Glenn v. Boston & Sandwich Glass Co.

Mason, J., delivered the opinion of this court. The Court of Appeals, by two previous decisions, ( 6 Gill, 404 , and 2 Md. Rep., 1 ,) have decided, that there was no partnership existing between Kerr and Potter, that the property claimed as partnership property belonged to Kerr individually, and that Potter had no right to the relief for which he prayed in the court of chancery, namely, for the appointment of a receiver, an injunction, &c.; and the case in 2 Md. Rep. further decided, that the fund in the hands of the receiver previously appointed should be transferred to the trustee of Kerr, who, pending the chancery proceeding, had applied for the benefit of the insolvent laws. The plaintiffs in the present action, who are a foreign corpo ²⁹⁵ ration, were judgment creditors of Kerr, and upon their judgment issued an attachment, and had the same laid in the hands of Kerr’s trustee, Mr. Glenn, before the funds had been actually received by him from the receiver, and the question to be determined on this appeal is, whether the attachment under such circumstances can be sustained? The cases of Larrabee vs. Talbott, 5 Gill, 435; Evans & Co., vs. Sprigg, 2 Md. Rep., 457, and Duck vs. Poe, 5 Md. Rep., 1 , have settled, that the conveyance of property under our insolvent laws constitutes no impediment to the pursuit of such property for the payment of debts by foreign creditors; in other words, that the discharge of the defendant under the insolvent laws of this State did not impair the right of nonresident judgment creditors to obtain, by attachment or execution on their judgments, a preference over domestic creditors.

The defendant seeks, however, to except this case from the operation of this general principle, upon several grounds, none of which do we regard as tenable. The only two plausible grounds of objection to this proceeding are, first, that at the time the attachment was laid in the-hands of the trustee,, he had not received in his actual possession any of the funds of the insolvent;, and secondly, in thus-admitting the right of the trustee to claim the fund by virtue of the insolvent laws, these creditors have so far recognised those laws as to be bound by them. As we have said, it has been decided that the court of chancery had no jurisdiction over this ease as a partnership transaction, because, in fact, no partnership existed between Kerr and Potter, and that the property being Kerr’s, it passed to his trustee by virtue of his application for the benefit of the insolvent laws. This