1804.

LANG

υ.

executor of a deceased partner cannot in such case be pursued. But here the survivor is a certificated bankrupt; to pursue him is impossible. The only security of the plaintiffs is in the fund KEPPELE. of the deceased partner, which can be reached in this way alone; and this court, giving effect to equity principles, will permit us to get at the fund, without regard to the strict ule of law. Pollard v. Schaffer. (a) This is every day's practice in Chancery. Lane v. Williams (b), Stephenson v. Chiswell (c). Our claim in equity is indisputable, for each partner is liable for the whole debt; and on a judgment against two partners execution may be levied on the goods of one.

But at all events the defendant should have pleaded this matter in abatement. Rice v. Shute (d), Abbot v. Smith (e), Addison v. Overend (f).

Levy for the defendant, argued that a plea in abatement would have been ill, for he could not have given the plaintiffs any other party liable to suit. Besides, the objection is not that you should have joined Zantzinger, for that would have been irregular, but that you cannot sue the executrix at all under the present circumstances; it is to the action and not to the exclusion of the surviving partner that we object. If however a plea in abatement would have answered, it is made unnecessary by the declaration, which of itself shews that the action does not lie. Chancery proceeds against the fund, but our courts against the person; and if a proper party is wanting, notwithstanding equity is a part of our law, the jurisdiction fails. It is for the legislature to find the remedy. The rule of law is clearly against the plaintiffs.

At the conclusion of the argument all the judges were of opinion that the plea in abatement would have been ill. At the same time upon the principal question, SHIPPEN C. J. YEATES J. and BRACKENRIDGE J. were for the plaintiffs; but no opinion was given till this day, when SMITH J. expressed his assent to the opinion of the court for the following reasons:

SMITH J. The reasons assigned in support of this action I have all along thought of much force; but I at first doubted

(a) 1 Dall. 212.
(b) 2 Vern. 292.

(c) 3 Vez. jr. 292.
(d) 5 Burr. 2611.

(e) 2 W. Bl. 947.
(ƒ) 6 D. & E. 766,

1804.

LANG

V.

whether sitting as a court of law we could give relief to the plaintiffs. I now think however that we are not controlled by the technical objection. The equity of the case is clearly with the plaintiffs, for the contract entered into with partners is KEPPELE. always joint and several, each partner is liable to pay the whole, and contribution lies entirely among themselves. The partner who survives is in this case a certificated bankrupt, who can no longer be pursued; the partner who is dead has left assets in the hands of the defendant, which can be reached only in this way. It is therefore a fair case for controlling the form of action so as to give effect to the equity powers of this court.

Per CURIAM.

Judgment for plaintiffs.

HARRIS against FORTUNE.

Tuesday, September 18th.

THE plaintiff in this cause recovered judgment for a sum less if the plainthan was requisite to entitle him to costs, and then issued tiff levies by a ca. sa. upon which the debt, interest, and costs, were levied execution by the sheriff who paid them over to the persons respectively which he is interested.

costs to

not entitled, the court will compel

to refund

T. Ross for the defendant obtained a rule upon the plaintiff him by rule to shew cause why the costs up to the time of rendering judg-them, even ment, should not be refunded.

after they have been distributed

riff.

Franklin for the plaintiff now appeared to shew cause, and by the sheurged that the rule was of a very novel nature; that if the defendant had not been compellable to pay costs, they might have been stopped in the sheriff's hands until a hearing in court; but that after they had been paid over, and all proceedings in the cause exhausted, up to the final distribution of the money, it was irregular to open the cause by taking a rule in it. The proper remedy was by action.

Per CURIAM. The plaintiff was the cause of the irregularity by issuing execution for more than was due to him; and as the process of the court was made use of to compel the defendant to pay what by law he was not bound to pay, this summary proceeding in the cause is the proper one to enforce repayment.

Rule absolute.

1805.

Friday,
September

13th.

A. as agent

for B., and to

Lessee of FRAZER and others, Assignees of GREEVES a bankrupt, against HALLOWELL.

THIS

HIS was an ejectment for a house and lot in the city of Philadelphia; and the following case was therein stated debt due to for the opinion of the court, to be considered as a special verdict.

secure a

him, takes

a mortgage

of real estate

in his own

the debtor,

and then ob

tains a re

lease of the equity of redemption. A.retains the title deeds and B. receives the rents and

66

"On the 17th day of March 1797, John Shields executed a name from mortgage of the premises in question to the defendant to secure a debt of 1207 dolls. 50 cts. On the 20th day of August 1800 the assignees of John Shields, by indorsement on the mortgage, released the equity of redemption to the defen"dant. This mortgage was taken in the defendant's name, to secure a debt due by John Shields to Thomas Greeves, and for "his use, and the release was executed to the defendant for the "said Greeves's use." [A supplementary case stated among profits. Af other things that the debt was by a note purchased in the terwards A. market for Greeves, which Hallowell undertook to secure; notes to B., that the name of Greeves did not appear in the transaction, and finally takes them nor was it known to Shields; and that the mortgaged premises up, shortly were put up at public sale at the request of Shields, and B. is declar. bought in by Hallowell, after which Shields's general assignees ed a bank released.]

lends his

after which

rupt. B.'s assignees can

not recover

"After the release was executed, which with the mortgage always remained in the defendant's possession, the defendant the premises lent Thomas Greeves his notes, which were discounted at the "bank of Pennsylvania for his the said Thomas Greeves's use, "and which were frequently renewed till the 7th day of August "1802, when the defendant paid for the said Thomas Greeves

from A. until
they reim-
burse him
the amount
so paid for
B.

one of those notes amounting to 650 dolls. and on the 2d day "of September following paid another for him of 500 dolls.

"After Thomas Greeves stopped payment and before the issuing of a commission of bankruptcy against him, the de"fendant told Greeves that he would keep the estate in question "till he was reimbursed the 1150 dolls., which he had thus "paid for him; but it is admitted that the mortgage and release "were not originally executed to the defendant for the purpose "of securing any debt due by Greeves to him, nor was any agreement subsequently made that the defendant should hold "the estate as a security for any money owing by Greeves to

1805.

FRAZER

υ.

WELL

“him. It is also admitted that Greeves received the rents and "profits of the premises up to the time of his bankruptcy. "On the day of December 1802 Greeves was declared a bankrupt by the commissioners under a commission lawfully HALLO"issued against him dated the 19th November 1802, and the "commissioners on the 21st December 1802 made a general "assignment in the usual form to the lessors of the plaintiff, of "all the estate and effects of the said Thomas Greeves for the "use of his creditors.

"If upon the above facts the court shall be of opinion that "the lessors of the plaintiff are entitled to recover and hold the "premises in question to be appropriated to the use of the "creditors of Thomas Greeves generally, then judgment to be "entered for the plaintiff. But if the court shall be of opinion "that the premises in question ought to remain as a security in "the hands of the defendant for the monies due to him by “Thomas Greeves, and that the lessors of the plaintiff are not "entitled to recover and hold the same until the said monies "are reimbursed to the defendant, then judgment to be entered "for defendant."

It was argued in December term 1804, by Dallas and W. Tilghman for the plaintiff, and by Condy and E. Tilghman for the defendant.

For the plaintiff. A person whose name has been used as the grantee in a conveyance, but who has paid no purchase money, expended nothing upon the trust, received none of the rents and profits, a mere name on the papers, lends money upon a distinct transaction to the real owner who becomes bankrupt, and then claims a lien on the property for his debt. This is the defendant's claim, and it is against equity as well as law. We represent the general creditors who have more equity than the defendant, and we are upheld by the bankrupt law. In Pennsylvania such a claim is out of the question, for here the owner of the trust is the master of the legal estate. He may bring ejectment for it in his own name. Kennedy v. Fury. (a) His wife is dowable of it. A judgment against him is a lien upon it, by which it may be taken in execution; and no conveyance of the

(a) 1 Dall. 72.

1805.

FRAZER

v.

WELL.

trust after judgment will defeat the creditor. If A. uses B.'s name at the land office and pays the money, he has the title and may sell the land; it is every day's practice; and it never was HALLO- heard of that B. could hold the land until a debt due to him by A. was paid. In all these particulars we deviate from the law of England; for there the complete legal estate and the control over it are in the trustee; so much so that if after judgment against cestui que trust and before execution sued, the trustee conveys the lands, they cannot be taken in execution. Hunt v. Coles et al. (a) If therefore any English cases favour the defendant, it is upon principles which do not apply here. One ground upon which they there make the legal estate in a mortgagee a security for claims that do not arise out of the mortgage, is because when the mortgagor or his heir or assignee comes to foreclose they apply the principle that he who asks equity must do it. But here we ask no equity, we are entitled to this estate at law, our very process is ejectment. Another ground is that by compelling the plaintiff in the bill to pay other debts to the defendant, they avoid a circuity of action; but where an action will not do the same thing the ground fails. Thus upon a bill to foreclose, a mortgagee may tack his bond to the mortgage as against the heir, because when the land is redeemed it becomes assets in the hands of the heir; but it cannot be done as against third persons. Lowthian v. Hasel (b). The court never allows it against creditors. 2 Vez. 162. Anon. Another ground is an agreement or presumed agreement that the legal estate shall stand as a further security. But the present case states no agreement; on the contrary it states facts which negative an agreement.

The case being clear of these principles how does it stand upon authority in the particular case of trusts? So far as the silence of the books is an argument, it is with us. For the only decision apparently against us is in a note in 2 Cha. Ca. 87. very imperfectly reported; and there the trustee bought the estate with his own money; and was also the general agent of cestui que trust. Equity therefore would not give Lord Dacres the land without paying Crompe all he owed him for his agency, of which this land was but an item. The language which is constantly used, that trustees should be saved harm