McLellan's Appeal

26 Pa. 463

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1856
• Status: Published

Opinion

The opinion of the court was delivered by

Lewis, C. J.

It does not appear from the record that the appellant presented and supported his claim before the auditor. The appointment of an auditor may be rendered entirely nugatory if the parties, after paying no attention to his proceedings, are permitted to complain in court of his decision. Our jurisdiction is appellate, and, as the question raised here was not passed upon by the auditor, there is nothing for review in regard to it.

If the question were properly before us, it would be easy to demonstrate that a voluntary assignee for the benefit of creditors is a trustee for the creditors in the first place, and in the next place for the assignor, as to any surplus remaining after payment of debts. This is the order of priority established by law. The assignor is entitled to nothing until the debts and the expenses of the trust be satisfied. An assignee may make a contract with counsel for the recovery of assets assigned, but he has no right to make any arrangement by which the assignor is to be preferred to his creditors in the distribution. We do not think that the contract in question here was intended to produce such a result; but if so, it must fail for want of authority in the assignee. The distribution decreed below is correct.

Decree affirmed.