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Opinion of the court.

If the appellants acquired a prior equitable lien by the filing of their bill of complaint, they lost the same by the superior diligence of the complainants in the State court. The lien obtained by the filing of a creditor's bill is an inchoate one, which may be perfected by the appointment of a receiver, and may be displaced by the superior diligence of other creditors in perfecting similar liens. It is urged that the court below should have treated the proceedings of the State court as fraudulent and void; but it will be noticed that there was neither allegation nor proof of fraud in the case.

If the appellants had a superior lien upon the property in the hands of the receiver appointed by the State court, the proper mode of enforcing that lien was for the receiver of the court below to intervene in the State court by petition, pro interesse suo, where the lien, when established, would have been recognized and duly enforced. Upon establishing the right of the receiver of the court below to the property in the hands of the receiver of the State court, in the mode indicated, the State court would have ordered its officer to deliver the property over to the officer of the United States court. The court below declared the assignment void, appointed a receiver, and compelled the defendant, Brewster, to assign all his interest in the property. This was all the court could do; it could not order the assignees to deliver over property not in their hands, and which they had already delivered to the officer of the State court under its order.

Mr. Justice NELSON delivered the opinion of the court. It does not appear from the proofs in the case, that executions had been issued, and returned unsatisfied, as averred in the bill, and for the proof of which the answer of defendants called; and it is objected by the counsel for the appellees that this defect is fatal to the right of the complainants to maintain their bill. This would be so, if the appellees, against whom the decree was rendered, had appealed from

Opinion of the court.

the same, as in the case of Jones v. Green.* See also, Day et al. v. Washburn et al.† But here the complainants only have appealed, and the rule is settled in the appellate court, that a party not appealing cannot take advantage of an error in the decree committed against himself, and also, that the party appealing cannot allege error in the decree against the party not appealing. If the appellees desired to avail themselves of this error in the decree, they should have brought a cross appeal. By omitting to do so, they admitthe correctness of the decree as to them. The case stands before the appellate tribunal the same as if the error had been waived at the hearing.

This brings the case down to the question as to the effect to be given to the suit in the State court; and to the order of that court appointing a receiver, and directing the defendants to assign and set over to him all the effects of the judgment debtor in their hands, under his assignment of the 4th of November, 1857.

The bill in the Circuit Court of the United States, to set aside the assignment to these defendants as fraudulent against creditors, was first filed, and consequently operated as the first lien upon the effects of Brewster, the judgment debtor.

We agree that the defendants, as bailees and trustees of the property intrusted to their care and management for the benefit of the creditors of Brewster, were responsible only for common or ordinary diligence, such as prudent men exercise in respect to their own private affairs. But this degree of diligence the law exacts, and the courts of justice are bound to enforce. When, therefore, the bill was filed against them by the judgment creditors in the Circuit Court of the United States, to set aside the assignment as fraudu lent, it was their duty, arising out of their acceptance of the trust, to appear and defend the suit, as they have done, and

24 Howard, 355, 356.

* 1 Wallace, 330. Kelsey v. Weston, 2 Comstock, 505; Norbury v. Meade, 3 Bligh, 261; Mapes v. Coffin, 5 Paige, 296; Idley v. Bowen, 11 Wendell, 227.

Opinion of the court.

protect their title to the fund in controversy, so far as the nature of the transaction and the facts and circumstances of the case would admit or warrant. Their whole duty appears to have been discharged in this respect, and we perceive no ground of complaint against them. But, this duty was equally incumbent upon them in respect to the suit in the State court. They should have appeared and defended that suit; and, in addition to the defence on the merits, that is of their faithful execution of the trust, which was impeached by the bill, they should have set up the pending proceedings against them in the Federal court, which tribunal had first acquired jurisdiction over them, and over the fund in dispute, and were entitled to deal with it, and with all questions growing out of the relations existing of debtor and creditor of the parties concerned. Instead, however, of pursuing this course, no defence, as appears was set up by the defendants to the suit; no answer filed, nor even opposition made to the motion for the appointment of a receiver. The only part they seem to have taken in the proceedings is, besides acknowledging service of the notice of the motion for a receiver, the solicitors entered their appearance in the cause, and gave consent that the motion might be made at the then February Term of the court. It was at once made, and the receiver appointed and gave the requisite security..

Now, we think, here was a clear omission of duty on the part of the defendants, as trustees and bailees of the property in question, and for which they should have been held personally responsible. They should have appeared and defended the suit in the State court, and set up the pending proceedings in the Federal court, which was a complete answer to the jurisdiction of the former; and if this defence had been overruled, a remedy existed by a writ of error to this court, under the 25th section of the Judiciary Act.

The court below, therefore, erred in excepting from the transfer of the effects of the judgment creditors in the hands of the defendants to Moulton, the receiver, the property and effects transferred to Mitchell, under the order of the State court. For this error, the decree of the court below must

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Statement of the case.

be reversed, and the cause remanded to the court below, with directions to proceed on the same in conformity with this opinion; but liberty is given to the defendants to require proof before the court of the issuing of executions and return unsatisfied, as averred in the bill of complaint.*

DECREE, ETC., ACCORDINGLY.

CAMPBELL V. READ.

A question involving the construction of a statute regulating intestacies within the District of Columbia, is not a question of law of "such extensive interest and operation," as that if the matter involved is not of the value of $1000 or upwards, this court will assume jurisdiction under the act of Congress of April 2d, 1816.

THE act of Congress of April 2d, 1816,† regulating appeals and writs of error from the Circuit Court of the District of Columbia to this court, limits them to cases in which the matter in dispute is of the value of $1000 or upwards. It provides, however, that if "any questions of law of such extensive interest and operation as to render the final decision of them by the Supreme Court desirable" are involved in the alleged errors of the Circuit Court, the case may be heard here, even though the matter in dispute is of less value than $1000; and any judge of the court, if he is of opinion that the questions are of such a character, may allow the writ or appeal accordingly.

With this statute in force, Campbell, by will, left legacies to his widow and several illegitimate children; but, after paying them all, a fund of $141 remained in the hands of the executor undisposed of; there being no residuary legatee named in the will, and no parents, &c., legitimate children,

* Levy v. Arredondo, 12 Peters, 218; Marine Insurance Company `v. Hodgson, 6 Cranch, 206; Mandeville v. Burt, 8 Peters, 256-7.

8 Stat. at Large, 261.

Opinion of the court.

or collateral relations, who had the right to claim it as next of kin in preference to the widow.

The widow accordingly claimed it under statute. Her claim was opposed by the executor in virtue of an act regulating such matters in the District, and which declares that "every bequest of personal estate to the wife of a testator shall be construed to be intended in bar of her share of the per sonal estate, unless it be otherwise expressed in the will."* Her right depended, therefore, upon a construction of this statute, and the point before this court was, whether this question was a question of law of such extensive interest and operation as to render the final decision of it, in a case like the present one, by this court, desirable. Under the impression that it might be, or under some misunderstanding, an allocatur had been allowed in vacation by one of the justices of this court. The printed copy of the record showed no certificate that the papers it contained were a transcript of the record, though counsel put nothing on that ground, which was supposed to be an accident only.

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Mr. Eames, for the appellant, argued that the question was of such a character as the act of Congress contemplated. It concerned the whole subject of testaments and intestacies in a large and important territory, constantly increasing in population and wealth, the seat of the Federal Government itself. The amount here, indeed, was not large, but the principle, and therefore the "question of law," was the same as if the amount was millions.

Mr. Stone, contra.

At a subsequent day, the CHIEF JUSTICE announced briefly the court's opinion, that independently of the record's not showing a proper certificate,―this itself being a sufficient ground for dismissal,—the amount in controversy was insignificant, and that the court was satisfied, on an inspection of the papers, that the allocatur was inadvertently

*Act of Maryland, 1798; Dorsey's Laws, 406.

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