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Landlord and Tenant Statute (see ch. 601, after he had made a general assignment for Gross, Stat., 412) speak of distress for rent. the benefit of creditors of all his property, real The 6th section prescribes the manner of pro-and personal, on the ground that the assignee 390*] ceeding, but the 7th *recognizes the ex- of the tenant could not hold the goods free istence of the right itself, and is in these from the lien of the landlord; that the aswords: in all cases of distress for rent it shall signee took the goods of the assignor as a volbe lawful for the landlord, by himself, his unteer, and subject to all the liens to which agent or attorney, to seize for rent any personal they were then liable. property of his tenant that may be found in the county where such tenant shall reside, and case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant. The 8th section declares that "Every landlord shall have a lien upon the crops growing or grown upon the demised premises in any year, for rent that shall accrue for such year.'

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This decision evidently proceeds on the idea that the statute created a greater and different lien in favor of the landlord than is given by the common law right of distress. But the court, in the recent case of Hadden ▼. Knickerbocker, not yet reported [70 Ill., 677], while adhering to the point actually decided in O'Hara v. Jones, repudiate this idea and say that the lien is given the landlord upon growing crops, "But no specific lien is given upon other property of the tenant." This case protects bona fide purchasers who have paid value for the property, with notice that rent was due the lessor and that he was about to distrain, although in O'Hara v. Jones it would seem that purchasers are not to be treated as bona fide unless they bought without notice.

It is argued that the basis of the decision in O'Hara v. *Jones is that the land- [*392 lord's lien for rent is superior to that of a creditor holding under execution or attachment, and there are expressions in the opinion which tend in that direction, but the court to reach that conclusion would be obliged to overrule Rogers v. Dickey, 1 Gilm., 636, and this case is not even noticed in the opinion of the court.

These are the only provisions of the statute material to the present inquiry, and they indicate clearly enough the intention of the Legislature on the subject. Manifestly, it was the purpose to make a distinction in this regard between agricultural products raised on the farm and the general personal property of the tenant in the country. If this were not so, why introduce the 8th section into the law at all, for the right of distress was conferred without it? The distinction was doubtless owing to the fact that agriculture is now, and was at the passage of the law, the chief industry of the State. It could work no serious injury to trade if one kind of property alone were subject to a statutory lien; but to extend this lien to all the personal property owned by a tenant in the county would interfere with it The question in Rogers v. Dickey, as stated very materially. Be this as it may, the stat- by the court, was "Whether an execution, deute does in express terms confer a lien upon the livered to the sheriff and in his hands at the crops growing or grown upon the demised time a distress warrant was levied, took prepremises in any year for the rent of that year; cedence of the levy by the constable, where and recognizes, for other personal property in there had been no sale of the property levied the county, the right of distress as it existed upon." The property levied on was on the at common law. At common law the landlord demised premises, and the court, on full concould distrain any goods found upon the prem-sideration, held that the sheriff, who had in ises at the time of the taking, but he had no the meantime taken the property from the conlien until he had made his right active by stable, was justified in the proceeding; and actual seizure. A statutory lien implies se- this, too, on the general principles of law, for curity upon the thing before the warrant to no point is made of superior right in the levy seize it is levied. It ties itself to the prop-of the constable by virtue of the Landlord and erty from the time it attaches to it, and the Tenant Act. This decision could not have been levy and sale of the property are only means reached if, in the opinion of the court, the of enforcing it. In other words, if the lien landlord had a lien on the property prior to is given by statute, proceedings are not nec- the seizure under the warrant, for the court, 391*] essary to fix the status of the prop-in Miles v. James, 36 Ill., 401, held that the erty. But in the absence of this statutory lien it is necessary to take proceedings to acquire a lien on the property of the tenant for the benefit of the landlord. This the landlord is enabled to do in a summary way to satisfy the rent which is due him, and in this he has an advantage as creditor over creditors at large of the tenant. It is difficult to see why the tenant, subject to this dormant right of the landlord, is not as much the own er of his effects as any other person would be who owned property and owed debts.

The statute we are considering has been the subject of consideration at the hands of the Supreme Court of Illinois. And it is contended that O'Hara v. Jones, 46 Ill., 291, is authority for the position assumed by the appellant. The point decided in that case was, that the landlord had a right to distrain for rent upon the property of the tenant even

statutory lien of the 8th section on growing crops was a prior lien to an execution.

But it is unnecessary to consider the cases further, for whatever may be the scope of some of the decisions in the State, the exact point we are considering was decided, as we understand it, in the recent case of Hadden v. Knickerbocker, supra, and, indeed, the question does not seem to have been passed upon in any other case. If, as is said in that case, the statute creates no lien in favor of the landlord on the general property of the tenant in the county, until the levy of the distress appellant acquired any right to the property warrant, then the question arises, whether the in question by reason of his levy as against the assignee of the bankrupts and against the rights of the other creditors. It may become important in other cases to determine whether the lien acquired by the levy, to become opera

393*] tive, must not be *perfected in conform- seize the property and hold it for the purpose ity with the provisions of the statute on the of enforcing the claim of the landlord upon subject; but in the view we take of the rights it, and an ordinary attachment upon mesne of the parties to this suit, it is not necessary to consider the question. The question might arise where the levy was before the filing of the petition in bankruptcy, and the subsequent proceedings, taken after this was done, were not in conformity with the provisions of the statute. The levy in this case was, however, made after the institution of bankruptcy proceedings, but before the decree in bankruptcy was rendered.

The 14th section of the Bankrupt Act declares that the assignment in bankruptcy shall relate back to the commencement of proceedings, and by operation of law vest the title of the estate of the bankrupt in the assignee, notwithstanding the same is then attached on mesne process as the property of the debtor. It is argued that a distress warrant, being the act of the landlord himself, is not an attachment upon mesne process. This is true according to the technical signification of the term, but the meaning of the term in this connection embraces any proceeding by which a lien is first acquired. The object of the law was evidently to prevent anyone procuring a lien after the filing of the petition who had not got it before. If the lien existed before the filing of the petition, it could be enforced in the bankrupt court; but if it did not exist, the purpose of the law was to prevent its being brought into existence by any proceed ing whatever. If this were not so, as soon as it was known that the petition was filed the provisions of the law might be easily evaded. The main purpose which the Bankrupt Act seeks to accomplish is to distribute the property of the bankrupt equally among his creditors; and in order to do this the creditor who has not, when proceedings are begun, such a security as binds the property is prevented from obtaining it, and thus securing a preference over another creditor. There is no good reason why the law should protect a landlord in the issuing of a distress warrant, and repudiate an equally meritorious creditor in the levy of an attachment. If a distress warrant, where no further proceedings are necessary 394*] *to perfect the lien, is not, strictly speaking, an attachment upon mesne process, yet, under the Illinois Statute, as has been remarked by an eminent judge (In re Joslyn, 2 Biss., 241), it is in the nature of mesne process. The statute requires that a copy of the distress warrant be immediately filed in court; the party against whom it issues, summoned; the amount due from him ascertained and entered upon the records of the court. It is then made the duty of the court to certify to the officer making the levy, the amount of the debt, and this certificate is his authority to make the sale, which certificate, with the proceedings indorsed upon it, must be returned into court. It will thus be seen that the landlord, after he levies his warrant, can progress no further until the court has sanctioned the proceeding. The certificate that is issued, if not final process in the ordinary sense of the term, resembles it; and the distress warrant, if not mesne process issuing out of a court, is similar to it. The effect of the distress warrant is to

process does nothing more for the general creditor. Both have to be returned into court and action taken on them before the property can be sold. Each is process through which a lien is obtained, but by neither can the lien be made available, unless through some final proceeding. There is, therefore, sufficient similarity between these processes for the distress warrant to be treated as a writ in the nature of an attachment upon mesne process.

But we do not want to rest our decision on this point alone, for the 14th section of the Bankrupt Law is not leveled at the mode of doing a thing, but at the thing itself. It was the object of this section to prevent the acquisition of any other liens than such as existed when the petition in bankruptcy was filed, and any proceeding by which this is attempted is within the condemnation of the law.

The result of these views is, to affirm the judgment of the Circuit Court.

JAMES S. FRENCH, Appt.

v.

ALEXANDER. HAY.

(See S. C., 22 Wall., 231-238.)

Assignment on condition-rights of parties.

ments upon the assignee's paying $5,000, and gave 1. Where one assigned to another certain judgthe assignee a power of attorney to dispose of the judgments for him and in his name, the judgments do not pass to such assignee without the payment of said sum.

2. If the judgments were collected by the assignor and he holds the money for the assignee, the assignee has a complete remedy at law for it, and a bill in equity for it cannot be sustained. If not so collected, the assignee has no claim against the assignor. [No. 191.]

Argued Feb. 12, 1875.

A

Decided Mar. 1, 1875. PPEAL from the Supreme Court of the District of Columbia.

The case is stated by the court. The assignment and the power of attorney of Aug. 24, 1860 (Exhibits B and C), referred to by the court, were as follows:

Exhibit B.

For and in consideration of the sum of $5,000, with interest from this date, I hereby assign and transfer to James S. French, Alexandria, Virginia, all the judgments, notes or claims which I hold against said railroad company indorsed by James S. French and Walter Lenox, or by either of them; to be held by the said French, his heirs or assigns, as his individual property, upon his payment to me of the above named sum of $5,000, with interest from this date.

Given under my hand and seal this 24 th day of August, 1860. (Seal.)

Witness: Thomas Hay.

ALEXANDER HAY.

Exhibit C.
To all whom it may concern:

Be it known that I, Alexander Hay, of the City of Philadelphia, do hereby constitute and appoint James S. French, Esq., Alexandria, Virginia, my true and lawful attorney, for me, and in my name, to make such disposition as

he may deem proper of all the judgments, notes ! Mr. Justice Strong delivered the opinion of or claims, which I hold against the Alexandria the court: and Washington Railroad Company, or against said company indorsed by James S. French and Walter Lenox, or by either of them; to take all necessary steps for collecting the same, or to pledge or hypothecate the same or compromise or sell the same, upon such (terms) as he shall deem proper, or do with them what ever he shall choose as fully as if they were his individual property. And I do hereby, by these presents, ratify and confirm the same as fully as if I were present acting in person. Given under my hand and seal this 24th day of August, A. D. 1860. (Seal.)

ALEXANDER HAY. Witnesses: Andrew J. Boswell, Thomas Hay. Mr. Fred P. Stanton, for appellant: The sum of $5,000, with interest agreed to be paid by French to Hay, was not the whole consideration for the re-assignment. The rescinding of the original agreement and the money paid by French out of his own means for some of the judgments were important parts of the consideration.

The papers, B and C, were executed only to give French control of the judgment in pursuance of the more extended verbal agreement, which comprehended the whole transaction. Judgments may be assigned by parol.

Briggs v. Dorr, 19 Johns., 95; Ford v. Stuart, 19 Johns., 342.

The power of attorney, Exhibit C, was of itself a sufficient assignment of the judgments under the circumstances.

Gerrish v. Sweetser, 4 Pick., 374; Raymond v. Squire, 11 Johns., 47; People v. Tioga C. P., 19 Wend., 73.

An authority to collect a judgment or other chose in action, merely as collateral security for a debt, is a power coupled with an interest which cannot be revoked or annulled.

Wheeler v. Wheeler, 9 Cow., 34; Canfield v. Monger, 12 Johns., 346; Bromley v. Holland, 7 Ves., 28.

French agreed to repay the $5,000 with interest, but no time was specified. This implied a credit, and by all the authorities it was an agreement to pay on demand.

2 Pars. Cont., 552; Warren v. Wheeler, 8 Met., 97; Ryan v. Hall, 13 Met., 520; Barry v. Ransom, 12 N. Y. 462.

Hay made no demand and gave no notice. He assumed the right to annul the contract and take control of the judgments, on the ground that the assignment was conditional, and that the condition had not been performed. But, in truth, if there was any condition, it was to pay on demand; and this condition has never yet been broken.

Fairbank v. Phelps, 22 Pick., 535.

We, however, deny that the assignment was conditional in the sense stated. The stipula tion about the $5,000 amounted to nothing more than a lien for that amount, to be enforced by appropriate means.

The bill charges that, sometime in the year 1859, Hay, the defendant, agreed to advance to the complainant the necessary money to purchase the outstanding debts of the Alexandria and Washington Railroad Company, and that he did advance about $5,000 for that purpose; that, in pursuance of the arrangement, the complainant, in the year 1859, and winter and spring of 1860, bought up the indebtedness of the company to the amount of about $31,000; that the debts thus bought were reduced to judgment and assigned to the defendant; that in the purchase the complainant employed and paid out of the money advanced by the defendants, something less than $5,000, and that all the money over and above the said sum of $5,000 paid out in purchase of said debts (a list of which is attached to the bill, Exhibit B); was furnished and paid out of his own proper money and resources, in the expectation that the same would be repaid or otherwise satisfactorily accounted for by the defendant on a settlement. The bill then avers that, on the 24th of August, 1860, the defendant, by a writ ten assignment and power of attorney, transferred and assigned to the complainant all the said claims so purchased, reserving the repayment of $5,000, to cover the advances made. It is further charged that, notwithstanding the assignment, the defendant afterward collected all the said judgments and claims, and appropriated the proceeds thereof to his own use. Upon these averments an account is prayed for, of all the judgments and claims, and a decree that the defendant pay to the complainant all sums of money arising therefrom, with interest, after deducting the sum of $5,000, with any interest due thereon, so as aforesaid advanced to the complainants.

Such is the case as exhibited by the bill. It is plain that no other equity is asserted than such as grew out of the alleged assignment and power of attorney of August 24, 1860. There is none arising out of payments made by the complainant in the purchase of the debts and judgments. So far as it is charged by the bill, every dollar that was paid for the judgments was paid with the defendant's money, advanced by him to the complainant for the purchase. It is true the allegation is made that all the money over and above the $5,000 advanced, that was paid in the purchase of the debts, was furnished by the complainant out of his own resources, but it is not av- [*236 erred that any more than $5,000, in all were paid. It is, therefore, the alleged assignment of August 24, 1860, alone, which is the basis of the complainant's equity.

That instrument, however, called an assignment to assign. Construed with the power of ment, was, at most, but an executory agreeattorney made at the same time, it admits of no other construction. It reads as follows: Complainant's Exhibit B.

"For and in consideration of the sum of See, 2 Pars. Cont., 529, note (r) and the $5,000, with interest from this date, I hereby comments there, on the cases of Boone v. Eyre, assign and transfer to James S. French, of 1 H. Bl. 273, note, and Campbell v. Jones, 6 Alexandria, Va., all the judgments, notes or T. R., 570. claims which I hold against the Alexandria and Mr. A. G. Riddle and J. B. Stewart, for | Washington Railroad Company, or against said railroad company, indorsed by James S. French

appellee:

and Walter Lenox or by either of them, to be held by the said French, his heirs and assigns, as his individual property, upon his payment to me of the above named sum of $5,000, with interest from this date.

Given under my hand and seal this 24th of August, 1860. (Seal.)

(Signed)

Witness: THOMAS HAY."

A. HAY.

who were sureties for the payment of the debts, ever paid anything. In 1862, the railroad and property of the Railroad Company was sold under a deed of trust which the Company had given prior to any of the judgments, and Hay became the purchaser. He paid none of the purchase money with the judgments he held. He could not have paid with those judgments, for his bid was less than the sum due under The instrument was signed by Hay alone. the deed of trust, and that sum was prior in French, the complainant, did not sign it, and right to any of the judgments. Nor is there it is not averred that he promised to pay the any attempt to prove that any part of the pur$5,000. Hay undertook only that French chase money was paid by the judgments. The should hold the judgments and claims "upon evidence shows that, after Hay purchased, a his payment" of the stipulated consideration, new company was formed; that a portion of with interest from the date. And the power its stock was allotted to him; that he subseof attorney given by Hay to French at the quently sold the stock so allotted for a sum same time was an authority to deal with the se- greater in amount than the aggregate of the curities in the name of Hay, and for Hay. The judgments he held against the old company; power was worse than useless, if the intention and that after the formation of the new comof the parties was that the present ownership pany he caused satisfaction of the judgments of the judgment should be vested in French, to be entered of record. In no other manner without the payment of the agreed price. The than this is it now pretended that the judgutmost effect, therefore, that can be given to ments have been collected. The presumption these two instruments of August 24, 1860 upon of collection that might arise from the entries which alone the complainant must rely, is that of satisfaction, if unexplained, *is re- [*238 they amounted to an offer that if French would butted by the proof that all the defendant pay the $5,000 he should be the owner of the received was the proceeds of sale of his stock judgments. The transmission of the title and in the new company, by no possibility the fruit the payment of the price were intended to be of the judgments. And the complainant cancontemporaneous. If this is so, how long was not claim an interest in that stock or its prothe defendant under obligation to hold the ceeds, without affirming the trustee's sale of offer extended? No time for its acceptance was the railroad, and the subsequent formation of mentioned. The offer was made in August, the new company, followed by the issue of the 1860. The complainant never accepted it. No stock. Such a sale, if valid, would have deacceptance is averred in his bill. He never stroyed the old company, three quarters of the paid or tendered the $5,000; he never assumed stock of which the complainant owned. But to pay it. He asserted no claim to the judg- the sale has been judicially determined to have ments until 1868, when he filed this bill. Now, been invalid, the old company has recovered while it is true that, in equity, time is gen- the property and the new has been conseerally not considered as of the essence of a quently adjudged never to have had a legal contract, it is only true when compensation existence. The consequence of this is that can be made for its lapse, and the rule is inap-the complainant now holds his full interest in plicable in case of an offer that requires ac- the old company, unimpaired by any sale. ceptance to make a contract. In May, 1861, After this it is impossible to see how he can the complainant having given no indication assert that any part of the new stock or its of acceptance and having, so far as it appears, proceeds belonged to him; and if it did not, asserted no claim to the judgments, abandoned nothing has been collected for him, even if his home and did not return until 1865. Not he can be considered the owner of the judg 237*] until three years after his return *did ments. Nor has he been injured by the entries he commence this action. Was the defendant of satisfaction, for if he became the owner of under obligation to remain inactive and make the judgments by force of the instruments of no efforts to obtain the debts due him, uncer-August 24, 1860, as he avers, he is the owner tain whether French would ever elect to pay still, notwithstanding the entries of satisfacthe $5,000 and take the judgments? We think tion, for no one but the owner could cause not. Nothing in the instruments of August, valid acknowledgments of satisfaction to be 1860, imposed such an obligation. To say the made. For these reasons the decree must be least, therefore, it may well be doubted whether affirmed. the complainant has any right under those instruments that a court of equity will enforce. And were it conceded that, by the instrument through which he claims, French became the owner of the judgment, as between himself and Hay, we do not perceive how the concession could aid him in this case. If, as the bill avers, Hay collected the judgments and now holds the money for the use of the com- Partnership rights of assignee of one partner. plainant, there is a complete remedy at law. This is not a bill for discovery, and the aid of a court of equity is not needed.

But the judgments never were collected. It is not pretended that the judgment debtors ever paid anything, or that French or Lenox,

The decree of the Supreme Court of the district is affirmed.

*LOUIS E. AMSINCK et al., Appts., [*395

v.

WILLIAM C. BEAN, Assignee in Bankruptcy of Charles L. Kintzing.

(See S. C., 22 Wall., 395--406.)

1. The assignee of the estate of an individual partner of a debtor copartnership, cannot maintain a suit to recover back money previously paid to a creditor of the copartnership, upon the ground that the money was paid to such creditor in fraud of the other creditors of the firm, and in fraud of the provisions of the Bankrupt Act.

ty.

2. An assignee of the estate of an individual persons, and having stopped payment, a meetpartner has no such title as will enable him to calling of their creditors was held, at which the third parties to an account for partnership proper-debtor firm presented a statement of their 3. Money paid under such circumstances, if it liabilities and assets. Efforts were made at can be recovered back at all, must be claimed by the same time, by the debtors, to effect a comthe partnership in whose behalf it was paid, or by an assignee duly appointed to administer the promise with their creditors, and for that joint estate. purpose an agreement in writing was prepared, [No. 193.] by which the creditors who signed it agreed Argued Feb. 12, 17, 1875. Decided Mar. 1, 1875. to accept seventy cents on the dollar in full payment and satisfaction of their respective PPEAL from the Circuit Court of the Unit-claims, as shown by the amounts set opposite Aed States for the Southern District of to their respective signatures. Payment of the

New York.

The case is stated by the court.

Mr. Augustus F. Smith, for appellants: The bankrupt proceedings against Kintzing alone were ineffectual to vest in the assignee title to the partnership property.

Bankrupt Act, $ 36; General Order in Bankruptcy, 18; Re Shepard, 3 Bk. Reg., 42; Re Crockett, 2 Bk. Reg., 75; Re Lewis, Bk. Reg., 19; Re Prankard, 1 Bk. Reg., 51; Re Little, 1 Bk. Reg., 74.

Messrs. Edmund T. Allen and Edward B. Merrill, for appellee.

Mr. Justice Clifford delivered the opinion

of the court:

Partnerships engaged in trade are made subject to the provisions of the Bankrupt Act, and such a partnership, on the petition of the partners, or any one of them, or of any creditor of the partners, may be adjudged bankrupt. Individual partners also, if insolvent, may be adjudged bankrupt, even though the partnership of which the individual partner is a member is solvent and in good credit.

reduced amount due to each creditor was to be divided into three equal installments, at six, twelve and eighteen months from date, without interest. Such installments, if duly paid, were to operate as a release to the debtor firm of all liability of the firm to the creditors; but it was expressly stipulated that the agreement should not be binding, unless it was agreed to and signed by all the creditors of the debtor firm. Sixty-three of the creditors of the debtor firm, including the appellants, signed the agreement.

Whether the appellants were represented at the meeting of the creditors, or not, does not appear; but it does appear that they did not sign the agreement at that time. Their debt was double that due to any other creditor, and in order to procure their signature, the senior partner of the debtor firm went to New York and had an interview with one of the appel lants, to solicit their assent to the proposed compromise, to which the reply, in substance and effect, was, that if the other creditors assented they would not stand in the way, if the debtors would afterwards pay them fifty When such a partnership is adjudged bank- per cent. instead of the sum specified in the rupt, the provision is that a warrant shall is- agreement, in three equal installments, to wit: as provided in the 11th section of the one in cash, one third in thirty days, and the Act upon which all the joint stock and prop- residue in sixty days. Instructions were acerty of the copartnership, and also all the sep-cordingly given to their agent to affix their sig arate estate of each of the partners, shall be taken, except what is exempted from the operation of the Act; and all the creditors of the company, and the separate creditors of each partner, shall be allowed to prove their respective debts.

sue,

Assignees in such a case shall be chosen by the creditors of the company; but they are required to keep separate accounts of the joint stock or property of the copartnership, and of the separate estate of each individual member of the firm.

Expenses and disbursements of the assignee, in such a case, shall be deducted out of the whole amount received by him, and the provision is that the net proceeds of the joint stock or property shall be appropriated to pay the creditors of the copartnership, and that the net proceeds of the separate estate of each partner shall be appropriated to pay his separate creditors. Provision is also made for the appropriation of the balance, if any, either of the joint stock and property or of the separate estate of the individual partners; but it is unnecessary to enter into those details in this preliminary statement.

On the 15th of February, 1869, the firm of Charles L. Kintzing & Co., composed of Charles L. Kintzing and Malcolm A. Lindsay, was in debted to the appellants in the sum of $32,551.65, as appears by the record. They were also indebted in smaller sums to many other

nature to the agreement on two conditions: (1) That all the other creditors should first sign in the instrument. (2) That the debtors should agree to pay them fifty per cent. at the time specified, as more fully set forth in

the record.

Both of these conditions were substantially fulfilled, except that not more than two thirds of the creditors in number ever signed the compromise instrument.

Prior to that time the debtor firm had sus pended payment and from that time the senior partner of the debtor firm seems to have proceeded as if the copartnership was dissolved. With the tacit consent of the other partner, the assets of the firm passed into the exclusive possession of the senior partner, to be administered for the benefit of the creditors as contemplated by the compromise agreement. He took the stock of merchandise, made new purchases on his own account, transacted the business in his own name, and sold the old and new stock, mingling the funds as if all were his own, except that he kept separate books for each business, and the proofs show that the amount paid to the appellants was derived from such mingled funds.

Corresponding exertions were made to obtain the signatures of the other creditors, but without any further success. Consequently, the senior partner of the debtor firm continued to transact the business for some time, and on

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