1837.

Hosack

V.

Rogers.

several other creditors in a very large amount, A. Gracie, in behalf of the firm, made an assignment of certain claims. which they had upon the British government, for the payment of the debts of such of the creditors as should become parties to the assignment and should thereby release the two junior partners of the firm from all further liability. And A. Gracie, the senior partner, covenanted with such creditors that if the assigned claims upon the British government should prove to be insufficient to pay their debts in full, the deficiency should be paid out of the monies which might be recovered and received by him, or his executors or assigns, from the French government, on account of certain large claims which he then had upon that government; when and as soon as the monies for such claims should be received by him or his executors or assigns. The claims of A. Gracie upon the French government arose out of the capture and condemnation of his property under the Berlin and Milan decrees; upon which property $20,000 had been insured by the Commercial Insurance Company in 1807. After the property upon which this insurance was made had been sold under the orders of the French government, Gracie abandoned to the underwriters. He afterwards recovered a judgment for the full amount of the policy against the company, in May term, 1816; but, as was alleged by the complainants, no record of the judgment against the insurance company was ever made up and filed. The insurance company subsequently became insolvent, and J. B. Murray and others were appointed trustees of its effects, and only a part of the judgment was paid to Gracie. In the assignment of A. Gracie & Sons it was provided that if any of the creditors residing in the United States should neglect or refuse to become parties thereto for the space of thirty days from its date, or, if residing out of the United States, for the space of six months, their share of the assigned property should be paid to such creditors as should become parties to such assignment, to the extent of their several debts. All the creditors, except Baring & Brothers, Ewart, Myers & Co., King & Gracie, and A. T. Sampayo, who resided in England, became par

ties to the assignment by executing the same within the time prescribed. King & Gracie were the agents of A. Gracie & Sons in relation to their claims upon the British government, and were informed of the contemplated assignment and arrangement for the discharge of the two junior partners of the firm; but before they had notice of the execution of the assignment they had succeeded in recovering sufficient of those claims to pay thirty-five per cent upon the amount of the debts. They thereupon paid to the English creditors their proportion of the fund, according to the intended arrangement, and transmitted the residue to the United States, which was received and distributed rateably among the other creditors. Baring & Brothers and the other English creditors did not become formal parties to the assignment; but upon the receipt of their portion of the proceeds of the claim upon the British government, and within two months after the date of the assignment, they executed an instrument, under their hands and seals, by which, in consideration of the thirty-five per cent thus received, they agreed to accept the same in full of their debts so far as related to the two junior partners, but it was not to discharge A. Gracie, the senior partner by whose request and consent that discharge of the junior partners was given. The whole amount of debts due, including the balance of a debt due to R. King a part of which had been previously provided for, was at the date of the assignment $255,905, exclusive of interest thereon for about one year. And the amount due to N. Rogers & Sons, exclusive of interest, was $42,464. After the death of A. Gracie, his surviving executor, N. Rogers, caused his claims under the French treaty to be presented to the board of commissioners, and they were allowed so far that the amount of his dividend, exclusive of costs and agent's commissions, amounted to about $73,000. Murray, as the surviving trustee of the insurance company, was also allowed the full amount of the policy for the insurance money paid or to be paid to Gracie or his executor. And certificates for the several sums allowed were duly issued to the persons in whose faVOL. VI.

53

1837.

Hosack

V.

Rogers.

1837.

Hosack

V.

Rogers.

vor these allowances were made. About the time N. Rogers received the certificates for the amount allowed to him as the executor of A. Gracie, the complainants filed their bill in this cause, as the executors of A. Hosack, in behalf of themselves and other creditors of A. Gracie, against N. Rogers as his executor, and against the several creditors who were provided for in the assignment or their representatives, for an account and distribution of the estate of A. Gracie among his several creditors according to their equitable rights; and also for an injunction to restrain N. Rogers the executor from receiving the money on the claims allowed to him, or from receiving payment of the judgment against the insurance company out of the monies to be received by Murray on the claim allowed to him as trustee of the company. An injunction was allowed according to the prayer of the bill, but was not served until after N. Rogers had obtained the certificates of the amount allowed to him as executor. The complainants thereupon filed a supplemental bill, stating the fact that the executor had obtained the certificates, and praying for an injunction to restrain the several deposit banks in the city of New-York from paying the certificates and to prevent him from receiving payment thereon; which injunction was granted as prayed for.

Shortly after the issuing of the last injunction, the complainants petitioned the vice chancellor of the first circuit, before whom the proceedings were commenced, for an order directing N. Rogers the executor to surrender up the certificates to the clerk of the court, and for a receiver to collect the amount of the certificates as they became payable and to invest the same to abide the decision of the cause. This application was resisted on the part of the executor, who claimed the right to retain for the amount of his debt, not only out of the money due upon the judgment against the insurance company, and other personal estate of A, Gracie, but also out of the amount due on the certificates granted to himself as such executor, and who also claimed the right to receive and control the whole fund until a decree for the distribution thereof should be made in the suit. Several of the other creditors, who were made defendants in the original

bill, also appeared by their counsel before the vice chancel-
lor, upon the hearing of the petition, and resisted the claim
of the executor to retain in his possession any part of the
funds arising either from the French claims or otherwise.
After hearing the several parties, the vice chancellor made
an order that the executor should within five days deliver
to the clerk the several certificates and the money, if any,
which he had received thereon, and should execute the ne-
cessary power to enable the clerk to receive the money
due on the certificates and all other monies and effects be-
longing to the estate of Gracie mentioned in the bill and
supplemental bill; that he should attend and be exam-
ined on oath touching the premises; and that the clerk
should invest the monies in the New-York Life Insurance
and Trust Company on interest, to abide the further order
of the court, after paying to the executor his lawful com-
missions as executor; without prejudice to the rights of
any of the parties. From this order N. Rogers the execu-
tor appealed to the chancellor; and in the meantime he de-
posited the certificates with the clerk, but without endor-
sing the same or executing any other authority for the clerk
to receive the money thereon. Upon the coming in of the
answer of the executor, an application was made by him to
the vice chancellor to dissolve the injunction, or to modify
the same so as to permit him to collect the monies due
from Murray, as the trustee of the insurance company, to
the estate of A. Gracie; which motion was denied.
from this decision of the vice chancellor the executor also
appealed. After the argument of the first appeal, cross ap-
plications were made at different times by N. Rogers, and
by the complainants, for a temporary disposition of the
fund while such appeal was under consideration. But as
the parties could not agree as to what disposition should be
made of it, and as the certificates were not endorsed so as
to put the fund fully within the control of the court until
the appeal was decided, no orders were made upon those
applications.

And

1837.

Hosack

V.

Rogers.

1837.

Hosack

V.

Rogers.

J. W. Gerard & G. Griffin, for the appellant. The ap pellant having accepted the executorship of Archibald Gracie, and entered on the duties thereof prior to the year 1830, he had a vested right to retain for his debt out of any, then present or future assets. An executor may retain for an equitable debt. (Wm. Black. 965. 4 Vesey, jr. 763. Wms. on Ex'rs, 688. Weeks v. Gore, 3

Tol. on Ex. 297.

P. Wms. note. Waring v. Danvers,

1 P. Wms. 295.

Ram on Assets, 271.

Tol. on Ex. 415.

Nones v. Barlow,

1 Sim. & Stu. 588.
ry's Eq. 519, 520.

Ram on Assets, 271, 317. 1 StoMoses v. Murgatroyd, 1 John. Ch. Cas. 19. Codwise v. Gelston, 10 Johns. R. 57. Decker v. Miller, 2 Paige, 150.) The revised statutes operate prospectively and do not take away the right of retainer in antecedent cases. (Dash v. Van Kleek, 7 John. R. 477. Sayre v. Wisner, 8 Wendell, 661. The People v. Supervisors of Columbia, 10 Idem, 363. Ward v. Kitts, 12 Idem, 137. Van Rensselaer v. Livingston, 12 Idem, 490. 2 Paige, 150. 1 Story's Eq. 522. Bryant v. Marshall, 12 Mass. Rep. 321.)

The covenant of Archibald Gracie in the assignment, dated 27th April, 1824, to pay out of his French claims the deficiency, (if any,) arising out of the assignment of the English claims thereby assigned, was not an equitable assignment or mortgage of the French claims, so as to give the creditors a specific lien thereon, the covenant being a personal covenant merely. (Bailey v. Boulcott, 4 Russ. 345. Bradley v., Ridg. Ca. in Chan. temp. Hardwicke, 194. 2 Roses' Rep. 355, Ex parte Heywood in the matter of Holmes. 14 East, 582, Williams v. Everett. 2 Leigh's Rep. 19, Clayton v. Fawcett. 5 Verm. Rep. 97, Brainard & Newton v. Barton. Hagman v. Sompeyrac, 3 Louisiana Rep. 154. Lepard v. Vernon, 2 Ves. & Beame, 51. Vandekar v. Vandekar, 11 Johns. Rep. 122. Nicholls v. Trustees of Huntington, 1 John. Ch. Rep. 183. Heath v. Hall, 4 Taunt. Rep. 326.) The covenant is a several not a joint covenant. (5 Dowl. & Ryl. 106. 3 Barn. & Cres. 254. 5 Price, 529. 1 Saund. 153, n. 1. Chitty on Plead. 3, 6 and