REDFERN et al. v. RUMNEY et al., 20 F. Cas. 394

CRANCH, Chief Judge. It ha.s been argued as if the complainants had fully established their claim against Hodgson, and the court will so consider it, although if it were questioned, it is doubtful whether that fact is sufficiently proved. The counsel for the complainants relies on the act of assembly of Dec. 20, 1792 (Laws Va., vol. 1, p. 160), “directing the method of proceeding in courts of equity against absent debtors, or other absent defendants, and for settling the proceedings on attachments against absconding debtors.” But the complainants’ bill is neither founded upon, nor supported by that act.

It states no ¿bsént debtor, or absent defendant, but expressly states their debtor, Hodgson, to have departed this life before the institution of this suit. Hodgson was no longer their debtor. Their debtor was either the assignee under the bankrupt laws, or the executor or administrator of Hodgson. There is, however, one ground of equity against Rumney, stated in the bill, and that is, that he received from Hall effects in trust to pay the debts of Hodgson; but this ground is denied by Rumney’s answer, which states that what he received, he received as agent for the assignees, and to be remitted to them.

This the complainants have admitted to be a sufficient answer, by not excepting to it for insufficiency; but if it is not, then the averment in the bill stands unanswered by the defendant, and not proved by complainants; it cannot, therefore, be the foundation of a decree. If it should be said that Rumney should be charged as executor in his own wrong, the answer is, that that is a ground of relief at law, and not in equity, and there is no allegation in the bill to charge him as such.

There being, therefore, no ground of equity admitted or proved, it becomes unnecessary to decide the point on which the cause was argued. The question argued at the bar was, “whether the effects of an English bankrupt in this country are transferred by the assignment; or whether the act of assembly prevents the operation of that assignment in this country.” The authorities cited on that point were Chevalier v. Lynch, 1 Doug. 170; Hunter v. Potts, 4 Term R. 182; Sill v. Worswiek, 1 H. Bl. 665; Phillips v. Hunter. 2 H. Bl. 402; Coop. Bankr. Law, 328; Harris v. Mandeville, 2 Dall. [2 U. S.] 256.

It is sufficient as to that point to say, that the counsel for the complainants rested his whole claim upon

an act of assembly, which does not in any manner apply to their case. The bill,' therefore, must be dismissed with costs.