De Bearn v. Prince De Bearn

Burke, J., delivered the opinion of the Count. This is an appeal from an order of the Circuit Court Ho. 2 of Baltimore City, passed on the 9th day of December, ⁶⁸⁶ 1910, sustaining a demurrer to the cross-petition of the appellant filed in the cause on October 27th, 1910. The circumstances under which the cross-petition was filed are fully stated in the opinion of Chief Judge Boyd, filed April 5th, 1911, in the case of Prince de Bearn v. Winans et al. After referring at some length to the prior controversies over the bonds involved in this case, and to the pending attachments, and also to the’petition of the Prince filed October 21st, 1910, the opinion proceeds as follows: “The attaching creditors filed an answer and a cross-petition, in which they alleged that the appellant had filed in the Court of Appeals a petition praying that the lower Court should be directed to forthwith sign an order turning over to him or his solicitor and attorney in fact the bonds referred to, but that said petition was dismissed by this Court, and that he then took an appeal to this Court from the decree of June 6th. They also alleged that the attachments were still pending.

A demurrer to the cross-petition was sustained, and hence it will be unnecessary to discuss that at length, further than to say that the learned Judge who sustained the demurrer but also dismissed the petition of the appellant, filed an opinion in which, as well as in the orders passed by him, he gave the reasons which induced him to adopt the course pursued by him. As to the demurrer, he took the position that if the effect of the decision of this Court in 111 Md. was to make the bonds subject to attachment, there was no occasion for a Court of Equity granting the relief sought in the cross-petition, and if, on the other hand, they were not in such condition as to be subject to attachment, and in order to make them so, it was necessary for a Court of equity to change or modify them, then in his opinion that Court had no power to change the form of property, so as to make it subject to attachment, when it was not subject to attachment in its present form, and should not aid the statutory remedy of attachment by altering the form of property. In the cross-petition the attaching creditors had asked the Court to pass an order declaring the distribution and registration of the ⁶⁸⁷ bonds in the names of the infant children to be illegal, invalid.and of no effect; that the bonds be brought into that Court by the American Bonding Company