the conveyance at the time it was made could be a legal charge. The deed was in law, therefore, a pure gift, although it might, and did, result ultimately in diminishing the devise to the defendant under the will. 'l'his devise was also a gift, which would have been subject to the like succession tax had the law not been repealed. As an "advance" the deed was a gift, and none the lesi! so because a subsequent gift by devise ",'as thereby made so much the less. As the defendant, on receiving this deed, parted with no present valuable interest recognizable in law, and was not in consequence of the deed subsequently deprived of anything to which or in which, at the time the deed was made, he had any legal interest, right, or property, the deed must be held to be within the statutory definition of a successian; and judgment is, therefore, ordered for $1:20, with interest and costs.
GLEN IRON WORKS,
,District Court, E. D. Pennsylvania.
SUBscnIPTIONS-LIABILITY OF tiTOCK-
The capital of an insolvent private corporation, suhscrihed by stockholders, snhjeet to as<es,ment caB; by a board of directors, remaining unpaid, and not ealled 01' assesse I by the directors, are to jnrlgment creditors of the corporation, and llIay he s"izcr! as well hy Writs of aaachment execution issned against the stockholders f,S by '\ cred.tors' Lill.
NOrRs-ASSERS'IENTS AND CALLS
'Where the articles of association of a corporation provided for a capital stock of $141.l,OOLl, and stipn a'ed that the stoekhol(lers hould give th ·i,. notes, withont intere', for th.)ir re_pe ·tive subscriptions, which note_ S!lOnld n"t he liable at any time to an as e_sment for more than 50 per centum of their face, held that, in case of insohTnr,y, the whole capital subscrihed was liahle tocrcditors; ami the corporation h'lVi<lg hecome bankrupt after 20 per centu:n of the capitallHtl1 heell as_cs_ed and pa'd in, that the stockholdt'rs were Iiahle to creditors for their rcs;:ective proporti illS of the whole unpa,d amount suuscriLed.
The corporation having heen declared hankrupt. upon proccedings instituted suh<e.plently to the service of 8U 'h writs of attacll"lH'nt excclit on upon stockholders, and the unpaid capital having heen awarded 10 the as_ignee. without prejudice to the rights of· attaching crediloB, and with provision for their intervention, upon the intervention of the attaching cre.blors, clfliming the amount of their jndgme'lt out of the fnnrl in the hands of the a __ llfld, that the same was lia'de to the l,en of the attacllments, and should ue awarded to the attaChing creditors.
Exceptions to Register's Report. , The subscriptiull list or articles of association of the Glen Iron Works, a corporation, pro\'ided, inter alia., for a capital of $140,000, and the subscribers agreed to give \heir notes therefor without interest; not to be liable at any time to an assessment of mure than 50
tReported hy Albert B. Guilbert, Esq., of the Philadelphia bar.
IN RE GLEN mON WORKS.
per centum of their face, nor to an assessment of more than 20 per centum within 18 months after organizatiOn. The notes were in the following form:
One day after date - - - promise to pay to the Glen Iron ·Works. or its order, the Slllll of - - - dollars. withont defalcatiun, fur value received. This note is given for the fnll'arnonnt of - - - snLJscription to tile capital stock of the said Glen lroll 'Yorks, and is suujed to such assessments, frum time tu time, as tlte board of diredors of the said Glen Iron iVorks may dE'em necessary: Jlru'cided, sueh aSSE'SSllleuts do not, in the aggregatE', exceE'd 50 per centum of thE' face of tlte alJove note, nor more than 2U per ccutum thereof within 18 months from the date of tltesame. All assessments made and paid to he credite!1 hereon. It is fnrther provided that this note is with ant interest; and that, in the event of the said The Glen Iron Works declaring dividend or llivitlends out. of an.v pro:its made, the sallle shall be creditetl hereon in thE.' proportion to which tlte nnmberof sltare.3 of tlte capital stock stanuing to - - - name may entitle, nntil the full amonnt of the abuve note, 1Jy reasun of credits 1Jy assessmeuts anll divirlenus afores:tid. shall be paid, when the same shall be retnrned to the subscriber or legal representatives, and in lieu thereof a paid-up certificate of sto!;k 1Je is.meu.
l'11e stockholders, upon the call of the directors, having paid in 20 per centum of the amount of their subscriptions, Wil"on and others, juLlgment creditors of the corporation, having a judgment for $25,000, on January I, 1875, issued writs of attachment execution, and summoned as garnishees the respective stockholrlers and subscribers to the capital stock. An of 30 per centum, in addition to the 20 per centum already paid in, had been called by the directors, but It rescinding resolution had been passed by the directors prior to the issuing of the attachments. Subsequently proceedings in bankruptcy were instituted, and the corporation declared bankrupt. On September 4, 1878, the whole amount of the unpaid capital was awarded to the assignee, subject to the rights of the attac!ling creditors, gnd with leave to them to intervene. See the elaborate opinion of CADWALADER, J., Wilhur v. The Stockholders, 35 Leg. r nt. 346. The register, upon considemtion of the claim of the attach ing creditors, reported that no lien existed by reason of the attachments, and awarded the fund to the general creditoril, whereupon the attaching creditors excepted. P. K. Erdman, R. E. JVright, Jr., and R. C. J.lcllIIl1'trie, for the attaching creditors. JfT. D. Luckenback and Ecltcard Han·f.lJ, contra. BUTLER, J. The point decided on the assignee's petition was the responsibility of stockholders for unpaid subscriptions. No distinction was recognized between the 30 per cent., liable to assessment under the article of association, and the remaining 50. The company's insolvency being shown, the whole was declared due,-the failure of the company to assess, being treated as immaterial. The effect of outstanding attachments was not considered, the question being expressly reserved, unprejudiced by anything done or said. As the opinion filed shows, the decree rests upon the conclusion that
unpaid subscriptious are assets, available for the payment of debts; that while the company, during solvency, could recover only in pursuance of the articles of association, the limitations of this instru. ment became inoperative when insolvency occurred; and this latter fact appearing, and the entire amount being necessary to satisfy credgeneral subject is fully itors, its payment should be required. discussed in the opinion; and little need be added to what is there said, in disposing of the question now in hand. On behalf of the general creditors it is asserted that the garnishees owned nothing when the attachments issued, that they were subject to no liability whatever, and that there was nothing, therefore, upon which the writs could operate. No other question is raised, and no other will, therefore, be considered. My judgment is against the position stated. The obligation of the stockholders, enforced in the decree referred to, did not commence with the decree. It arose out of the act of subscribing, and continued from that time. To the extent of his subscription the stockholder at once became, and thereafter remained, contingently responsible. It was possible payment might never be required,' but to all who dealt with the company it was an existing obligation, liable to enforcement when other means of payment should Jail. The obligation (as respects creditors) was similar to that of guaranty. An assessment by the company, or decree by the conrt, was required to determine the necessity for resorting to it. If the company failed in its duty to assess, when it should, tbe assistance of the court might be invoked. Usually such assistance is invoked by bill. Why may it not be by this statutory attachment? In every method of proceeding (in such cases) the stockholder is treated as a debtor of the corporation. The obligation is directly to it, though for the benefit of creditors. Recovery, it is true, cannot be had without proof of insolvency; but this fact can as readily be determined in such proceeding, by attachment, as by bill. It need not be determined in advance of the writ. The process will bind whatever is embraced in the obligation, and upon proof of insolvency, recovery may be had. As before stated, this fact can safely and readily be determined in this proceeding. The attachment is of the nature of equity process, and the practice nnder it embraces the amplest means of discovery, and the fullest opportunity for administering justice to the parties. I cannot doubt, therefore, that the obligation of the stockholders might have been ascertained, declared, and enforcE.d, in that proceeding, nor that it would ha,e been, had not the company gone into bankruptcy, and thus transferred the inquiry to this court. I am at a loss to understand what defense the garnishees, or defendant, could have raised, with any prospect of success. The corporation being insolvent, the money was not simply owing, but presently due. I do not see any other question than the latter, that they could have presented; and this would have involved only the liability to imm9diate
IN BE "GLEN IRON WORKS<
p1yment. Money owing under every description of contractual obligation is subject to attachment. As before observed, the writ and practice under it, are of the nature of equity process and practice, devised for the purpose of reaching what a common-law writ will not, and thus avoisling the necessity of resorting to equity proceedings in such cases. I have said the company was insolvent. The fact does not seem open to doubt. The unsatisfied judgments and outstanding executions might well bOl regarded as sufficient prima facie evidence of it; but subsequent events, and the investigation of the court, put it beyond doubt. What constitutes insolvency, and how it must be shown, under the Pennsylvania statute of 1836,1 relating to execution, are not questions in this case; and what the courts of this state have said on that subject is, therefore, unimportant. The term "insolvency;" as here involved, signifies insufficiency of property to satisfy creditors; and this fact may be shown by any evidence that will satisfy the court, and, for the purposes of this case, at any time while the money is undisposed of. Whether, however, the company was insolvent and the money presently due when the writs issued, I incline to think is unimportant. If it was not due, this fact, I am disposed to believe, would not affect the result. The liability, at least, existed, and this the writs probably attached, entitling the creditors to recovery when the money was subsequently declared due. This, however, need not be decided. The denial of judgment in the assignee's suits at law, and in Patterson v. Lynde, 106 U. S. 519, [S.C. 1 Sup. Ct. Rep. 432,] was because of the absence of privity between the parties-without which, of course, such an action would not lie. In Patterson v. Sinclair, 2 Norris, 250, the supreme court of Pennsylvania recognizes the right to recover by attachment under circumstances such as exist here. I would refer also to Ogilvie v. Ins. Co. 22 How. 387. The money covered by the attachment must be appropriated to them.
1 The Pennsylvania act of .June 16, 1836, § 35, provides that an attachment sur judgment may issue in HlC same mauner and with like uffcet as in eases of foreign a!tachment; and the act of June 13, 1836, relating to foreign attachments, proVIdes for the attachment of the goods and chattels lands and tenements of the defendant, in whose hands or possession soever the may be.-[REP. '
In ?'e COOK and another.
(District Court, S. D. New Y01'k.
BANKRUPTCY-ASSIGNEE'S ACCOUNT Fon ATTO"NEY'S CHAnUEs.
An as,ignee's account for moneys patd to an attorney for services not authorIzed hy the court cannot be allowed beyol1l1 wimt the evidence shows to be reasonable, having reference to the amount and circlllllstanees of the e3tate.
OF BAXKRUPT'S ESTATE.
2. 3. 4.
It is the hllsiness d the as,ig;.:tee to make reasonahle pl'Liiminary inquiries as regards the facls of alleged conce"lment of tiLl bankrupt's property
S,UlE-ASSIGNEE CIADIIXG Fon SEHYICES AS ATTO·\l\EY.
An attorney, in performing the ordinary dUlies of the assignee, cannot claim from the estate compensation as for professional services.
IN SEAHCUlXG Fan PeOPEHTY.
An assignee cannot be permitted to ('xpc.ld the ell,ef part of collected lly him in the ('mployment of an attorney to tind addition.al pr\)perty, which results in nothing. 5. S,UIE-,\LLOWANCE FOIt ATTOHNEY'S FEES. . ,Yhen' in b7-! an re, e.ved $1,250 upon sale of the bankrupt's bookaccounts ahout tw,) months after the adjlld cation, and in 1883 presented his account. in which $171.2i.l was charged for 'sements and $1,06.3.36 for moneys paid to hiS a torney for alleged services, none of which was ever anthorized by the court, and the attorney being dend and no hill of items being produced. and the testimony as to services being vague and general, held, that i!i:300 only shonld be allowed for the attor!ll'y, and that the assignee should account for the residue, with intelest -tile money been "i by his 0 \ ,1 business firm.
Objections to an Assignee's Discharge. Hoes J: .Horgan, for the assignee. D. TV. }.'lIcLenn, for creditors opposed. BROWN, J. The assignee of the bankrnpts in the above matter applies for the approval of his account, and for his discharge, upon the report of the register, to which objection is made on behalf of the creditors. The eutire receipts of the assignee amounted to the sum of $1,250, derived from a single sale of the bankrupt's hookaccounts, of $6,fiOU,made on the twenty-fourth day of November, 1874. No other collections were made by the assignee from any source. His charges against the estate, in the account presented by him, are being $44.86 in excess of his receipts. There has never been any dividend to creditors. The estate is debited $171.20 for fees of the clerk, register, and mar::;hal, and for advertising in the various stages of the The residue of the debits is for moneys paid to E. C. D. Kittrenge for his senices as attorney for tlle assignee, as follows: June 13, 1874, $50; December 7,1874:, $250; November 29, $368.36; December 16, 1876, $400; in all, $1,OG8.36. The attorney died before the presentment of the assignee's account. The bankrupts were copartners, doing husiness in this city, and proceedings in bankrnptcy against them \'I'ere commenced by a peti-