Thomson v. Albert

Eccleston, J., delivered the-opinion of this court. By a report filed on the 28th of November 1854, the special auditor, having, shown how he ascertained the balance of estate for general distribution amongst all the creditors of Samuel Jones, Jr., proceeds with his report as follows: "He has then stated account J, between the estate of Samuel Jones, Jr., and the trustees, in which the balance, shown in hand by account H, is appropriated to the payment of dividends on all claims allowed. He has assumed, for the purposes of this account, that -claims No. 29, No. 77, No. 78 and No. 115, are not entitled to the preferences insisted on by the exceptions of the claimants, filed on the eighth of March 1852. And lastly, at the instance of the solicitor for those claimants, he has stated an account I£, between the estate and the trustees, in which he has allowed the full amount of ■claims No. 29, 77, and 78, reduced by the dividend allowed thereon by account G, and the full amount of claim No. 115, reduced by the dividend allowed thereon by account H, and the balance has been distributed amongst the remaining ■creditors.” On the 14th of December 1854, the following exception was filed. "Laurence Thomson and Henry G. Jacobsen, partners, as Laurence Thomson &- Co., Francis Forman,-John Land-street and Son, Charles R. Pearce, surviving partner of Bill-head & Pearce (said Birkhead having departed this life) except to the special auditor’s accounts reported to this •court, of the 28th of November 1854, save only the account K, so far as those accounts deny to your exceptants, as 'creditors of Samuel Jones, Jr., the preference granted to them for their respective claims (as described in the deed) under the deed of trust from said Jones to Winn and Ross, and -they insist that ■said account K should be adopted, and finally confirmed by — 281 — this court in behalf of the several claims of these exceptants respectively as creditors aforesaid, as acceding to them respectively the preferences aforesaid.” The day after, tile court ordered, “'That (except as to the preferences allowed to claims Nos. 29, 77, 78 and 115, which preferences are hereby reserved for further consideration and order) the within account he and is hereby ratified and confirmed, and the trustees are directed to apply the fund accordingly, with a due proportion of interest received.” On the 25th of November 1855, J. Hopkins, Bro. & Co., and Hopkins, Bro. & Co., excepted to the auditor’s account X, because of the preferences allowed therein to the four claims above mentioned. Similar exceptions to the same account, were filed by other creditors, on the 19ih of October 1857. After argument by counsel in relation to the auditor’s report of the 28i,h of November 1854, the exceptions thereto, and the oilier proceedings, the court passed an order on the 7th of November 1857, in and by which “It is ordered, that the auditor’s account J, filed as part of said report, be and the same is hereby ratified and confirmed, and the proceeds be distributed accordingly, and that all exceptions in the cause, and all other accounts of the auditor, inconsistent with this order, be and the same are hereby overruled.” From this order the present appeal has been taken by the parties, whose claims are Nos. 29, 77, 78 and 115. In the exception filed by these parties, on the 14th of December 1834, they base their right, to insist upon the payment of their claims in full, upon the deed of trust. Their objections to the accounts reported by the auditor are, “So far as those accounts deny to your exceptants, as creditors of Samuel Jones, Jr., the preference granted to them for their respective claims (as described in the deed) under the deed of trust from said Jones to Winn and Ross.” And they insist that account, K, “'as acceding to them, respectively, the preferences aforesaid,” should be ratified by the court. The claim thus based upon the deed is the first point or question considered by the judge below. He mentions the — 282 — fact that this deed had been declared void by the highest judicial tribunal of the State, upon the appeal from the order of the chancellor, continuing the injunction which he had granted; which order was affirmed by the Court of Appeals. He then refers to the proceedings subsequently occurring in the cause, and concludes that, as the Court of Appeals had declared the deed void, that should be regarded as the law of this case, and these claimants can set tip no right under the deed. To this view of the subject we yield our assent. The deed being void, upon the ground stated, it is not necessary to decide whether it should be considered void under the provisions of our insolvent laws. And the proceeds of the estate of Samuel Jones, Jr., are therefore to be distributed amongst his creditors as being in the hands of his trustees in insolvency, without any regard to the deed of trust declared to be void. Admitting the deed to be void, the appellants’ counsel insists that independently of the deed, thej? are entitled to the preference claimed by them; because their claims are for money lent without security, for short periods and without interest; which claims, under and by virtue of a general usage among merchants in Baltimore, should be reimbursed or provided for, in preference and priority to other debts, where the debtor may prove unable to pay his'debts in full. It may be true that such usage has been acquiesced in, to the extent of sanctioning preferences of this kind, when conventional arrangements or settlements have been made, between a merchant, in embarrassed circumstances, and his creditors generally. But we have not been convinced that there is a general usage, which, per se, creates such a lien or preference upon the estate of an insolvent debtor, as should be enforced by the court, against the consent of his other creditors; and in opposition to the principles of the insolvent system. Not being satisfied that there is a gfeneval usage of -this description, we cannot sustain the appellants’ claims, upon the ground of usage. The counsel for the appellants has contended that, if — 283 — their preferences can be impaired or reduced at all, they can only be impaired or reduced, so far as concerns and benefits the interests of those creditors, who have filed exceptions to account K, and to the extent, only, of the proportion which the total of the claims of such exceptants bears to the aggregate of all the claims embraced in the accounts. He insists that the exceptions, if sustained, cannot operate beneficially for those creditors who filed no exceptions, in support of this position, reference is made to (he case of McCormick vs. Gibson, et al., 3 G. & 12. It was there held that the plea of limitations, by one of several defendants, would not enure to the benefit of other co-defendants, who had not put in such a plea. But the ruling in that case is not applicable to tile question before us. In relation to appeals from a court of equity, the 2nd section of the Act of 1825, ch. 117, provides, in reference to accounts stated and reported to such court, that “the appellant shall not be permitted to urge or insist upon any exception to any account so reported, unless it shall appear by the record that such exception was taken or made in the court from whose decree such appeal shall be made.” And it is further provided that, “the Court of Appeals shall not reverse any decree on any exception which shall not appear to be taken or made as aforesaid, in the court from whose decree the appeal may be made.” The design of the Act was, that the record should present to the appellate tribunal, for revision, the same question on which the court below had decided. It appears, from the present record, that account J was stated and reported by the auditor as the proper one to be reported by him, according to Ms judgment. In doing which he assumed that claims Nos. 29, 77, 78 and 115 were not entitled to the preferences insisted on by the claimants; who are the present appellants. The report of the auditor also shows, that, at the instance of the solicitor for those claimants, he stated account K, in which the preferences claimed were allowed. The appellants excepted to account J, because in it their — 284 — preferences were not allowed. The court ratified and confirmed that account; and overruled “all exceptions in the cause, and all other accounts of the auditor,” inconsistent with the order of ratification. From this the appeal has been taken. (Decided February 24th, 1860.) The appellants’ exception to account J, distinctly presented to the court below, the question, whether they were entitled to the preferences claimed by them ? By ratifying that account, in opposition to the exception, the court certainly decided the question adversely to the claimants. These claimants having appealed from the decision of this question, the onus of showing that the court decided erroneously, is upon them; and, in the state of case before us, the Act of 1825 only authorises them to urge or insist upon their exception. Whether there was error or not in the order of ratification, does not depend on whether exceptions to account K were filed by all, by some only, or by none of Jones’ creditors. Exceptions to that account could not more distinctly have presented the question, whether the appellants were entitled to the preferences insisted upon, than it was presented by account J, and the appellants’ exception thereto. If no exceptions had been filed by the appellees, or by any creditor of Jones, this court could not reverse the decision below, unless convinced that the court had erroneously decided the question presented by the appellants’ exception to account J. And not having discovered any such error, the order appealed from will be affirmed. It is unnecessary to decide whether, on this appeal, the chancellor’s order of the 5th of March 1852, can now be revised, because, if it is open for revision, the same reasoning which has brought us to the conclusion that the order of the 7th of November 1857, ought to be affirmed, would prevent us from reversing the other. Order affirmed, with, costs. A motion was made by the appellants for a rehearing, and, as one of the grounds not brought to the consideration of the — 285 — court, and upon which they founded this motion, they respectfully submit that under the circumstances of this case, and those under which the court’s revisory and overruling opinion was pronounced io Kettlewell vs. Stewart, as to deeds of trust for creditors, such as the deed in question in this cause, that opinion superseded the. opinion on the deed here, that but a few months before ha,d been rendered, and made the decision in Kelllewell vs. Stewart, the law of this case; and that the decree to account, passed the 17th of January 1849, which declared the deed of trust to be a valid rule for the account, was revived, or left to operate, by the opinion in Kettlewell vs. Stewart having supervened, and become the law of Maryland long before any accounting took place in whicli there was any application of the deed of trust to the rights of any of the creditors. (Decided March 16th, 1860.) The Court, per Barlol, J. — The court has considered this application, with every disposition to gratify the appellants; but the rule “that the decision of the law of a case must govern the court in all further proceedings in the same cause,’ ’ has been so firmly established by the decision of the former and present Court of Appeals, that we should not feel authorized to depart from the opinion and decree heretofore filed on this appeal. Motion overruled.