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ISAAC SHELBY, COMPLAINANT, v. JOHN BACON

December 1, 1850

ISAAC SHELBY, COMPLAINANT,
v.
JOHN BACON, ALEXANDER SYMINGTON, THOMAS ROBINS, JAMES ROBERTSON, RICHARD H. BAYARD, JAMES S. NEWBOLD, HERMAN COPE, THOMAS S. TAYLOR, AND GEORGE BEACH.



THIS cause came up on a certificate of division of opinion between the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania. The complainant was a citizen of Kentucky, and the defendants were all citizens of Pennsylvania. The latter (under three assignments bearing date the 7th of June and the 4th and 6th of September, 1841) were trustees of the Bank of the United States, a banking institution incorporated by the legislature of the state of Pennsylvania, by an act passed on the 18th day of February, 1836. It appeared that the bank, being unable to meet its liabilities, made an assignment of a part of its property on the 1st of May, 1841, to certain trustees, to secure the payment of sundry post-notes, held by certain banks of the city and county of Philadelphia. Afterwards, on the 7th of June, 1841, it made another assignment of a portion of its property to the defendants Bacon, Symington, and Robins, in trust to secure the payment of its bank-notes and deposits. Subsequently, two other assignments were made by the bank to the defendants Robertson, Bayard, Newbold, Cope, and Taylor, in trust for the payment of its debts generally, the first of which was executed on the 4th, and the other on the 6th of September, 1841. These several assignments were duly recorded, and the trustees accepted and proceeded to minister the trusts. The bill and amended bill, after setting forth the chartering of the bank, and the assignment of its property to the defendants in trust, alleged that on the 6th day of September, 1841, one George Beach, a citizen of Pennsylvania, recovered a judgment in the District Court for the city and county of Philadelphia, against the said bank, for the sum of $53,688.66, besides interest and costs; that this judgment was founded on promissory notes of said bank, called post-notes. That subsequently the said George Beach, in a suit on said judgment, in the Commercial Court of New Orleans, recovered a judgment for the sum of $53,688.66, with interest thereon and costs; on which the sum of $4,075 was paid; and that the residue of both said judgments remains unpaid. The bill then alleged, that through several mesne assignments the complainant became invested with all right under said judgments; that the debt due is provided for in said assignments, but that the trustees have refused to pay any part thereof; and that they have kept complainant and other creditors in ignorance of the situation of the trust funds. Prayer for a decree for an account of the trust, for the payment of complainant's debt in full or a distributive share thereof, and for general relief. The defendants Robertson, Bayard, Newbold, Cope, and Taylor pleaded as follows:–– 'That the said corporation mentioned in said complainant's bill, viz., the President, Directors, and Company of the Bank of the United States, incorporated by the state of Pennsylvania, and having its banking-house and chief place of business in the city of Philadelphia, did, on the fourth and sixth days of September, in the year one thousand eight hundred and forty-one, execute and deliver to these defendants assignments and transfers of certain property upon trusts therein particularly set forth,–as by reference to copies of said assignments attached hereto, and made by reference part of this their plea, will fully and at large appear; that said assignments, after having been duly proved, were afterwards, to wit, on the fourth and seventh days of September, A. D. 1841, recorded, according to the statute of Pennsylvania in such case made and provided, in the office for the recording of deeds, &c., for the city and county of Philadelphia,–the execution of the trusts thereof having been previously accepted by these defendants. And these defendants further aver, that, in accordance with the provisions of the laws of the said state of Pennsylvania, full and complete jurisdiction of and over the said trust fund so conveyed to these defendants, and of and over the execution of the said trusts, and of and over these defendants personally, as trustees as aforesaid, was and is vested in the Court of Common Pleas of the city and county of Philadelphia, which now has cognizance of the same, with ample power and authority in said tribunal to enforce the execution of the said trusts, to decide upon the rights of all parties claiming an interest therein, and right and justice fully to administer in the premises; that, in the execution of the trusts aforesaid, and the collection of the assets so assigned to them, these defendants have been governed by the laws of Pennsylvania, and, among other things, by certain laws of the said state, by which they have been compelled to accept and receive from their debtors, in payment of debts due to the said bank or to the said trustees, at par, the notes and other evidences of debt issued or created by the said bank; and the defendants further aver, that, having in part executed the trusts so as above committed to them, they did, on the seventh day of January, A. D. 1843, file in the office of the prothonotary of the Court of Common Pleas aforesaid an account, duly verified, of their receipts and disbursements, and of their acts and doings, as trustees as aforesaid, from the commencement of said trust down to the first day of January, A. D. 1843; and subsequently, to wit, on the thirteenth day of January, A. D. 1844, they did file a further account in the office aforesaid, and duly verified as aforesaid, of their receipts and disbursements, acts and doings, as aforesaid, down to the first day of January in the year 1844, which said accounts were absolutely confirmed by the said court, agreeably to the laws of the said state; and the defendants further aver, that on the seventeenth day of January, 1845, and on the thirteenth day of January, 1846, respectively, they filed additional accounts as aforesaid, in the office aforesaid, showing their receipts and disbursements, acts and doings, aforesaid, down to the first day of January, A. D. 1846, which said last-mentioned accounts were referred by the said court to auditors, who have made reports thereon, respectively, to the said court; and the defendants further aver, that on the fourteenth day of January, A. D. 1847, they filed another accounts as aforesaid, showing their administration of said trust down to the first day of January, A. D. 1847, which said last-mentioned account was likewise referred by the said court to auditors, before whom the same is now pending,–as by reference to the records of the said court will fully appear; and these defendants further aver, that, in pursuance of the direction and decree of the said court, they have distributed and paid over large sums of money, being the proceeds of the assets assigned to them as aforesaid, and have likewise, under the direction of the said court, invested large sums of money to await the result of pending litigation, and in all other respects have conformed to the directions of the said court in relation to the trust aforesaid. 'All which matters and things these defendants do aver to be true, and plead the same to the whole of the said bill, and humbly demand the judgment of this honorable court, whether they ought to be compelled to make answer to the said bill of complaint; and humbly pray to be hence dismissed, with reasonable costs and charges in this behalf most wrongfully sustained.' The other defendants pleaded the same plea in substance, reddendo singula singulis. The cause coming on to be heard on the amended bill and pleas, the judges were divided in opinion on the following points: 'First. Whether the facts stated in the plea to the amended bill filed by John Bacon, Alexander Symington, and Thomas Robins, deprive this court of jurisdiction of the case, and whether the said plea is a sufficient plea to the plaintiff's bill, and ought to be allowed. 'Second. Whether the facts stated in the plea to the amended bill, filed by the defendants, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, deprive this court of jurisdiction of the case, and whether the said plea is a sufficient plea to the plaintiff's bill, and ought to be allowed.' The following sections of the Act of Assembly of Pennsylvania, of 14th June, 1836, were relied on in argument, and are therefore inserted. 'Sect. VII. It shall be lawful for the Court of Common Pleas of the proper county, on the application of any person interested, or co-trustee or co-assignee, to issue a citation to any assignee or trustee for the benefit of creditors, whether appointed by any voluntary assignment, or in pursuance of the laws relating to insolvent debtors and domestic attachments, requiring such assignee or trustee to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court, within a certain time, to be named in such citation. 'Sect. IX. The several Courts of Common Pleas shall, by a general order, or by such order as the circumstances of any particular case may require, direct the prothonotary of the same court to give notice of the exhibition and filing of every account as aforesaid, during such time, and in such public newspapers, as they shall appoint, setting forth in such notice, that the accounts will be allowed by the courts at a certain time, to be stated in such notice, unless cause be shown why such account should not be allowed. 'Sect. XI. Whenever it shall be made to appear in a Court of Common Pleas, having jurisdiction as aforesaid, that an assignee or trustee as aforesaid has neglected or refused, when required by law, to file a true and complete inventory, or to give bond with surety, when so required by law, or to file accounts of his trust, or that such assignee or trustee is wasting, neglecting, or mismanaging the trust estate, or is in failing circumstances, or about to remove out of the jurisdiction of the court, in any such case it shall be lawful for such court to issue a citation to such assignee or trustee to appear before the court, at a time to be therein named, to show cause why he should not be dismissed from his trust. 'Sect. XII. On the return of such citation, the court may require such security, or such other and further security from such assignee or trustee, as they may think reasonable, or may proceed at once to dismiss such assignee or trustee from the trust. 'Sect. XIII. The like proceedings may be had whenever it shall be made to appear to such court, that any person who shall have become surety for any assignee or trustee as aforesaid, in any bond, given for the due execution of the trust, is in failing circumstances, or has removed out of this Commonwealth, or signified his intention so to do. The case was argued by Mr. Clay, for the complainant, and by Mr. Wm. A. Porter and Mr. George M. Wharton, for the defendants.

The opinion of the court was delivered by: The mere statement of these questions is an answer to them. The Constitution of the United States expressly confides to the Federal judiciary all controversies arising between citizens of different states. It is the constitutional privilege, therefore, of a citizen of one state to sue a citizen of another state in the tribunal which is common to them both. He cannot be deprived of this right by any act of the state of which he is not a citizen. Nor is this right at all impaired or affected by the nature or object of the suit which he prosecutes. It cannot be contended, that, because the subject-matter of controversy arises out of the local laws of a state, he is bound to submit to the tribunals of that state, and is stripped of his privilege to appeal to the Federal tribunal. It is true, when he goes before the latter, that is bound, in the particular case, to administer the laws of the state which govern it. But the Constitution of the United States is founded on the presumption, that the Federal judiciary will be less biased and more impartial in the administration of justice between citizens of different states than the local tribunal of one of them would be.

Mr. Clay, for complainant.

The Bank of the United States, chartered by the state of Pennsylvania, having become insolvent, executed several deeds of trust conveying all their assets for the purpose of paying their debts, according to classifications of them described in the said deeds. By two of the same deeds provision was made for the payment of the debt of the complainant, to recover satisfaction for which is the object of this suit. That debt originally existed in the form of post-notes. These post-notes were reduced to a judgment, in the name of George Beach, obtained in the Court of Common Pleas of Philadelphia. This judgment, by various assignments, was transferred to the complainant, and became his property.

The defendants refused to pay the amount of this judgment. They refused even to recognize the complainant as one of the creditors of the bank, who was entitled to a ratable proportion of the assets of the bank, transferred to the defendants, in common for his benefit and that of other creditors.

It was under these circumstances that the complainant instituted this suit. The objects of this suit were, first, to compel the defendants to admit the complainant as one of the creditors, to receive his distributive share of the common fund; second, to have an account of the execution of the trust, as far as the defendants had proceeded in it; third, to compel the defendants to complete the execution of the trust, by collecting, selling, and distributing all the assets on which they have not previously administered.

The complainant is a citizen of Kentucky, and the defendants are citizens of Pennsylvania. The parties, therefore, stand exactly in that relation to each other, which, according to the provision of the Constitution of the United States and the law of the United States, entitled the Federal judiciary to entertain jurisdiction of the controversy. In consequence, the complainant brought this in the Circuit Court of the United States for the Eastern District of Pennsylvania.

The defendants pleaded to the jurisdiction of the court. Their plea, in substance, is, that by the local laws of Pennsylvania jurisdiction is conferred upon one of her local tribunals over all matters of trust, to control, manage, and finally and exclusively to settle and close them. That the defendants have proceeded before that tribunal, in part, to settle and account for the assets which they have received; and that they are only amenable to that local tribunal for the further and complete execution of the entire trust.

The two judges composing the Circuit Court of the United States for the Eastern District of Pennsylvania, being divided in opinion as to the sufficiency of this plea to the jurisdiction of the court, certified that difference, and the question and only question which this court has now to determine is, whether the Circuit Court had or had not jurisdiction of the cause.

That question involves two others;–first, had the complainant a right, by the Constitution and the law of the United States, to resort to the Federal tribunal; and secondly, whether he could be divested of that right by the laws of any state, in the passage of which he had no voice. To which may be added a third question, and that is, whether, if the state of Pennsylvania could divest a citizen of Kentucky of a right with which he is invested by the Constitution of the United States, that has been done by the laws of that state, and the proceedings which have taken place under them.

If, by any arrangement of its own laws and tribunals, a state or legislature of a state could divest the Federal judiciary of that branch of its jurisdiction which relates to controversies between citizens of different states, it might, by other or similar arrangements, divest their judiciary of all judicial power granted to it by the Constitution of the United States.

So careful has Congress been to preserve to the citizens of different states their right to be heard before the Federal tribunal, that it has provided, by the act of 1789, that when a citizen of one state is sued by a citizen of another state, in a state court, the defendant may remove the cause into the Federal court.

It is not, therefore, true, as a universal proposition, that in cases of concurrent jurisdiction the court that first acquires it can hold fast on the case, to the exclusion of the concurrent court.

If the defendant fail to avail himself of his privilege to remove the cause in due season, he deprives himself of the benefit of the Federal tribunal, and is bound to submit to the local jurisdiction. But it is not pretended that the complainant in this cause has ever waived his right to the Federal jurisdiction. He was no party to the proceedings of the trustees in the Court of Common Pleas of Philadelphia. No process from that court was ever served upon him; no opportunity ever existed, therefore, for him to remove the cause from the local to the Federal tribunal. And if such opportunity had presented itself, the complainant, being only one of the numerous persons concerned in the trust, could not have removed the settlement of the accounts of the trustees from the Court of Common Pleas of Philadelphia to the Circuit Court of the United States.

I submit, then, with great confidence, to the court, that the Constitution of the United States, which is paramount to all state constitutions and laws, having secured to Isaac Shelby, the complainant, a citizen of Kentucky, the privilege of bringing his suit in the Circuit Court of the United States against the defendants, citizens of Pennsylvania, the power of that state is incompetent to deprive him of that privilege. Upon an examination of the laws of Pennsylvania in relation to trusts, the settlement of trustees' accounts, and the distribution of trust funds, it will be found, I think, that the jurisdiction conferred on the several Courts of Common Pleas was only preliminary and precautionary, and not final and absolutely conclusive. The object was, on the one hand, to exert a salutary supervisory authority over the trustees, to prevent the waste and misapplication of the trust funds, and, on the other, to afford protection and security to the trustees, by the sanction of a court of justice, in the periodical settlement of their accounts, and in the investment and distribution of the trust funds.

The provisions in the laws of Pennsylvania bear a strong similitude to the laws which prevail in all the states, in respect to the settlement of the accounts of executors and administrators. The County Courts and the Courts of Probate have full jurisdiction over executors and administrators, their removal, the settlement of their accounts, and the final distribution of the estates of the deceased. It has never been thought or contended that their jurisdiction excludes that of courts of justice, to which appeals are made for a revisal of the conduct and accounts of such executors and administrators; and on such appeals, what has been done under the sanction of the County Court or Court of Probate will be so far respected as to be presumed to be rightly done, and the onus probandi will be thrown on the party impeaching it. So, in a case of the settlement of a trustee's account before the Court of Common Pleas, the account will be held prim a facie evidence of a proper settlement, until the contrary be shown by the party contesting it.

Assuming that the Court of Common Pleas has any exclusive jurisdiction over these trusts and their administration, what is the extent of that exclusive jurisdiction? It must be limited to what has been actually done by that court, or is now pending before it. It cannot extend to the question, for example, of the rights of Isaac Shelby, which are not submitted to that court. It cannot extend to what remains to be done in the execution of the trust, that is to say, in collecting outstanding debts, selling real estate and other property not yet disposed of, collecting the proceeds of sale, &c., &c. These are matters which are not now before the Court of Common Pleas, which may never be brought by the trustees before it, but which are properly and legitimately included in this suit.

I made an examination into the laws of Pennsylvania in respect to trustees some time ago, and regret I have been unable to refresh my recollection of them by a perusal at this time. If my memory does not deceive me, they recognize, if they do not expressly authorize, the investigation of the ...


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