Loney v. Penniman

Stewart, J., delivered the opinion of the Court. The bill was filed by Loney and others to compel Penniman the defendant, to account for certain debts due the firm of Loney & Co., which it was alleged he had collected. An interlocutory decree nisi was passed that Penniman should account, and that the case be referred to the auditor. Penniman filed reasons against the decree, and the defendants were allowed to answer.

The Court at the final hearing, decreed that the complainants were not entitled to the debts and assets claimed by the bill, and dismissed the same, and the complainants have brought this appeal. The assets of the firm of Loney & Co., consisted, amongst other things, of debts due it by parties residing beyond the limits of the State, which the bill claimed had not been sold by the receiver appointed in the case of Thomas vs. Loney and others, to Penniman; and for the collection of any part of which by Penniman it sought the account. Penniman on the contrary, insisted that under his purchase from the receiver, he was entitled to said debts. The Court by its decree affirmed the right of Penniman to these debts, and whether there was error in- this is the substantial question for review.

Sundry matters of Chancery practice, as to the regularity of the preliminary proceedings of the Court, were discussed by appellants’ counsel, but they are immaterial, if according to the final decree, the bill presented no case entitling the complainants to relief. In the case of Thomas vs. Loney and others, the Court, by its order of 26th May, 18⁷², appointed Cole receiver, with power and authority, to take charge and possession of the ¹³² goods, wares and merchandise, books, papers and effects of, or belonging to the firm of Loney & Co., and to collect the debts due it, and they were required to deliver them to the receiver accordingly. Upon the petition of the receiver setting forth the proposition of Penniman, to purchase the entire assets of the firm for the sum of sixty thousand dollars, and his prayer for an order from the Court directing him to sell all the assets and property, book debts, dioses in action and effects of the firm, within the jurisdiction of the Court, for the sum offered by Penniman; the Court by its order of 21st February, 1812, did authorize the sale to be made accordingly, and the receiver, upon the payment of the money, to convey to Penniman the said property. The debts due the firm at home and abroad were dioses in action, belonging to the firm, and were undoubtedly embraced or intended to be, both by Cole the receiver, and Penniman the purchaser, in the sale.

The Court having the care of the property involved— the receiver being its creature or officer, Williamson vs. Wilson, 1 Bland, 436 ; Booth vs. Clark, 17 Howard, 322 , and only having such powers as conferred upon him by the order for his appointment and the practice of the Court. Verplanck vs. Mercantile Ins. Co., 2 Paige C. R., 438, and always acting’ under its express or implied authority, and in this instance by its special order; if Penniman is not entitled to the debts due the firm from its foreign debtors, he ought to have an adequate deduction therefor, from the amount of his purchase. But we think, all the right and