Thos. Wilson & Co. v. Thos. J. Carson & Co.

An order directing consignees “when in funds from sales of various shipments of bog product, to pay” certain named parties “the sum of $10,000, should the balance coming to us” (the consignors) “amount to that sum,” cannot defeat an attachment laid in the hands of the consignees, by creditors of the consignors, before the former had accepted the order, or in any way assented or agreed to, or recognised the appropriation of the fund to the specified purpose. Where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and, after notice to the drawee, it binds the fund in his hands. But an order either on a general or particular fund, for a part only, is not an assignment of that part, nor does it give a lien thereon as against the drawee, until he consents to the appropriation by accepting the order, or an obligation to accept may be fairly implied from the custom of trade, or the course of business. The testimony of two witnesses, (lawyers,) that they are of opinion a certain deed is, according to the laws of Kentucky, where it was executed, legal and sufficient to convey the property to the grantee, and that they know of no statute of that State alleeting this opinion, is sufficient proof oí the foreign law, and this being the only testimony on this point in the ease, and the question being whether the deed should he admitted in evidence, the proof is for the court. The recognition of the laws of another State in the administration of justice in this, is not a right, stricti juris, but depends entirely on comity, and in extending it, courts are always careful to see that tire statutes or policy of their own States are not infringed, to the injury of their own citizens. The act of 1729, ch. 8, sec. 5, requiring conveyances of personal property, whereof the grantor remains in possession, to be recorded within twenty days in the county where the grantor resides, applies only to deeds made in Maryland, and not to those made in another Stale. A deed of trust, for the benefit of creditors, executed in another State, in conformity with the laws thereof, though not executed, acknowledged or recorded in Maryland, transfers the title to personal property in Maryland, so as to defeat an attachment subsequently sued out in this State by creditors of the grantor residing here.

Appeal from the Superior Court of Baltimore city. Attachment on warrant issued out of the Superior Court of Baltimore city, on the 3rd of January 1854, at the instance of the appellants, citizens of Maryland, on a claim due them by E. Webb, Maxey óf Co., citizens of Kentucky, for $4847.96, and, on the 4th of January 1854, laid in the hands of T. J. Carson Co., as garnishees, who appeared to the writ and pleaded non assumpsit and nulla bona, upon which issues were joined. Exception. By the admissions and poof in the case, it. appears that the plaintiffs were citizens of Maryland, that the garnishees, Titos. J. Carson, Jos. Carson and Sami. C. Edes constituted the firms of T. J. Carson Sf Co., and Carson &p Edes, the former doing business in Baltimore, and the latter in New York, and both firms being one concern; and that the defendants, Ezra Webb, Wm. Maxey and Thos. G. Rowland constituted the firm of E. Webb, Maxey &f Go., which did a general factorage, commission and brokerage business in Louisville, Kentucky, and all the members of this firm, together with Wm. Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxey 4" Co., of Louisville, which pursued exclusively a slaughtering and pork-packing business, the former being the financial and shipping agents of the latter firm; that these two last mentioned firms failed in business, and, on the 31sf of December 1853, all the members of both united in a deed of trust or assignment to Wm. Riddle, of Louisville, the provisions of which are as follows: It conveys to the trustee a large amount of real estate in Kentucky, belonging to said Wm. Maxey, individually, and his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to said T. G. Rowland, individually, also certain slaves belonging to him, and his household and kitchen furniture; all the said Win. Teeter’s estate, real, personal and mixed; all the household and kitchen furniture of said E. Webb; certain real estate in Kentucky belonging to said E. Lewis Stoll, individually, and his-interest in a certain tannery in Louisville; all the warehouse furniture of said E. Webb, Maxcy ¿f Co., and the lease of the warehouse; all the accounts, debts, rights, choses in action, and personal property set out particularly in paper M., No. 1, made part of the deed; one hundred and sixty hogsheads of tobacco; all their interest in two hundred and seventy-two boxes of manufactured tobacco, shipped by E. Webb, Maxcy Co., to Penn & Mitchell, of Baltimore, and for which the latter gave their acceptances; all the shipments of produce mentioned more particularly in said paper M., No. 1, and on the faith of which the acceptances of the consignees were given; all said Rowland’s interest in the Farmers tobacco warehouse; and certain plank belonging to Teeter, Maxcy df Co.; in trust to sell and convey all said property, collect all the debts and choses in action, and out of the proceeds pay, first, the expenses of executing the trust, and for that purpose, the trustee may employ any agent or agents, and pay him or them a reasonable compensation; and secondly, to pay off the debts mentioned in a schedule also made part of the deed; and should there not be sufficient to pay all, then to pay them pro rata, with power to the trustee to sell and dispose of the effects so conveyed as he may deem proper, and most to the interest of the cestui que trusts; and also with full power and authority to compromise and compound, as he may think proper, any claim hereby conveyed. (This schedule of liabilities includes the debt for which the plaintiffs have attached, and an item of $30,862.15, specified as due “Wm. Teeter, being balance due on account of purchase of hogs on account of the house.”) The deed then declares that the transfer of the claim on Carson Sf Edes, and T. J. Carson Ó¡‘ Co:, and Lees &• Walter, is subject to drafts and assignments theretofore given by the grantors — 1st, to Gill, Anderson & Co.; 2nd, to Walters & Fox; 3rd, to Parmelee & Bro.; 4th, to Smith, Clark & Logan; and 5th, to B. & L. Leavell, and Conn & Ramsay. It then directs the trustees to defend certain attachments laid on a portion of the property conveyed, and then pending in the Louisville Chancery Oour-t, and which the grantors deem to have been improperly issued, and if the plaintiffs therein should be successful, the trustee is to pay the claims attached for, and if unsuccessful, then said debts are to he paid pro rata with the others. The deed then explains that the item of $30,862.15, rendered in the schedule of liabilities, is intended to cover claims and notes created by Win. Teeter, for purchases for said firm, in and for some of which he has executed the notes of Teeter, Maxcy <§• Co., which debts so created are designed to be secured by this deed, and the trustee is to pay the same with the other debts specified in the schedule. The deed is executed by the grantors in their individual names, and by the two firms in their co-partnership names, and also by Riddle, the assignee, as an acceptance of the trust, and, on the same day, was recorded in Keetuekey, but was never stamped nor recorded in Maryland, and no affidavit as to the consideration was made by the grantee. The claim of the plaintiffs, on which the attachment issued, was admitted to be correct, and it was further admitted, that neither of the defendants was, at the time the attachment issued, a citizen of Maryland, nor did either of them then reside therein; that Jos. Carson, one of the garnishees, was in Madison, Indiana, at the end of the month of December 1853; that at the time the attachment issued and was laid, there was a large amount of produce, consisting of pork, lard, bacon, and other provisions, in the hands of the garnishees, T. J. Carson <$r Co., in Baltimore, which had been consigned to them, for sale, by E. Webb, Maxcy &p Co., of Louisville, and that afterwards, and before pleas filed, there accrued from the sale of said property, in the hands of the garnishees, over and above all advances made by said firms of T. J. Carson &f Co., and Carson Edes, the sum of $12,805; that the property consigned as aforesaid, was parcel of that mentioned in paper M., No. 1, attached to the above deed; and that the property mentioned in said deed is inadequate to pay the creditors named in the schedule of liabilities thereto annexed. The assignments of the proceeds of the property in the hands of T. J. Carson Sf Co., and Carson Sf Edes, referred to in the deed, were made on the 30th of December 1853, the day before the deed was executed, and consist of six drafts or orders, two of which are signed by E. Webb, Maxey Sf Co., and the others by Teeter, Maxey Co. They are all directed to T. J. Carson Sf Co., and Carson Sf Edes, with the exception of one, in favor of Gill, Anderson & Co., which is directed to Carson Sf Bro., and, in reference to this, two witnesses, examined under the commission, swear that notice thereof was. given to a man they call Joseph Carson, whose name the witnesses believe is T. J. Carson, at Madison, Indiana, on the 30th of December 1853. It was, however, admitted there was no such firm as Carson Sf Bro. The terms of these several orders are sufficiently stated in the opinion of this court, and their amount largely exceeds the funds now in the hands of the garnishees. In reference to the validity of the deed of trust or assignment, according to the laws of Kentucky, the testimony of' two witnesses was taken, under a commission sent to Louisville., Win. S. Bodley, one of them, testifies that he is acquainted with the laws of Kentucky, and has obtained that knowledge by study and practice there and in Mississippi, since the year 1825, and by being a Circuit Judge in Mississippi a short .time; that he has examined with care a copy of the deed in question, Shown him, and the clauses and provisions in said deed appear to be, according to the law of Kentucky, legal and valid, and sufficient to convey to the grantee therein the property mentioned by the deed, and intended to be conveyed; that he knows of no statute of Kentucky affecting the correctness of the above opinion, or bearing upon that point, and that the common, customary or unwritten law of Kentucky, in relation thereto, is above stated correctly, as he believes-Hamilton Pope, the other witness, says, I am acquainted with the laws of Kentucky, being a practicing attorney; I have examined the copy of the deed in question, and am of opinion that the clauses and provisions therein are, according to the Jaws of Kentucky, legal and sufficient to convey to the grantee the property set forth therein; I know of no statute of Ken t.ucky affecting the correctness of the above opinion, or bearing on the point; I was one of the counsel who advised and prepared the original deed. Several letters were also read in evidence, by consent, for any purpose for which they are admissible, viz: 1st, one from Riddle, the assignee, dated Louisville, 31st of December 1853, directed to Carson óf .Edes, New York, advising them that E. Webb, Maxcy Co., and Teeter, Maxcy Co., had that day assigned to him, for the benefit of their creditors, all their estate, real, personal and mixed, debts, &c., and directing them (Carson dp Edes) to take notice thereof, and to hold all property committed to either of their firms as subject to said assignment, and saying that a lien is recognised for advances made by them on the property consigned; 2nd, the reply of Carson §* Edes to the above, dated New York, January 6th, 1854, directed to Riddle, saying that his letter of the 31st ult. came to hand this morning, (January 6th, 1854,) and also informing him that an attachment was laid, two or three days ago, against E. Webb, Maxcy Sf Co., at the suit of T. J. Wilson <fc Co., of Baltimore, of the legality of which they know nothing, and further stating that some orders of E. Webb, Maxcy Co., to other parties, have also been advised, which they shall not, of course, accept; 3rd, a letter from the plaintiffs, T. J. Wilson & Co., dated Baltimore, January 4th, 1.854, to E. Webb, Maxcy Co., in which the writers say, “we were yesterday surprised by a dispatch from Messrs. Hutchins & Go., which stated you have refused to accept our drafts, and have made an assignment,” and also stating that they had attached the funds in the hands of Carson Sy Edes; and 4th, a letter from T. J. Carson 6f Co., showing that the sales of the property attached, except a small amount, were made by the garnishees, after the attachment was laid. The plaintiffs asked ten instructions to the jury, in substance as follows: 1st. This prayer asserts, that the deed of assignment of the 31st of December 1851, is no bar to the plaintiffs’ recovery against the garnishees, provided the jury find, from the evidence, that the plaintiffs never assented to it, and that Teeter and Stoll were members of the firm of Teeter, Maxcy Sf Co., and not of that of E. Webb, Maxcy liy* Co., and that the property and debts mentioned in the deed belonged, in part, to the firm of E. Webb, Maxcy 6f Co., and that for a large amount of the debts mentioned in the schedule annexed to the deed, the firm of E. Webb, Maxcy Sf Co., was not, in any manner, liable, and that William Teeter, mentioned in said schedule, is one of the grantors in the deed, and that the firm of E. Webb, Maxcy dr* Co\, were; at the date of the deed, in embarrassed circumstances, and unable to pay their debts in full, and that the provision made by the deed was, and is, inadequate for such payment, and that the deed was not stamped, and not acknowledged, and not recorded in any office in Maryland, in which deeds and bills of sale can be recorded, within twenty days after its date, and that no affidavit was made that the consideration set forth in the deed was true and bona fide, as therein set forth, and that no bond was ever given by Riddle, the trustee, or by any one else,, conditioned for the faithful performance of the trust, and that no other person was ever appointed trustee in place of said Riddle; and that at the dat.e of the deed, the property attached by the plaintiffs existed specifically and unsold in the hands of the garnishees in Baltimore, as the property of the defendants, except as to the amount mentioned in the letter of the garnishees, read in evidence by consent, and that the proceeds of any sales made prior to the laying of the attachment, were applied to the advances made by the garnishees, and that the sum of $12,865, admitted to be in the hands of the garnishees, accrued entirely from sales made after the laying of the attachment, and that the garnishees had no notice of the existence of the deed until after the laying of this attachment-, and that the plaintiffs were, and the defendants were not, at the time-the attachment issued, citizens of Maryland, residing therein-. 2nd. This prayer asserts that the paper marked No. 2, (which is one of the draffs or assignments in favor of Walters, mentioned in the deed, as subject to which the claim on the garnishees was transferred, and which is signed by E. Webb, Maxcy dp Co., and directs the garnishees to pay, out of the balance of the proceeds of certain specified shipments of hog product, when sold, after deducting advances of $88,422.85, admitted to have been received from the garnishees, to Walters the sum of $6853, the same beiúg 'due him by Teeter, Maxcy ó/' Co.,) is not competent evidence to sustain the plea of nulla bona as to such part of the several article's therein specified, as remained in the hands of the garnishees, unsold at the time of laying the attachment’, provided the jury find, from the evidence, that any part of said articles were, at the date of said paper, and at the time of laying the attachment, and at the time when the garnishees first received notice of the existence of the paper, in the hands of the garnishees, and that the advances of $68,422.50, therein mentioned, had not, at any of said periods, been paid or satisfied in whole or in part, and that no means had been provided in any manner for payment or satisfaction thereof, except said shipments, and that the debt mentioned in said paper was the debt of Teeter, Maxcy Co., and not that of K. Webb, Maxcy Sf Co., and that Teeter and Stoll were two of the members of the former, and were not members of the latter firm, and that said paper was never accepted by the garnishees, and Was not presented to, or its contents made known to them, or either of them, before or at the time this attachment was laid. 3rd. This prayer asserts that the paper marked No. 3, (which is the assignment or draft in favor of Parmelee & Bro., referred to in the deed, and also set out in the opinion of this court,) is not competent evidence to sustain the plea of nulla bona as to such parts of the shipments therein referred to as remained in the hands of the garnishees, unsold at the time of laying the attachment, provided the jury find, from the evidence, that any part of said shipments were in the hands of the garnishees, in the city of Baltimore, at the date of said paper, and at the time of laying this attachment, and at the time the garnishees first had notice of the paper, and that the garnishees never accepted said paper, or assented to the direction therein contained, and were not notified of its existence or contents until after the laying of this attachment, and that the sum of $10,000, therein mentioned, was not due by the defendants in this suit. 4th. That the following portion of the evidence of Wm. S. Bodley, viz: “the clauses and provisions in said deed appear to be, according to the law of Kentucky, legal and valid, and sufficient to convey to the grantee therein the property by said deed mentioned to be conveyed,” is not legal and competent evidence to go to the jury. 5th. That so much of the evidence of said Bodley as is specified in the preceding prayer, is not sufficient evidence of what were the laws of Kentucky, as applicable to said deed. 6th. That the burden of proof is on the garnishees to prove, as facts, what are the laws of Kentucky, applicable to said deed, if they mean to contend that those laws, as applicable thereto, are other or different from the laws of Maryland. 7th. That said deed was not, and is not, a good and valid assignment or transfer of property which was in the hands of the garnishees at the time of laying this attachment, and that in the absence of proof that the laws of Kentucky, as applicable to it, are other or different from the laws of Maryland, it is to be assumed that the laws of Kentucky, as applicable thereto, are the same as the laws of Maryland. 8th. That the following portion of the evidence of Hamilton Pope, viz: “am of opinion that the clauses and provisions therein contained are, according to the laws of Kentucky, legal and sufficient to convey to the grantee the property set forth therein,” is not competent and legal testimony to go to the jury. 9th. That so much of the testimony of said Pope as is recited in the preceding prayer, is not legal proof of what are the laws of Kentucky, applicable to said deed. 10th. That said deed was not, and is not, a good and valid assignment of so much of the property of the defendants, E. Webb, Maxcy Sf Co., consigned by them to the garnishees, for sale, as remained unsold in the hands of the garnishees at the time of levying this attachment, and that said deed is not sufficient to sustain the issue joined on the plea of milla bona. The court (Frick, J.,) granted the second, ¿Airal and sutfA prayers, but rejected all the others, and decided that the testimony of Bodley and Pope, in relation to the law of Kentucky, was for the court, and not the jury, and that said testimony was legal and competent evidence, and accordingly instructed the jury that the clauses and previsions in said deed of trust were, according to the law of Kentucky, legal and valid, and, by such law, sufficient to convey to the grantee therein named the property by said deed mentioned to be conveyed. The plaintiffs excepted to the ruling rejecting their several prayers, which were refused, and to the granting of the instruction so given by the court. The verdict and judgment were in favor of the garnishees, and the plaintiffs appealed.