Teackle v. Gibson

Mason, J., delivered the opinion of this court. Many grave and important questions have been discussed with much ability by counsel in the progress of their argument, which we think the exigencies of this • case do not require us to determine upon the present appeal. Whatever force there would have been in the suggestion, if made at the proper time, that a court of equity had no original jurisdiction over this case, it is now too late for us to entertain such an objection, inasmuch as none was taken, as required by the act of 1841, chap: 163, in the court below. By that act it is provided, that the defendant shall not, in the Court of Appeals, rely upon any objection to the jurisdiction of the court below, unless it appear by the record, that such objection was raised below.

The appellant as permanent trustee in insolvency of Carey, Wethered and O’Donnell, on the 8th of December 1850, filed his bill in equity, making substantially the following case: that the firm above named became embarrassed in 1839; and being absolutely insolvent in the following year, with full knowledge of their condition, transferred large sums of money and other property, constituting nearly the whole assets of the firm, to several preferred creditors. That Gibson, the defendant, received of such assets more than $18,000, which sum exceeded his claim against the firm, and his liabilities for them; that at the time of the said transfer the film was utterly insolvent, and Gibson knew of such condition; that the several members of the firm applied for the benefit of the insolvent laws in 1841, and that the appellant became permanent trustee for all the parties, on the 23rd of October 1846; that Gibson ⁸⁵ has never accounted for any of the assets which came into his hands, &e. Subsequently, by an amended bill, it was further alleged, that after the assignment to Gibson the insolvents made a deed to Hinldey and Woodward, dated September 24th, 1840, embracing the balance of their assets and property, and under which deed the grantees took possession of the books and papers of the firm. Upon a bill filed in equity by the permanent trustee to vacate this deed, a decree was passed 12th of July 1848, vacating the deed and transferring the property, books and papers of the insolvent, embraced by said deed, to the trustee.

Prom these books he discovered, for the first time, the transfers above mentioned to the present defendant, and that he had no other means of ascertaining the fact. The prayers of the bill were for a discovery, an account, and for a delivery of the assets in the defendant’s possession to the complainant, and for general relief, &c. The defendant pleaded two pleas of limitation, namely: 1. That Hinkleywas appointed provisional trustee of Carey on the 12th of January 1841; and of Wethered on the 13th of August 1841; and Horsey became provisional trustee of O’Donnell on the 13th of July 1841; and that the cause of action accrued to Hinkley, as provisional trustee of Carey, Wethered & Co.; and to Horsey, as provisional trustee of O’Donnell, more than three years before bill filed, or before serving or suing out process, and also more than three years before the appointment of complainant as permanent trustee; nor did the defendant promise within three years before bill filed, or process served or issued, nor either when or since the provisional trustees were in office, to account or make satisfaction for any matters in the bill. 2.

That the cause of action accrued to the complainant more than three years before bill filed, or before serving or suing out process; and defendant did not promise complainant to account for, or pay any thing for any matter charged in the bill. The conrt. overruled the first and sustained the second plea, and dismissed the bill. Both parties it seems appealed from this decision. ⁸⁶ Without inquiring into the regularity of the appeal of the defendant, because of the circumstance that the decree was in his favor, the court is nevertheless of opinion, that all the advantages which he seeks under his appeal can be attained under the complainant’s appeal. The