Glasgow v. Sands , 3 G. & J. 96 ( 1830 )

Dorsey, J.,

delivered the opinion of the court.

By the argument in this case, two questions have been presented for our determination. First—whether the commissioners of insolvent debtors for the city and county of Baltimore, after having appointed a permanent trustee, and certified to Baltimore County Court that the applicant hath not complied with the terms and conditions of the insolvent laws, can, upon the neglect of such trustee to give the requisite bond within a reasonable time, appoint a new trustee ? Secondly; whether a chose in action of a deceased wife is vested in the trustee of her surviving husband, an insolvent petitioner ? By the act of 1816, which provides for the appointment of these commissioners of insolvency, applications for the benefit of the insolvent laws were made to Baltimore County Court, who referred them to the commissioners, who, after proceeding to the appointment, first, of a provisional, and then of a permanent trustee, were required to examine into the nature and circumstances of all such applications, and if, upon such examination, it appeared that the petitioner had complied with the terms and conditions of the insolvent laws, and had acted fairly and bona fide, they were to report the same to Baltimore County Court, “and return the schedule and all proceedings which may have been had before them, to the office of the clerk of Baltimore County Court, there to be recorded.” Under this law, the County Court were authorized to grant either a personal or final discharge to the petitioner: and jf the examination by the commissioners resulted unfavorably to the applicant, no report thereof was to be made to the County Court, nor the schedule, or any of the proceedings before the commissioners returned.

With a view to relieve Baltimore County Court from many of the duties connected with applications for releases under our insolvent laws, to which it was still subject, the Legislature passed the act of 1819, ch. 84, investing the commissioners with the power of granting personal discharges, directing all applications of insolvents to be presented to them, instead of the County Court, and transferring to them all the powers of Baltimore County Court, or the judges thereof, in relation to such application, except the granting of final discharges and trying allegations, &e. It also enjoins the commissioners, “ in case it shall appear to them that the applicant hath not complied with the terms and conditions of the insolvent laws, to certify the same to Baltimore County Court, and also to transmit to the clerk thereof, all deeds of assignment executed by any such applicant, or applicants, and all such other papers relating to the estate of such applicant or applicants, and brought before them as they may deem it proper to have preserved and recorded.” But it does not require, as in the case of their favorable report, a return of the schedule and all proceedings which may have been had before them. These, when their report is unfavorable to the applicant, remain in their custody, in order that they may comply with the injunction in the 6th sec. of the act of 1819, which declares that “when the report of the commissioners shall be unfavorable to the applicant or applicants, the said commissioners shall cause the trustee to proceed in the execution of the trust, in the same manner, and subject to the same rules, regulations, and restrictions, as if the report of the said commissioners, had been favorable to such applicant or applicants. By the 4th sec. of the act of 1805, ch. 110, which this court has said is part of the insolvent system, applicable as well to Baltimore city and county, as to the rest of the State of Maryland, the trustee before he proceeds to act, shall give bond to the State of Maryland, for the use of the creditors of the petitioning debtor, in such penalty as the County Court shall direct, and upon his “neglect to give bond as aforesaid in a reasonable time, to be judged of by the County Court,” the County Court shall appoint such person as they shall think proper, in his place, who shall give bond as aforesaid.” Upon viewing these several acts of assembly in connexion with each other, we think that the commissioners were authorized, under the circumstances in which they did so, to appoint John Sands the permanent trustee of Bailey, and to take bond from him as such. That the commissioners are invested with the power in the first instance, of appointing a permanent trustee, is obvious from the 3d sec. of the act of 1816, and the act of 1820, ch. 182 ; and by adverting to the 4th sec. of the act 1805, and the 1st and 6th sections of the act of 1819, we deem it equally clear, that they acted within the scope of their powers in making the appointment objected to in the case before us. The schedule of the petitioner in legal contemplation remained with the commissioners, and they only, perhaps, could therefore properly direct the penalty of the bond to be given by the trustee. By the act of 1819, their investiture with all the powers of Baltimore County Court, is as full and comprehensive as language could make it, and the peculiar and exclusive fitness of the commissioners for the discharge of the duty which they have assumed in this case, leaves no doubt in our minds of the legality or propriety of its exercise. Had the County Court have made the appointment, having no knowledge of the amount of debts due from or to the petitioner, or the value of his property, they would have had nothing to guide them in prescribing the penalty of the trustees’ bond, which by law, it would be their duty to direct. Against the exercise of the power by the commissioners, no solid objection has been urged. ’Tis true in this case the schedule and all the proceedings before them, were returned to the clerk of the Baltimore County Court, to be recorded. But this does not vary the general principle applicable to like cases; it was done in obedience to no mandate of the law, in contemplation of which the schedule and their proceedings were still in their custody.

In our present decision, we mean to intimate no opinion as to the power of the commissioners to make an appointment like the present, where their report to the County Court has been in favor of the insolvent debtor, and the schedule and all their proceedings returned therewith.

The second question we deem too clear to require either authority or illustration to sustain our opinion upon it. By the act of 1798, ch. 101, sub-ch. 5, sec. 8, it is enacted that “ if the intestate be a married woman, it shall not, as heretofore, be necessary for her husband to take out letters of administration, but all her choses in action shall devolve upon her husband, in the same manner as if he had taken out such letters.” Under the provision of the. act of assembly, Bailey might have collected the claim now in controversy, and have applied the same to his own use ; he was competent to release, compromise, assign or dispose of it, in any way he might see fit; and to all the purposes of this controversy, it is to be regarded in the same light as if it were a debt or chose in action, due to Bailey himself, and consequently vested in the appellee upon his giving bond as required by law. The statutory assignment of the petitioner’s estate, is of all property which he has a claim, title to, or interest in, and of all debts, rights and claims, which he has, or is in any way entitled to.

DECREE AEIURMED.