D'Arcy v. Locust Point Co.

Irving, J., delivered the opinion of the Court. The facts of this case are undisputed. On the 10th of December, 1884, the appellee leased to Henry A. Ramsay certain property as a machine shop, and place of business, reserving the usual remedies by distress •and re-entry. The property was partially equipped for the objects of the lessee, and he not only covenanted to repair and replace such parts as might be worn out, but also covenanted, at his own expense “to equip the premises demised, with all such other plant and machinery as may be necessary for the successful prosecution of a general machinist business upon a large ²⁹⁰ and extended scale ; and that such additional plant and machinery, when so placed upon the premises demised, shall not at any time thereafter be removed from the premises, except for the purpose of renewing such plant and machinery as the same becomes worn out by use, or to replace it with other and more efficient plant and machinery for the prosecution of said machinist business; and that such plant and machinery, and all substitutions and renewals thereof, shall at all times, during the continuance of this demise, remain upon said premises, as security for the faithful payment of the rent hereby reserved, and for the performance of the covenants herein contained.” The lessee afterwards formed a partnership and conducted business until the 2nd July, 1888, when they were adjudicated insolvent debtors; and the appellants were appointed their permanent trustees in insolvency.

On the first of April preceding this adjudication, there was due for rent in arrear the sum of $9186; and after the adjudication, and before the distraint proceedings, which give rise to the questions presented on this appeal, two more quarterly instalments of rent amounting to $1644.00 fell due and in arrear. On the 8th of August the appellants filed their petition in the insolvent Court, averring that it was not for the interest of the creditors that they should accept the lease, into the possession of which they had not actually entered, and declined to accept the same, and asking the Court to ratify their action in so declining. The Court did, on the same day, ratify their action, and directed the trustees to notify the appellee of their refusal to accept the assignment of the lease, which notice was accordingly given to the appellee. The appellee having received such notification issued a distress, and under it took a lot of loose chattels found on the premises, consisting mainly of unfixed machinery and tools, and ²⁹¹ advertised them for sale for the payment of rent.

Thereupon the appellants asked of the insolvent Court, an injunction restraining the sale, on the ground that the property taken in distress belonged to the trust estate and was in custodia legis. Injunction was granted without hearing; and then the appellants asked for an order directing the appellee to deliver to them this property taken in distress, and for an order of sale of it. Both petitions were set for hearing, and the Oourt rescinded the order granting the injunction, and dismissed both petitions, “without prejudice to the rights of the insolvent trustees to the property in controversy, if any." From these orders the appeal has been taken, but before the appeal was taken, the sale under the distress proceedings had been made. For this reason, and because as the order was without prejudice, it was supposed not to be such final order as was appealable, and the appellee has moved to dismiss the appeal.

That motion must be overruled. The statute in broad language gives the right of appeal from any order of the Court in insolvent proceedings, and the appeal was taken within the statutory period of thirty days. Code, Art. 48, sec. 20. Under the certificate of the Oourt from which the appeal is taken, the only questions for our consideration are 1st.

Whether the Oourt of Common Pleas should and could restrain the appellee from proceeding by distraint, against certain chattels of the insolvent on the demised premises, issued subsequently to the adjudication of insolvency, for rent maturing partly before, and partly after insolvency declared, and after the election of the insolvent trustees not to take the lease; and 2ndly. Whether the Oourt should order the sale of those chattels, and should direct the landlord to deliver the same up to be sold, after the trustees in insolvency had refused to accept the assignment of ²⁹² the lease and notified the landlord thereof, reserving in the notification their rights in and to the chattels mentioned. The decision of these questions depends upon the character of the jurisdiction of the Court of