvent.

That the learned judge was supported by some of the bankrupt decisions in the Federal courts, prior to the determination of the Supreme Court of the United States, in Wilson v. City Bank, 17 Wallace 473, must be conceded. But the Supreme Court in that...