Dwight v. Bank of Michigan & Trustee

Hubbard, J. We are of opinion that the funds placed in the hands of John Ward & Co. to the credit of the Michigan Bank, and afterwards, by order of the bank, transferred to the credit of William Dwight, for a special purpose, are not such goods, effects or credits of the bank, in the hands of the said Dwight, as are liable to be attached and held to respond the final judgment in this suit. The law is very clear, that a contingent liability is not the subject of foreign attachment. To render the party summoned accountable under this process, it must appear that he has goods or effects in his hands, belonging to the principal debtor, or that he is indebted to him in some amount capable of being ascertained, either due and not paid, or due and not yet payable. It does not reach the case of a person who may or may not be chargeable upon the happening of some future event; as an attorney who is employed to collect a debt, or a commission merchant, who has sold goods for his principal on commission, and whose liability, respectively, to account, depends on future collections. This was settled by the case of Willard v. Sheafe, 4 Mass. 235, and has been confirmed 3y successive decisions. In the case at bar, Ward & Co. were indebted to Dwight for account of the Michigan Bank, in moneys payable from time to time, as the same should be drawn for. But until Dwight received or drew for the same, or changed the place of deposit of the moneys standing to his credit, so as to make himself personally liable, he was not the debtor of the bank, nor a guarantor of the solvency of Ward & Co. His responsibility was that of an agent, and not of a debtor. [62] Again; these funds were set apart by the bank, for the special purpose of paying certain specific demands, and were placed under the control of Dwight, to direct their application. He agreed to have them transferred to his credit, and to apply them as directed by the bank. The creditors had notice of this appropriation, and agreed to it; and, for the purpose of paying them pro rata, drafts were made, from time to time, upon Ward <fc Co. as they were in funds. This we think a good assignment of the fund, by the bank, for the benefit of such creditors. It was such an appropriation that the bank could not change it without the consent of the creditors ; and Dwight was bound so to order its application. Clarke v. Adair, cited in 4 T. R. 343. Cutts v. Perkins, 12 Mass. 206. Ward v. Lewis, 4 Pick. 518. Bourne v. Cabot, 3 Met. 305. As to the assignment by the bank, for the benefit of its creditors generally, subsequently to the order in favor of Dwight, but prior to the institution of the present process, the views before taken render it unnecessary to consider how far it was binding upon creditors living in this Commonwealth, cr whether the present plaintiff might not be equitably estopped from contesting its validity. Trustee discharged.