Speed v. May

• Decision Date: 23 August 1851
• Citation: 17 Pa. 91
• Parties: Speed v. May.
• Court: Pennsylvania Supreme Court

17 Pa. 91

Speed v. May.

Supreme Court of Pennsylvania.

August 23, 1851

1851

1. The legal situs of personal property follows the domicile of the owner, and the law of the actual situs protects the claims of creditors domiciled there, only against transfers by operation of law; Therefore, a voluntary assignment made by the owner in Maryland who resided there, passed the property in a claim in Pennsylvania to the assignee, and his right was not divested by a foreign attachment issued in Pennsylvania subsequent to the assignment.

2. The lex fori controls the remedy as respects personal property, but the law of the domicile regulates its transfer: It was therefore held that a voluntary assignment in Maryland of personal property was valid as to a claim in Pennsylvania included within its terms, though it was not recorded in this State in pursuance of the fifth section of the Act of 24th March 1818, and though the assignees did not act as required by our Act of 14th June, 1836, relating to assignments for the benefit of creditors.

ERROR to the Common Pleas of Union county.

In this case, Joseph J. Speed, assignee of Lewis H. Giese and James H. Giese, lately doing business in the name of Giese & Son endorsees of Geo. Gundrum, were plaintiffs, and William J May and Reuben Klose, late partners, trading under the firm of May & Klose, were defendants.

The parties to this case, at May Term, 1851, agreed to submit to the court the following as a case stated, in the nature of a special verdict, with leave to either party to remove the judgment of the court thereon to the Supreme Court by writ of error.

The case presented the question, whether the voluntary assignment for the benefit of creditors, to the plaintiff, made in the state of Maryland, by residents there, entitle the plaintiff to a chose in action locally situate in the state of Pennsylvania against a foreign attachment, issued at the suit of the defendants, who are citizens of Pennsylvania, after the execution and delivery of said assignment.

Case stated.--" On the 28th day of September, 1848, William Boyer and Jacob Zimmerman, as partners, trading under the name of W. Boyer & Zimmerman, made their promissory note for the payment, fifteen months after date, to the order of G Gundrum, of $537.50, without defalcation, for value received, which note was in due form endorsed by the said G. Gundrum, and the amount of said note ordered to be paid to Lewis H. Giese and James H. Giese, then partners, and trading in the name of Giese & Son. On the 12th day of January, 1850, the said Giese & Son, having been unable to meet and pay all their debts as their payments were demanded, executed an assignment of all their partnership property, real, personal, and mixed, of whatsoever kind, or wheresoever found, including ‘ all book accounts, bonds, bills, notes, evidences,’ & c., to the said Jos. J. Speed, in trust for the benefit of their creditors [ Pro ut said assignment as well as a previous assignment dated the 5th May, 1849, referred to in the one of the later date]. Among the property and assets of the said Giese & Son, which came into the hands and possession of the said Joseph J. Speed, by virtue of the aforesaid assignment, was the aforesaid note of Boyer & Zimmerman. To February Term, 1850, No. 40, an action was brought, on the said note, by the said J. J. Speed, as assignee of Giese & Son, against said Boyer & Zimmerman, and a judgment was rendered in favor of the plaintiff on the 22d May, 1850, for the sum of $550.91. A fi. fa. was issued on the judgment No. 22, of February Term, 1851, by virtue of which the sheriff made the debt, interest and costs of said judgment--the amount of the debt and interest is $574.98,--which sum the sheriff has ready to be paid over to the persons entitled to the same, and is considered by the parties to this case the same as if he had paid the money into court. On the 9th day of July, 1850, William J. May and Reuben Klose, late partners trading under the firm of May & Klose, issued a foreign attachment in the Court of Common Pleas of Union county, No. 29, of September Term, 1850, against Lewis H. Giese and James H. Giese, lately trading under the firm of Giese & Son, with notice to William Boyer & Jacob G. Zimmerman, garnishees. To this attachment the sheriff made return that he had served the same on Boyer & Zimmerman, on the 10th of July, 1850, by attaching ‘ all debts, bonds, notes, judgments, and liabilities due by said William Boyer & Jacob G. Zimmerman, particularly a certain judgment in the Common Pleas of Union County, No. 40, February Term, 1850, on which judgment was rendered against Giese & Son, on the 27th of February, 1851, for the sum of $2220.’ It is also agreed that the said Giese & Son resided in the city of Baltimore, in the state of Maryland, at the time of executing both the assignments, and that the latter one never was recorded in the county of Union, in the state of Pennsylvania. That the parties to the promissory note aforesaid, all reside in the state of Pennsylvania, except Giese & Son, and J. J. Speed. If from the foregoing facts the Court should be of opinion that the plaintiff is entitled to the money aforesaid, then judgment to be entered for the above sum of $574.98. But if they should be of opinion that the defendants are entitled to the same, then judgment for defendants. The costs of this case to be paid out of the funds."

Judgment was rendered for defendants. By the Court. A. S. WILSON, President.

It was stipulated in the assignment of 12th January, 1850, that after deducting for expenses and seven and a half per cent for commissions to Speed, he should apply the residue of the proceeds to or towards the payment and discharge of the claims of all the creditors of the said Giese & Son, equally according to their respective legal rights or to the payment in full of their claims, if the funds be sufficient for that purpose; and the residue, if any, after paying all the creditors of the said Giese & Son, ratably or in...