Gardner's Appeal

7 Watts & Serg. 295

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1844
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy, J.

The court below appear to have taken up the idea that it was not in the power of James Welch, after he became bail for Andrew Welch, in the judgment rendered against the latter in favour of E. A. Hoskins, to dispose of or assign any claim which he then had or should thereafter acquire, to money for which a judgment existed or had been obtained in that court, at least, where he had become bail for the payment of the judgment in favour of E. A. Hoskins against Andrew Welch; and accordingly decreed in favour of E. A. Hoskins, that he should receive towards payment of his judgment against Andrew Welch, the moneys applicable to the elder judgment against the same, which James Welch had acquired a right to by assignment from Roset & Bicking, the plaintiffs on record, some three months, nearly, after that he had become bail for the payment of the judgment in favour of E. A. Hoskins, and passed away bona fide, for aught that appears to the contrary, for a valuable consideration to B. F. Gardner, the appellant, while a suit was pending against him by Hoskins on his recognizance as bail. The assignment of the judgment by Roset & Bicking to James Welch, had no connection with or relation whatever to his being or having become bail for the payment of the judgment in favour of Hoskins. Had he obtained it as a security to indemnify himself against the payment of the judgment in favour of Hoskins, then Hoskins would have been entitled to the benefit of it, upon the. established principle that, in equity, the creditor is entitléd to the benefit of all the securities which the surety has gotten from the principal debtor, for the purpose of indemnifying himself against the payment of the debt. Maure v. Harrison, 1 Eq. Ca. Ab. 93. Upon this ground, and by the application of this principle, the cases of Erb's Appeal, 2 Penn. Rep. 296, and Himes v. Barnitz, were decided, as, 1 think, I have shown, in the Appeal of William Moore and others, in the matter of the distribution of the moneys raised from a judicial sale of John Moore’s real estate, decided at the present term. The court below' seem to have misapprehended the real ground of the decision in those cases. It cannot be pretended, for a moment, that Hoskins had, at any time, a lien or claim of any kind, either legal or equitable, to the judgment assigned by James Welch to B. F. Gardner, or to the moneys that might be collected or raised under it. It is impossible to conceive any ground upon which Hoskins could claim to have the benefit of it, at the time James Welch assigned it to B. F. Gardner. He certainly had no more ground or reason for claiming the benefit of it, than he had for claiming any other debt that might have been owing to James Welch at that time, which had no connection or concern whatever with the latter’s having become bail to pay Hoskins the debt owing him by Andrew Welch. His claim against James Welch, as bail, was purely personal, and could not be extended to the property or effects of the latter before the former became entitled to have execution for it. Suppose James Welch had been insolvent, at the time he assigned the judgment in question to Gardner, and indebted to divers persons in various sums of money; and, instead of assigning it to Gardner, he had made an assignment of all his property and effects, including it, to trustees for the benefit of all his creditors; can it be imagined that his right to the judgment would not have passed the same as his right to every other part of the subject-matter of the assignment ? Or can it be said that Hoskins would have had a right, notwithstanding, to claim the exclusive benefit of it 1 I confess that I am at a loss to conceive any ground upon which he could have laid the least shadow of claim to it, except as a creditor of James Welch under the general assignment máde by him. It is really too plain to admit of the least doubt, that he could not. If such general assignment then would have entitled, the creditors of James Welch generally to the benefit of it, no good reason can be assigned why his particular assignment of it to Gardner should not be completely available, and entitle Gardner to the full amount of the same. The decree of the court below is therefore reversed, and the money in court there due upon the judgment assigned to Gardner, ordered and decreed by this court to be paid to him; and the costs to be paid by E. A. Hoskins, the appellee.

Decree reversed.