Bacon, Baldwin & Co. v. Jos. Horne & Co.

1. An assignment for the benefit of creditors, made in another state and executed in conformity with the laws of that state, will pass title to the property of the assignor in this state: Smith’s App., 117 Pa. 80. 2. The property of a foreign assignor situate in this state, however, is subject to foreign attachment at the suit of a resident creditor having no notice of an assignment thereof, unless the latter has been recorded in this state under the act of May 8, 1855, P. L. 415. 8. But where, at the time of the assignment, both the creditor and the assignor are residents of the foreign state where it is made, the creditor may not come into this state and seize property of the assignor in a suit in foreign attachment: Chemical N. Bank v. Tuttle, 17 W. N. 415, explained.

ERROR TO TTTE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 189 October Term 1888, Sup. Ct.; court below, No. 62 July Term 1887, C. P. No. 2. On September 15, 1885, F. M. Bacon, and others, partners as Bacon, Baldwin & Co., entered.a suit in foreign attachment against Henry Schoenwald, a non-resident. The writ was returned, as served the same day upon Jos. Horne & Co., as garnishees, and nihil, as to defendant. On April 17, 1887, judgment was entered against the defendant for 11,419.15, in default of appearance. A scire facias was then issued, to the number and term of the court below stated in the caption, and was served with interrogatories upon the garnishees, who answered and filed a plea of nulla bona. The cause came on for trial before White, J., on January 12, 1888. No testimony was taken, but upon the facts agreed upon by the counsel and submitted to the jury as the facts of the case, the plaintiffs asked the court to charge that under all the evidence, the verdict should be for the plaintiffs. The point was refused.1 The jury then returned, in the form of a special verdict, the facts hereinbefore stated, and further, that on August 11, 1886, Henry Schoonwald, the defendant, of New York city, made an assignment for the benefit of creditors, which was duly recorded; that at the time thereof Bacon, Baldwin & Co. were also residents of New York city; and that the garnishees were indebted to the defendant in the suit in the sum of $226.33; — subject to the opinion of the court whether, etc. On September 4, 1888, the court, White, J., filed the following opinion upon the question reserved: In a case precisely similar to this, the Exchange Bank v. Monitor Towboat Company, No. 51 October Term 1885, of this court, we held that the unrecorded assignment was good against a creditor of the assignor living in another state where the assignment was made and the assignee lived. Our decision was based mainly on a question of comity between the states, and the manifest injustice of permitting a creditor to escape from the forum which had jurisdiction over the assignment and over the assignor and his creditors, and by coming into this state, seize property and take it to the exclusion of other creditors. We thought the act of May 3, 1885, P. L. 415, was not intended to apply to such a case. Our decision in that case seemed to be satisfactory to the able counsel who argued the question before us. Our attention is now called to a recent decision of oxir Supreme Court, the Chemical National Bank v. Tuttle, 17 W. N. 415, which seems inconsistent with that case, but it does not appear from the report of the case cited that the question of comity was raised. It was ruled on a question of evidence as to what was sufficient to establish “actual notice.” If the question now suggested had been raised and decided in that case, of course we should cheerfully conform to it, as would be our duty, but we are often reminded that a decision is authority only for the questions raised and decided in it. We need not repeat what we said in the Exchange Bank v. the Monitor Towboat Company, but refer to the opinion filed in that case for our views. If this case must go to the Supreme Court, we think there is no injustice in requiring the plaintiff to _ take it up. The question of law reserved is ruled in favor of defendants, garnishees, and judgment ordered for defendants non obstante veredicto.3 Judgment having been entered for the garnishees, the plaintiffs took this writ and assigned as error: 1. The refusal of plaintiff’s point.1 2. The entry of judgment for the defendants.3 1. It would seem that the act of May 3, 1855, P. L. 415, was intended to protect property here, which may be subject to assignment in the bands of a non-resident, from attachment by creditors, 'foreign and domestic; and that is borne out by the fact that one of the duties of such non-resident assignee is to record his assignment in the county where the property may lie, which assignment shall have effect from its date. With this duty the assignee in this case failed to comply. 2. The act referred to provides that a bona fide creditor having a lien upon the property before the recording of the assignment in the county, and having no previous actual notice thereof, shall not be affected or prejudiced thereby. The plaintiffs in this case are admittedly bona fide creditors, and the record does not show they had actual notice of the assignment before the attachment was served. 8. The question of comity does not apply. The act of 1855 supplies practically what the theory of comity is intended to comprehend, and is sufficiently liberal in its provisions to cover the case at bar: Philson v. Barnes, 50 Pa. 230; Steel v. Goodwin, 113 Pa. 288; Smith’s App., 117 Pa. 30; Warner’s App., 13 W. N. 505; Chemical N. Bank v. Tuttle, 17 W. N. 415. 1. As against a citizen of other states, especially of the state where the assignment was made, the rule appears to hold without qualification, that an assignment valid by the laws of the state in which it is made, is valid everywhere, and a subsequent attachment by a citizen of that state will not hold as against the assignee; Bur rill on Assignments, § 810 ; Mulliken v. Aughinbaugh, 1 P. & W. 126; Speed v. May, 17 Pa. 91; Law v. Mills, 18 Pa. 187; .Bagby v. Railroad Co., 86 Pa. 291; High on Receivers, 2d ed., 241; Moore v. Bonnell, 2 Vroom 97; Bentley v. Whitmore, 4 Green, C. E., 466; Burlock v. Taylor, 16 Pick. 335; Sanderson v. Bradford, 10 N. II. 260; Bholen v. Cleveland, 5 Mass. 174. 2. Moreover, if the plaintiffs should be successful in this suit, they would have to turn the fund recovered over to the assignee in the state of New York: Van Buskirk v. Warren, 13 Abb. Pr. 145. It is submitted that'the courts of this state will not allow money to be recovered here which can be recovered back again by the defendant’s assignee at his own domicil. The cases cited by the plaintiffs wore cases where the attaching creditor was a resident of this state, and of course would be protected by the act of 1855. In Chemical N. Bank v. Tuttle, 17 W. N. 415, the question whether the doctrine of comity was applicable was not raised.