Kerr v. Union Bank

Goldsboróúgh, L, delivered the opinion of this court. The appeal in this case was taken from a decree of the Superior court of Baltimore city, sitting in equity, by which the appellant was perpetually enjoined from prosecuting an action of trover, instituted in Baltimore county court oti the 28th day of April 1847, against the appellee, to recover damages ⁴⁰¹ for the conversion of certain promissory notes claimed by the appellant under an assignment from one Edward M. Kerr, and which being demanded, the appellee refused to deliver up. The bill of complaint of the appellee alleges as an excuse for its refusal, that though it had no claim to the notes in question at the time of the demand of the appellant, yet, before then, it had received notice from George M. Gill, Esq., attorney for a certain Moses Potter, that he claimed these notes as receiver, appointed to settle up the affairs of the partnership of Edward M. Kerr & Co., and that they formed part of the partnership effects. The appellee alleges as a further execuse, that subsequent to the demand of the appellant, “an attachment upon judgment in a certain action in which Sampson Tams was plaintiff, and Edward M. Kerr was defendant, issued out of the Circuit court of the United States for the district of Maryland, and was laid in the hands of your orators and of George M. Gill and others, as garnishees of Edward M. Kerr, which proceeding is still pending.” The appellee alleges as a still further execuse for the noncompliance with the demand of the appellant, that Edward M. Kerr, his assignor, applied for the benefit of the insolvent laws of Maryland, on the 4th day of May 1847, and John Glenn, Esq., was appointed his permanent trustee, and claimed these notes of the appellee, in his capacity of trustee of said Kerr, on the ground, that the assignment of Edward M. Kerr, as above, to John 1).

Kerr, was void under the insolvent laws of Maryland, as an undue preference by a debtor in failing circumstances and that the notes so assigned were partnership property. This case is in some measure divested of its complicated character as set forth in the appellee’s bill, by the admission of the parties, that “the attachment, of Sampson Tams, in said bill named, was finally disposed of before the filing of this bill, by a verdict and judgment against said Tams; and that in said attachment, said Tams did'not claim as against the complainant, or as against the defendant, John D. Kerr, the money or ⁴⁰² notes mentioned in the bill, as claimed by the said defendant, John D. Kerr;” also by the fact, that the claim of George M. Gill, was decided adversely to him by the Court of Appeals, ( 2 Md. Rep., 1 ,) before the filing of the bill in this case, thus reducing the parties claimant, to the appellant, and John Glenn, trustee of Edward M. Kerr. It is for us to determine, from the allegations in the complainant’s bill, the defendant’s answer, and from the conduct of the appellee, whether it has such a standing in a court of equity, as to entitle it to require the contestants to interplead, and settle their respective claims to the notes involved in the action of trover, and to a perpetual injunction against the appellant, as granted by the decree from which this appeal is taken. This bill was originally filed in the high court of chancery, on the 4th day of August 1849, and subsequently removed to the Superior court of Baltimore city.

And though John Glenn, Esq., was made defendant, as-well as the appellant, no subsequent process was sought by. the appellee to compel said Glenn to appear and defend his rights, and’he was permitted to disappear altogether from the cause, although a period of some four years intervened between the filing of the bill and his death. In the above interval, Mr. Glenn tacitly permitted the present contesting parties to litigate a question, in which, in his representative capacity, he was interested:—in fact he was in part the cause of.' the bill being filed, by setting up a claim to-the notes in question, leaving the appellee, as that party thought, no alternative but to seek the aid of a court of equity, to compel the respective claimants to interplead. We do not deem it inequitable to conclude, that Mr. Glenn, by this course of conduct, regarded his rights as substantially settled by the decision of