CHITTENDEN V. BREWSTER, 69 U. S. 191 (1864)

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U.S. Supreme Court

Chittenden v. Brewster, 69 U.S. 2 Wall. 191 191 (1864)

Chittenden v. Brewster

69 U.S. (2 Wall.) 191


1. It is the duty of assignees for the benefit of creditors who have once accepted the trust not only to appear but, so far as the nature of the transaction and the facts and circumstances of the case will admit or warrant, to defend the suit. And if a federal court is already seized of the question of the validity of the trust, they should set up such pending proceeding against any attempt by parties in a state court to bring a decision of the case within its cognizance. If, when the federal court has acquired previous jurisdiction, they submit with a mere appearance, and without any opposition to the jurisdiction of the state court, and pass over to a receiver appointed by it the assets of the trust, they will be held personally liable for them all in the federal court.

2. A party not appealing from a decree cannot take advantage of an error committed against himself, as for example that the appellant had omitted to prove certain formal facts averred in his bill and which were prerequisite of his case. But where -- assuming the fact averred but not proved to be true -- a decree given against a party in the face of such want of proof is reversed in his favor, it may be reversed with liberty given to the other side to require him to prove that same fact which the appellee, when seeking here to maintain the decree, was not allowed to object that the appellant had failed, below, to prove.

The suit was a creditor's bill filed against a judgment debtor and his assignees, the defendants in the case, to set aside an assignment made by the debtor to hinder and delay creditors. The assignment was made on the 4th of November, 1857, to Brewster and Clark, two of the defendants, and purported to convey to them all the property, real and personal, of the debtor in trust to convert the same into money, either at public or private sale, and pay certain preferred creditors named. The judgment debtor made no defense. The assignees put in a joint answer, and after requiring the complainants to make proof of their judgments and executions as charged in their bill, set forth, among other grounds of defense, that after the filing of the bill below, a bill in chancery had been filed against them in one of the state courts in behalf of other creditors of the judgment debtor,

Page 69 U. S. 192

praying for the appointment of a receiver to take possession and charge of the property conveyed by the assignment, and that the trusts therein created be carried into effect, and that, upon the filing of the bill in the state court and after hearing the motion for a receiver, the motion was granted, and that they had afterwards, in pursuance of the order of the state court, transferred and set over to the said receiver, one Mitchell, all the property, real and personal, that had come to their hands.

To this answer a replication was filed, and the parties went to their proofs. There was no evidence that on the application in the state court for a receiver, which was made on the alleged ground of faithless execution of the trust, the assignees had made opposition. They had done nothing but acknowledge service on themselves of the notice of the intended motion for a receiver, employ a solicitor to enter an appearance for them, and to give their assent to the hearing of the motion at the February Term of the court, then at hand. The state court accordingly granted the prayer of the bill before it and appointed a receiver, one Mitchell, in the case. But no fraud was proved nor specifically alleged on the part of the assignees in any part of the proceeding.

The bill below was taken, as confessed, by Brewster, the debtor, and dismissed as to two other defendants, and the court, after hearing the case on the pleadings and proofs, declared the assignment fraudulent and set it aside, and appointed a receiver, one Moulton, and directed the judgment debtor to assign and transfer in writing to him all his property, real and personal, and further that Brewster and Clark, the assignees, should assign and transfer in writing to him all the property and effects of every description that came into their hands by the assignment of the 4th of November, 1857, except such property and effects so assigned to them, which have, since the service of process in this suit, been transferred to Mitchell, the receiver, under the proceedings had in the state court, and which was set forth in the answer filed by them. From this decree the complainants appealed to this Court, the ground being essentially that the proceeding in

Page 69 U. S. 193

the state court should have been treated as an interference with the federal jurisdiction previously acquired.

In order to understand this question of priority, it is necessary here to say that the bill in the circuit court was filed on the 4th of January, 1858; the subpoena served on the defendants on the next day; and their appearance entered on the 1st of February following. The bill in the state court was filed on the 1st of February, 1858, and the subpoena served on the 20th of the same month. The receiver was appointed afterwards on notice. The evidence did not show that the defendants conveyed the effects of the judgment debtor in their hands to the receiver, but the fact was apparently assumed both by the counsel and the court below, and no point upon it was made by the Court here.

Page 69 U. S. 195

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