Storrs v. Engel

E.D. Virginia

Storrs v. Engel

23 F. Cas. 165, 19 Nat. Bank. Reg. 90, 3 Hughes 414, 1879 U.S. Dist. LEXIS 54

DecidedApril 16, 1879

StatusPublished

This text of 23 F. Cas. 165 (Storrs v. Engel) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Storrs v. Engel, 23 F. Cas. 165, 19 Nat. Bank. Reg. 90, 3 Hughes 414, 1879 U.S. Dist. LEXIS 54 (E.D. Va. 1879).

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Opinion

HUGHES, District Judge.

The seizure of the goods in the possession of Lisberger was, after plenary proceedings in which both Lis-berger and Rosenbaum were parties defendant, finalljr and solemnly adjudged to have been legal and proper; that is to say, the sale to Lisberger by Engel & Son was adjudged to have been fraudulent, null, and void. The seizure of these goods by the marshal under the order of this court was, therefore, a seizure of the assets in bankruptcy of Engel & Son, fraudulently held by Lisberger. Rosenbaum joined in the bond for the delivery of the goods, and for answering the decree of the court in the matter, and was party to the subsequent suit brought to test the validity of Lis-berger’s title to the goods. Lisberger, for whom Rosenbaum became surety, has been the person who has prolonged the proceedings in the district, circuit, and supreme courts, which delayed the court of bankruptcy in giving the order against his surety Rosenbaum, now asked for by the petition. The petitioning assignee has in no manner, [168]*168direct or indirect, created any delay, or been guilty of any laches.

[See Case No. 12,053:]

In the appeal from the decree of the district court to the circuit court Lisberger was appellant. So also, from the affirming decree of the circuit court to the supreme court, Lisberger was appellant. In no instance and at no stage of these proceedings has the assignee Garnett committed any laches, oi instituted any proceeding of a dilatory character. It follows, now that the invalidity and nullity of Engel & Son’s sale to Lis-berger, and the fraudulency of Lisberger’s original possession of the goods, have been finally determined, that the assignee, Gar-nett, is in equity entitled to proceed against the surety or sureties on either one of the bonds that have been given which he may elect to proceed against. He is not bound to begin with the sureties last responsible, and proceed with each set until he makes good his claim. He may begin with either surety or sureties. He has chosen to do so with the sureties in the first bond, and the court will sustain him in so doing and grant this petition; for that bond stands for the goods originally seized. Inbusch v. Farwell, 1 Black [66 U. S.] 572. The same principle applies to Lisberger’s property. The assig-nee is not bound to await the result of the proceedings to subject Lisberger's property to the satisfaction of the claim of the as-signee. The latter may proceed at once against Rosenbaum. I think this is in accordance with the equity of the case, and with the teaching of the authorities on the subject.

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HUGHES, District Judge.

The seizure of the goods in the possession of Lisberger was, after plenary proceedings in which both Lis-berger and Rosenbaum were parties defendant, finalljr and solemnly adjudged to have been legal and proper; that is to say, the sale to Lisberger by Engel & Son was adjudged to have been fraudulent, null, and void. The seizure of these goods by the marshal under the order of this court was, therefore, a seizure of the assets in bankruptcy of Engel & Son, fraudulently held by Lisberger. Rosenbaum joined in the bond for the delivery of the goods, and for answering the decree of the court in the matter, and was party to the subsequent suit brought to test the validity of Lis-berger’s title to the goods. Lisberger, for whom Rosenbaum became surety, has been the person who has prolonged the proceedings in the district, circuit, and supreme courts, which delayed the court of bankruptcy in giving the order against his surety Rosenbaum, now asked for by the petition. The petitioning assignee has in no manner, [168]*168direct or indirect, created any delay, or been guilty of any laches.

[See Case No. 12,053:]

In the appeal from the decree of the district court to the circuit court Lisberger was appellant. So also, from the affirming decree of the circuit court to the supreme court, Lisberger was appellant. In no instance and at no stage of these proceedings has the assignee Garnett committed any laches, oi instituted any proceeding of a dilatory character. It follows, now that the invalidity and nullity of Engel & Son’s sale to Lis-berger, and the fraudulency of Lisberger’s original possession of the goods, have been finally determined, that the assignee, Gar-nett, is in equity entitled to proceed against the surety or sureties on either one of the bonds that have been given which he may elect to proceed against. He is not bound to begin with the sureties last responsible, and proceed with each set until he makes good his claim. He may begin with either surety or sureties. He has chosen to do so with the sureties in the first bond, and the court will sustain him in so doing and grant this petition; for that bond stands for the goods originally seized. Inbusch v. Farwell, 1 Black [66 U. S.] 572. The same principle applies to Lisberger’s property. The assig-nee is not bound to await the result of the proceedings to subject Lisberger's property to the satisfaction of the claim of the as-signee. The latter may proceed at once against Rosenbaum. I think this is in accordance with the equity of the case, and with the teaching of the authorities on the subject.

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Bluebook (online)

23 F. Cas. 165, 19 Nat. Bank. Reg. 90, 3 Hughes 414, 1879 U.S. Dist. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/storrs-v-engel-vaed-1879.