251
U;NlTEP STATES 11. DEWEX
et al.
(Circut"tCourt, S.D. New York. ABATEMENT AND REVIVAL.
July 15. 1889.)
A cause of action against an assig-qee in bltnkruptcy for wrongfully payiugthe asaets in his hands to other creditors of the bankrupt than piaintiff. does not abate on the assignee's d"ath.
At Law. On demurrer to complaint. .stephen A. Walker, U. S. Atty. Wing, &- Putnam, (,Joseph H. Choate, of counsel,) for defendants. 'WALLACE, J. The complaint alleges that the defendants' testator, Barnes, was the assignee in bankruptcy of Vetterlein and another, who were on the 7th of February, 1871, duly adjudicated bankrupts; that the bankrupts were jointly and severally indebted to the plaintiff in the sum of that their estate was insufficient to pay all their debts; that said Barnes had notice of tae demand of the plaintiff at a time when he had in his hands of the estate of the bankrupts the sum of $32,000; that thereafter he paid that sum to the creditors of the bankrupts other than the plaintiff; and that the remaining assets of the bankrupts are insufficient to pay the debt of the plaintiff by more than $32,000. The complaint then alleges the death of Barnes, and the appointment and qualification of the defendants as his executor. The demurrer to the complaint presents the single question whether the cause of action against the deceased assignee of the bankrupts survives against his executors. The action is in assumpsit for money had and received, and is founded upon a breach of duty of the assignee, and therefore does not abate. At common law, even when the cause of action originates in tort, and trover or case would lie, but the facts permit an action of assumpsit, if the plaintiff elects to bring assumpsit, the action does not abate. Hambly v. Trott, 1 Cowp. 373; Wheatley v. Lane, 1 Saund. 217, note; Sollers v. Laurrence, Willes, 421. The property of the bankrupts that came to the hands of the assignee was by force of the statute (section 3466, Rev. 81. U. S.) a trust fund in his hands for the payment of the debt of the plaintiff, and he was bound, as a trustee for the plaintiff, to pay its debt first {Jut of the proceeds of the property. The cause of action is not in the nature of a penalty, but is one which may be enforced as a trust in equity or at law, by an action for money had and received. Beaston v. Bank, 12 Pet. 102; Lewis v. U. S., 92 U. S. 618; Bayne v. U. S., 93 U. S. ,£)42; Field v. U. S., 9 Pet. 182. The demurrer is overruled, with leave .to the defendants to answer within 20 days upon payment of costs.
252
FEDERAL
vol. 39.
SEELEY
v.
MISSOURI,
K. &T. Ry: CO. York. July 13,1889.)
(Oircuit Oourt, S. 1.
n. New
ATTACHMENT-WHEN LIEs-RAILROAD COMPANIES-BONDS AND MORTGAGES.
Code Civil Proc. N. Y. 6&'>. authorizes an attltchment to be granted "in actions to recover a sum of money only." whether" for breach of contract, express or implied, other than a contract of marriage," or for the wrongful conversion or other injury to personal property. Held, that an attachment may be issued ill an action against a railroad company to recover upon coupons and scrip certi1icates representing interest payable semi-annually out of the company's net or surplus income. TO DISSOLVE-PENDENCY OF ANOTHER ACTION.
2.
The fact that the plaintiff had. prior to the institution of the attachment proceedings in the state court. instituted a suit in equity in the federal court. as a holder of the same coupons and scrip certificates. to compel an accounting by the company of its net income, and to recover the unpaid interest. whIch suit had proceeded to an interlocutory decree and an accounting. is not Eufficient to justify the granting of a motion to dissolve the attachment. Whether the pendency of the former suit is a defense is a question to be determined on the trial. It seems that a prior suit pending in equity does not afford a good plea in abatement to a suit at law between the same parties to recover the same demand.
At Law. On motion to dissolve attachments. Davenport, Smith &- PerkinB, for plaintiff. E. Ellen AnderBon and Simon Sterne, for defendant. WALLACE, J. This is a motion by the defendant to vacate two attachments in favor of the plaintiff, which have been levied upon its property, and which were granted, one in the state court in which this action was originally brought, and one in this court after the action had been removed here. The action is brought to recover upon certain coupons and scrip certificates owned by the plaintiff, representing interest payable semi-annually out of the Ilet or surplus income of the defendant. At the time the action was brought there was pending in this court, in equity, a suit prosecuted by the plaintiff and others, as holders of these and other coupons and scrip certificates, to com pel an accounting by the defendant of its income, and to recover the amount due of unpaid interest. The cause had proceeded to an interlocutory decree, and an accounting was pending before one of the masters of this court, and in that proceeding the plaintiff had proven before the master the coupons and certificates upon which the present action is brought. Soon after the present action was brought, and before pleading, the defendant removed the action to this court, and thereupon, in due time, interposed as a defense a plea of the pendency of the suit in equity between the same parties. Subsequently, and on the 29th day of December, 1888, the equity suit was prosecuted to a final decree, which determined the amount owing by the defendant to the several holders of coupons and scrip certificates up to the 1st day of October, 1886, and adjudged a recovery therefor. Among other things, this decree contained a provision authorizing the plaintiff to apply to the court for a further discovery and ac-