In re Denny — 2 Hill & Den. 220

Majority

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In the matter of Denny and others, trustees, &c. and The President and Directors of the Manhattan Company.

Headnote

The trustees of non-resident debtors claimed that certain shares of the capital stock of a foreign bank, which were standing upon the books of the agent of the bank in this state in the names of the debtors, and which had been assigned with the consent of the trustees to third persons and by the latter to the trustees, should be transferred to them by the agent. This was refused, and the trustees procured the appointment of referees in pursuance of the statute, (1 R. S. 801, § 20, 2d ed.) to settle the controversy. On the hearing, an objection was made to the jurisdiction of the referees, who reported in favor of the trustees subject to the opinion of the court. Held, that the referees had no jurisdiction of the case, the matter in controversy not being a debt within the meaning of the statute.

Semble, that neither trespass nor trover will lie in such a case; the appropriate remedy for a refusal to transfer, being assumpsit, or a special action on the case.

The act of 1813, “ for relief against absconding and absent debtors,” gave the power of appointing referees to settle controversies concerning any debt or demand, &c.; whereas the revised statutes omit the word demand, thus confining the power of a compulsory appointment of referees to narrower limits than the old act.

The word “demand” is of much broader import than “ debt" embracing rights of action beyond those which can properly be called debts; and is, .in this respect, a term of more extensive meaning than almost any other known to the law.

The word “ debt," in its ordinary and legal acceptation, imports a sum of money due upon contract express or implied.

The statute relative to attachments against absconding, concealed and non-resident debtors, is in derogation of the common law, and should not therefore be enlarged by construction.

Trustees were appointed under an attachment issued by Michael Ulshoeffer, first judge of the New-York common pleas, against Joseph Brown and Andrew Brown nonresident debtors, and afterwards, on the application of the trustees, referees were appointed by the same judge under § 20 of 1 JR. iS. 2d ed. 801. The referees reported, that on the hearing before them in pursuance of this appointment, it appeared that the Manhattan Company were the

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agents, in the city of New-York, of the Planter’s Bank of Tennessee, for the negotiation and transfer of the stock of said bank, and for the payment of dividends upon the same : That at the time of issuing the attachment and when the trustees were appointed, there were standing upon the books of the Manhattan Company, in the names of the said debtors by their copartnership names of J. & A. Brown and J. <fe A. Brown & Co. 281 shares of the capital stock of the said bank for which two certificates, under the seal of said bank, had been issued by said company. It further appeared, that before the attachment was issued the said shares were assets of a special copartnership consisting of J. & A. Brown, G. Crockett and D. Park, the business of which partnership was transacted in the name of J. & A. Brown: That the business and transactions of this special copartnership were adjusted and settled between the said trustees and Crockett &. Park by a report of referees appointed under § 19 of 1 R. S. 2d ed. 800, which report was made on the 29th November, 1837, and duly confirmed, and by which it appeared that at the date thereof, said special copartnership was indebted to third persons and in particular on a bill of exchange for 1210Z. 14s. id. sterling; and that said special copartnership was also indebted to Crockett & Park in the sum of $43,874.34; and by said report the said trustees were directed, 1. To apply the assets of said special copartnership, including the said 281 shares of stock, to pay the said bill of exchange and such other debts as might appear to be due from said special copartnership; and after satisfying them, then, 2. To apply the same assets including said shares of stock to the satisfaction of said debt due to Crockett & Park.

It further appeared that Joseph Brown having died, Andrew Brown, the survivor of J. & A. Brown, after the appointment of the trustees, and with their knowledge and assent, assigned the said 281 shares of stock to Crockett <fe Park, and that three days thereafter Crockett & Park assigned the same to the trustees, with other securities, for a

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loan of $25,000, part of the moneys belonging to the estate of J. & A. Brown.

It further appeared that in the month of September, 1830, the trustees produced to the Manhattan Company certificates of stock for the said 281 shares, and the evidence of their aforesaid title thereto, and requested the president to make, or permit to be made, upon the books of the said company, a transfer of the said stock to .the trustees, which was then, and at a subsequent time, on a like demand, refused.

It further appeared that there were five dividends upon the said stock due and unpaid in the hands of the said company.

The referees concluded their report by - stating, that their jurisdiction in the premises having been excepted to by ■ the counsel for the Manhattan Company; upon the ground that the matter did not come within the class of cases specified in the statute in which the trustees could compel a reference, they had specially reported the facts, in order that the question might be submitted to this court; and that if it should appear to the court that the referees had jurisdiction of the case, then they reported that there was due to the trustees from, said Manhattan Company, the sum of $35,668.96.

A motion was now made in behalf of the trustees for judgment on the report, which was opposed by the Manhattan Company, and a motion made in their behalf to' set aside the report. , .

& A. Foote, for the trustees.

S. Stevens, for the Manhattan Company.

By the Court,

By section 19 of the act respecting the powers, obligations, &c. of trustees, (1 R. S. 800, 2d ed.) it is provided, that if any controversy shall arise between the trustees and any other person, in the settlement of any demands against such debtor, (non-resi

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dent debtor, &c.) or of debts due to his estate, the same may be referred to three indifferent persons by the mutual agreement of the parties. By § 20, if such referees be not selected by agreement, the trustees may give ten days notice of an application to the officer who appointed them, &c. for an appointment, specifying the time and place: And by the subsequent sections, (§ 21, 22, 23, 24,) a compulsory appointment may be made, and a rule entered on certificate of the officer by the clerk of the supreme court—and the referees so appointed shall have the same powers, and be subject to the like duties and obligations, and shall receive the same compensation as referees appointed by the supreme court in personal actions.

The question here is, whether the subject in controversy is a debt due to the estate of the non-resident debtor, within the meaning of § 19 of the above statute.

The language of the old act, from which this provision was taken, is broader than that used here. The 16th section of the old act (1 R. L. 1813, p. 161,) provided, that in case of any controversy arising respecting any claim of a creditor, or concerning any debt or demand claimed by the trustees, &c. referees might be appointed in the mode pointed out by the section.

It would seem from this change of phraseology in the new provision, that the legislature intended to confine the power of a compulsory appointment to narrower limits than •formerly existed under the old law; for it is clear that the term “ demand ” is of much broader import than “ debt,” and would embrace rights of action belonging to the debt- or beyond those which could appropriately be called debts. In this respect, the term demand is one of very extensive import—among the most so indeed of any that are known to the law.

The ordinary and legal acceptation of the term, “ debt,” imports a sum of money arising upon a contract express or implied; (3 Black. Comm. 154;) and from the connection in Avhich it is found in the statute under consideration, I

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think was so intended to be used by the law makers.

The whole article of the statute relates to the powers, duties, &c. of the trustees in managing, collecting, and converting all the assets of the estate into money for the purpose of distribution among the creditors. By § 3 “ the debts and property of the estate may be collected,” See. By § 7, “ the trustees may sue and recover, See. all the estate, debts and things in action belonging or due to the debtor, See., and no set-off shall be allowed, &c. for any debt, unless it was owing to such creditor before publication.” By § 8, all persons indebted to the estate shall, by a day specified, “ render an account of all debts and sums of money owing by them,” See., and all persons “ having in their possession any property or effects of such debtor shall deliver the same,” &c. By § 10, the trustees may “ sue for and recover any property or effects of the debtor, or any debts due to him, at any time before the day appointed for the delivery or payment thereof.” By § 11, “ Every person indebted, &c. or having the possession or custody of any property or thing in action, Sec. who shall conceal the same, Sec. shall forfeit double the amount of such debt, or double the value of such property.”

Then comes the provision in question—§ 19 : “ If any controversy shall arise, Sec. in the settlement of any demands against such debtor, or of debts due to his estate, the same may be referred,” Sec.; which, in connection with the previous sections, and the distinction there kept up throughout between debts due the estate, and other assets consisting of property and rights resting in action, I think fairly indicate that the legislature had regard to. the same distinction, when using the like form of expression in respect to this summary mode of adjustment of the controversy. 11

This view also harmonizes somewhat with the statute authorizing the reference" of causes by the courts in which they are pending—a statute which has been long in use, and to which § 24"of the statute in question refers for the mode of conducting the proceedings after the entry of the rule appointing the referees.

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We may add, that the act is in derogation of the common law, and should not be enlarged by indulging in a liberal construction.

If we are correct in our conclusion, the controversy in question is certainly not a debt, within the meaning of the act; nor in the ordinary legal acceptation of that term as understood in the books. The claim is but a right or title to a certain species of property—stock in an incorporated company. It is no more a pecuniary demand against the defendants, resting in contract express or implied, than a valuable picture, or heirloom, to which title had been shewn. It is true, from the intangible nature of the thing, neither trespass nor trover can be brought, the appropriate remedy for a refusal to transfer being a special action on the case; and even assumpsit may be sustained founded upon the duty arising out of the obligation to make the transfer, and the peculiar character of this species of property.

No judgment can therefore be rendered in favor of the trustees, and the motion to set aside the report must be granted.

Ordered accordingly.