Mr. Justice Paxson
delivered the opinion of the court, May 7th 1879.
This was an appeal by trustees under a writ of domestic attachment from the decree of the court below, dismissing the exceptions and confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees. The auditor and the court below surcharged the appellants with the sum of $1516.58, being the entire proceeds of a sheriff’s, sale of certain personal property of the defendant in said attachment, which had been levied upon and sold under a writ of fieri facias. It appeared that the writ of domestic attachment was issued against John J. Shalleross & Co., upon an affidavit charging' that John J. Shalleross had absconded, &c. This writ was received by the sheriff at 2.10 p. m., on the 23d of July 1875, and at 3 P. m., of the same day, the sheriff received the writ of fieri facias above mentioned, which was issued by Henry Gr. Thomas, upon a judgment which had been previously confessed by Shalleross. The sheriff attached and levied under both writs the stock of goods in a store at Coatesville, conducted under the firm name of John J. Shalleross & Co., and also all the personal property on a farm near Coatesville, conducted in the name of John J. Shalleross individually, but the title to which was alleged to be in the said Shalleross and one Frederick Schulemeister. A dispute arose between the trustees and the execution-creditor in regard to the legal effect of the seizure of the said property upon rheir respective writs, and, under the advice of counsel, a compromise Avas effected, and an agreement entered into betAveen the counsel of the trustees and the counsel of the execution-creditor, whereby it was agreed that the trustees should take the store property, and the execution-creditor should take the farm and [520]*520the personal property belonging thereto. The auditor distinctly finds the fact that in making this arrangement the trustees acted under the advice of counsel, “ in the most perfect good faith, and did what they believed was not only for the best interests of the estate, but also what was in accordance with law.” Yet he has surcharged them with the entire proceeds of the sheriff’s sale, not even allowing for the necessary expenses thereof, which ruling, upon exceptions filed by the trustees, was confirmed by the court below.
No opinion was filed by the learned judge, and we are therefore obliged to look to the report of the auditor alone for the reasons upon which this ruling is based. Briefly stated they are that trustees, under a domestic attachment,' are purely ministerial officers; that they have no discretionary powers ; no right to make compromises and settle controversies. The learned auditor says : “ They had no more authority to compromise a dispute as to the right of property, because they thought it would be for the benefit of creditors, than would the sheriff have had whilst the goods were in his custody, if he had been of the same opinion; or as to goods taken in execution, if he thought it for the benefit of the execution. The auditor is therefore of the opinion that the trustees are chargeable with the portion of the goods seized by the sheriff which they gave up to him to be sold under Thomas’s execution. The sales of the sheriff amounted to $1516.58.”
We think the auditor was clearly right in holding that the trustees made a mistake in relinquishing their claim to the property sold under the fieri facias. It is true there was no duty upon them to give a bond under the sheriff’s interpleader. Nor do I see how the court could have compelled them to do so. But they might and ought to have applied to the court for relief. The attachment being prior in point of time, the property was in gremio legis, and in a proper case the court would make such order as might be necessary for the protection of all the interests involved: Robinson v. Atlantic and Great Western Railway Co., 16 P. F. Smith 160. But the conclusion of the learned auditor that the trustees are necessarily liable to be surcharged with the proceeds of the sheriff’s sale is not so satisfactory. His argument that trustees under a domestic attachment are ministerial officers without discretion, like a sheriff, rests in a great measure upon the case of McCready v. The Guardians of the Poor, 9 S. & R. 94. That case, however, is not authority for such a doctrine. It is true it was said by Justice Duncan in delivering the opinion of the court, referring to trustees under a domestic attachment: “ These men are not judicial officers, but are ministeral officers of justice.” The point decided in that case was, that in an action of trespass, or trover, by two or three trustees under such attachment, the court after verdict will presume that all three were appointed and qualified, and that one is since dead. As this case [521]*521■wholly fails to sustain the position assumed, and no other has been cited which does, we must look to the Domestic Attachment Act of 13th June 1836, Pamph. L. 616, Purdon 518, as our guide. It requires but a cursory examination of said act to see that trustees appointed under it are clothed with extraordinary powers. To enumerate them all would be tedious and unprofitable. It is sufficient for present purposes to say, that from and after their appointment such trustees shall be deemed to be vested with all the estate of the debtor at the time of issuing the attachment, and are' required to take into their possession all of said estate, and all books, papers and vouchers relating to the same; they may sue for and recover in their own names, all the said estate, and all debts and things in action belonging to the debtor; they may summon before them and examine on oath or affirmation, all persons residing within the county supposed to be indebted to the defendant, and such other persons residing as aforesaid, as they shall think fit, touching the real or personal estate of the defendant; and in case any person so summoned shall refuse to attend, or to be sworn, or to make answer, the trustees may commit such person to the prison of the county, there to be confined until he shall submit to be examined; they may issue their warrants under their hands and seals, to break open in the day time, houses, chambers, shops, stores or warehouses of the defendant, or any doors therein, and any truuks or chests of the defendant, in which his goods and effects, books of account or papers relating to his estate, shall be, or shall be reputed to be, and to seize the same for the benefit of creditors; they may redeem property that has been pawned or pledged; they may sell the. personal estate of the debtor without any application to the court, at any time after the ’ term next succeeding that to which the writ is returnable, and the real estate at any time after the third term, and to grant, assign, or sell the debts due or to become due the defendant. An argument is not needed to show that trustees clothed Ayith such powers as I have enumerated are something more than ministerial officers. There is no possible analogy betAveen their duties and those of a sheriff. The oath Avhich the trustees take implies discretion. They are “ to execute the trust reposed in them, according to the best of their skill and understanding,” &c. No other class of trustees have such delicate, hazardous, and responsible duties to perform. To say that a trustee who may send a man to prison for his refusal to ansAYer, is a mere ministerial officer, is a proposition, the mere statement of A\diich carries Avith it its own swift refutation.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Paxson
delivered the opinion of the court, May 7th 1879.
This was an appeal by trustees under a writ of domestic attachment from the decree of the court below, dismissing the exceptions and confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees. The auditor and the court below surcharged the appellants with the sum of $1516.58, being the entire proceeds of a sheriff’s, sale of certain personal property of the defendant in said attachment, which had been levied upon and sold under a writ of fieri facias. It appeared that the writ of domestic attachment was issued against John J. Shalleross & Co., upon an affidavit charging' that John J. Shalleross had absconded, &c. This writ was received by the sheriff at 2.10 p. m., on the 23d of July 1875, and at 3 P. m., of the same day, the sheriff received the writ of fieri facias above mentioned, which was issued by Henry Gr. Thomas, upon a judgment which had been previously confessed by Shalleross. The sheriff attached and levied under both writs the stock of goods in a store at Coatesville, conducted under the firm name of John J. Shalleross & Co., and also all the personal property on a farm near Coatesville, conducted in the name of John J. Shalleross individually, but the title to which was alleged to be in the said Shalleross and one Frederick Schulemeister. A dispute arose between the trustees and the execution-creditor in regard to the legal effect of the seizure of the said property upon rheir respective writs, and, under the advice of counsel, a compromise Avas effected, and an agreement entered into betAveen the counsel of the trustees and the counsel of the execution-creditor, whereby it was agreed that the trustees should take the store property, and the execution-creditor should take the farm and [520]*520the personal property belonging thereto. The auditor distinctly finds the fact that in making this arrangement the trustees acted under the advice of counsel, “ in the most perfect good faith, and did what they believed was not only for the best interests of the estate, but also what was in accordance with law.” Yet he has surcharged them with the entire proceeds of the sheriff’s sale, not even allowing for the necessary expenses thereof, which ruling, upon exceptions filed by the trustees, was confirmed by the court below.
No opinion was filed by the learned judge, and we are therefore obliged to look to the report of the auditor alone for the reasons upon which this ruling is based. Briefly stated they are that trustees, under a domestic attachment,' are purely ministerial officers; that they have no discretionary powers ; no right to make compromises and settle controversies. The learned auditor says : “ They had no more authority to compromise a dispute as to the right of property, because they thought it would be for the benefit of creditors, than would the sheriff have had whilst the goods were in his custody, if he had been of the same opinion; or as to goods taken in execution, if he thought it for the benefit of the execution. The auditor is therefore of the opinion that the trustees are chargeable with the portion of the goods seized by the sheriff which they gave up to him to be sold under Thomas’s execution. The sales of the sheriff amounted to $1516.58.”
We think the auditor was clearly right in holding that the trustees made a mistake in relinquishing their claim to the property sold under the fieri facias. It is true there was no duty upon them to give a bond under the sheriff’s interpleader. Nor do I see how the court could have compelled them to do so. But they might and ought to have applied to the court for relief. The attachment being prior in point of time, the property was in gremio legis, and in a proper case the court would make such order as might be necessary for the protection of all the interests involved: Robinson v. Atlantic and Great Western Railway Co., 16 P. F. Smith 160. But the conclusion of the learned auditor that the trustees are necessarily liable to be surcharged with the proceeds of the sheriff’s sale is not so satisfactory. His argument that trustees under a domestic attachment are ministerial officers without discretion, like a sheriff, rests in a great measure upon the case of McCready v. The Guardians of the Poor, 9 S. & R. 94. That case, however, is not authority for such a doctrine. It is true it was said by Justice Duncan in delivering the opinion of the court, referring to trustees under a domestic attachment: “ These men are not judicial officers, but are ministeral officers of justice.” The point decided in that case was, that in an action of trespass, or trover, by two or three trustees under such attachment, the court after verdict will presume that all three were appointed and qualified, and that one is since dead. As this case [521]*521■wholly fails to sustain the position assumed, and no other has been cited which does, we must look to the Domestic Attachment Act of 13th June 1836, Pamph. L. 616, Purdon 518, as our guide. It requires but a cursory examination of said act to see that trustees appointed under it are clothed with extraordinary powers. To enumerate them all would be tedious and unprofitable. It is sufficient for present purposes to say, that from and after their appointment such trustees shall be deemed to be vested with all the estate of the debtor at the time of issuing the attachment, and are' required to take into their possession all of said estate, and all books, papers and vouchers relating to the same; they may sue for and recover in their own names, all the said estate, and all debts and things in action belonging to the debtor; they may summon before them and examine on oath or affirmation, all persons residing within the county supposed to be indebted to the defendant, and such other persons residing as aforesaid, as they shall think fit, touching the real or personal estate of the defendant; and in case any person so summoned shall refuse to attend, or to be sworn, or to make answer, the trustees may commit such person to the prison of the county, there to be confined until he shall submit to be examined; they may issue their warrants under their hands and seals, to break open in the day time, houses, chambers, shops, stores or warehouses of the defendant, or any doors therein, and any truuks or chests of the defendant, in which his goods and effects, books of account or papers relating to his estate, shall be, or shall be reputed to be, and to seize the same for the benefit of creditors; they may redeem property that has been pawned or pledged; they may sell the. personal estate of the debtor without any application to the court, at any time after the ’ term next succeeding that to which the writ is returnable, and the real estate at any time after the third term, and to grant, assign, or sell the debts due or to become due the defendant. An argument is not needed to show that trustees clothed Ayith such powers as I have enumerated are something more than ministerial officers. There is no possible analogy betAveen their duties and those of a sheriff. The oath Avhich the trustees take implies discretion. They are “ to execute the trust reposed in them, according to the best of their skill and understanding,” &c. No other class of trustees have such delicate, hazardous, and responsible duties to perform. To say that a trustee who may send a man to prison for his refusal to ansAYer, is a mere ministerial officer, is a proposition, the mere statement of A\diich carries Avith it its own swift refutation.
There is a line of authorities AYhich hold that trustees who have acted in good faith, and under the advice of counsel, are not responsible for a mere error of judgment, or a mistake of law. It is sufficient to refer to King v. Morrison, 1 P. & W. 188 ; During, King and Miller’s Appeals, 1 Harris 224; Neff’s Appeal, 7 P. [522]*522F. Smith 91, and the Savings Fund’s Appeal, 26 Id. 203. Trustees must of necessity-seek the advice of counsel in the performance of their duties. Not to do so would, in many instances, he gross negligence. It would be a harsh rule to require trustees to seek legal advice, and then hold them responsible for an error of law committed by their counsel. In the language of Chief Justice Gibson (1 Harris 235), it “ would throw the execution of trusts into the hands of knaves or fools.”
We are of opinion that the case in hand comes within the principle laid down in the authorities referred to, and that it was error to surcharge the appellants with the proceeds of the sheriff’s sale. It is easy now to see how the mistake in question might have been avoided. It might not have been so easy at the time it occurred. It certainly was not so to the trustees. Acting in good faith and in the strict line of their duty they sought the advice of respectable and experienced counsel. It would be harsh as well as unjust to hold them responsible for his error of judgment, and the law does not require us to do so.
The decree is reversed, at the costs of the appellees, and distribution ordered in accordance with the principles of this opinion.