Keyser, Judah & Co. v. Simmons et als.-Syllabus.

swer. (2 Sch. & Lef., 726; 4 Paige, 178; 2 Sand. Sup. Ct., 540.) An answer in support of a plea cannot be regarded (as was here done) as a defence independent of the plea. (6 Ves., 597.) It is to be treated as a part of the plea. Such is the form of judgment in such a case. (14 Pet., 281.) The answer here considered separate and apart from the plea, does not propose to set up the full defence of homestead, and in disposing of the case by a hearing upon the bill and answer alone, the matter of the plea not being considered, the defendant was at a disadvantage not sanctioned by any rule of practice. The same was the case when the plea was considered without reference to the answer. We cannot do otherwise than remand the case for proper proceedings. The final decree and the order overruling the plea are reversed, and the case is remanded to stand for hearing upon the plea and answer in support thereof, and for such further proceedings as are conformable to the principles and rules of equity and consistent with this opinion.

KEYSER, JUDAH & Co., APPELLANTS, Vs. B. F. SIMMONS, ET ALS., APPELLEES.

1. Where A. attends conferences of creditors as to the general settlement of the estate of an insolvent debtor, and during this period collects an asset of the insolvent under directions from him to hold the proceeds until settlement with creditors, and afterwards, at a final conference of creditors, resulting in a general assignment, he signs a statement admitting the claim so collected to be an asset of the insolvent, he is estopped from afterwards denying that fact and setting up his own claim as a set-off.

2. The recital in a bill brought by an assignee to recover assets which passed under the assignment, that he is also a creditor of the insolvent debtor, does not render the bill multifarious.

Keyser, Judah & Co. v. Simmons et als.-Argument of Counsel.

Appeal from the Circuit Court for Escambia county.

C. L. LeBaron & Son were the insolvent debtors mentioned in the opinion. They made an assignment of their effects to the complainants, B. F. Simmons, et als. The other facts of the case are stated in the opinion of the court.

J. C. Avery for Appellants.

I. Upon their bill appellees are not entitled to a decree. They sue (1) as creditors and (2) as assignees of C.L.LeBaron & Son.

Ist. As creditors: They claim that they are the beneficiaries of a trust created by C. L. LeBaron & Son, in appellants, by a transfer made December 26th, 1874, of the fund in dispute, and that as such they are entitled to a decree.

But the bill alleges that, afterwards, on the 23d of January, 1875, C. L. LeBaron & Son did assign the very same fund to other persons in trust.

Now if the last-alleged trust was created, the first couid not have been, because a trust once declared and accepted cannot be revoked. Hill on Trustees, 126, 7 & 8, 351; Burrill on Assignments, 325; 1 Wms. Extrs., 526; 2 ibid, 843.

But appellees say in their bill that this last-alleged trust was created a positive allegation to be taken as true against them. I Danl. Chanc. Prac., 838.

It therefore follows inevitably that the alleged trust of December 26th, 1874, was not created, and that appellees, as beneficiaries of such trust, cannot succeed--whether mediately or immediately.

2d. As assignees: Appellees claim that as assignees of C. L LeBaron & Son, they are entitled to a decree.

To sustain this claim, they allege that on the 23d of January, 1875, C. L. LeBaron & Son assigned the fund sued for to them.

Keyser, Judah & Co. v. Simmons et als.-Argument of Counsel.

But C. L. LeBaron & Son could not have passed anything by the assignment without some title, legal or equitable.

Now the bill alleges that before this, on the 26th of December, 1874, LeBaron & Son had transferred the same fund in trust to other parties. The legal title then vested in the trustees and the equitable in the cestuis que trust, leaving none in the assignors.

Hence, as assignees under the assignment of January 23d, 1875, appellees acquired nothing, and cannot succeed.

If LeBaron & Son did have any title to assign, then the money was held by appellants for LeBaron & Son, and appellees, as assignees, took subject to appellants' equities against LeBaron & Son. Burrill on Assignments, 438; 2 Story's Eq., §1,038.

That these objections may be raised at the final hearing, there seems to be no doubt. Story's Eq. Pl., §283; Davies vs. Quarterman, 4 Younge & Coll., 257; 1 Danl. Ch. Pr., 542-3.

Where property may be made the subject of a legal transfer-as in case of bills of exchange, promissory notes, &c.— an assignment will operate to vest the legal ownership in the trustees. I Wms. Extrs., 526; Hill on Trustees, 351; Story's Eq., §591.

II. It follows that the bill is multifarious.

The interest of the creditors and that of the assignees are not common.

They assert distinct and several claims against the same defendants.

The bill is therefore multifarious, because of the improper joinder of plaintiffs, claiming no common interest. Story's Eq. Pl., $279.

III. The bill is not sustained by the evidence.

Ist. The bill charges that appellants were LeBaron & Son's most trusted advisers; and on account of their high

Keyser, Judah & Co. v. Simmons et als.-Argument of Counsel.

standing in the community they were permitted to and did take a leading part in efforts made to bring about a settle

ment.

(a.) Admitting the charge, it is inconceivable that appellants should for that reason be precluded from taking measures for their protection which other creditors might have taken.

Creditors are not bound by an intention to assign. They are not bound, and may secure a lien by attachment at any time before the assignment is actually accepted by the assignees. Burrill on Assignments, 318-322.

There is nothing shown sufficient to abridge appellants' rights in this regard, more than those of other creditors, before assignment made and accepted.

(b.) But the answer denies that appellants enjoyed the prominence the bill awards them.

The witnesses for appellants all sustain the answer in this regard; while the witnesses for appellees, upon examination, were forced to admit that appellants' prominence was passive in its nature, arising from the amount of their debt and integrity of their character.

2d. The bill alleges that at the first meeting called by LeBaron & Son, they proffered to turn over all of their assets for the benefit of all their creditors, and that appellants assented thereto.

The answer denies this, and there is no evidence to sustain charge.

LeBaron in his testimony says the meeting was simply "to express my situation and know their views."

3d. The bill charges and the answer denies that the $1,500 was placed with appellants in trust for the creditors. The only evidence upon this point is the letter of LeBaron' & Son to appellants.

LeBaron in his testimony says it was also verbally under

Keyser, Judah & Co. v. Simmons et als.-Argument of Counsel.

stood; but Judah in his testimony denies this, saying the letter was all appellants had in relation to the fund.

'Tis true the bill charges and the answer admits appellants' silent acquiescence when, at the last meeting of creditors, a statement was read, embracing this $1,500 in LeBaron & Son's general assets, and appellants making no claim of right to hold the same. But in view of the circumstances, appellants silence cannot be construed as confessing the trust now sought to be fastened on them. It must be considered that this meeting and statement were both in connection with a proposed settlement with the creditors which had been in contemplation for more than a month, and which was to be carried out only in case of acceptance by all. With this understanding appellants signed. The arrangement failed, and LeBaron & Son made another and different assignment, without reference to agreement with creditors, under which appellees act.

Appellants then stood in the same position as before signing the statement.

It is in evidence that this proposed assignment made reservation in favor of the debtors; that alone vitiated the whole proceeding. Burrill on Assignment, 168, and authorities there cited.

We are thrown back then to the letter which accompanied the bill of exchange to ascertain in what capacity appellants received the $1,500.

Appellants are instructed to "collect for account of whom it may concern."

(a.) LeBaron & Son may have intended the collection for the benefit of all their creditors, but appellants are not charged with a knowledge of that intention, unless it was communicated, which is denied.

That LeBaron & Son did not intend to create such a trust as described, is evident from the fact they afterwards assigned the fund to other parties, and still later gave a