# McLaughlin v. Swann

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United States Supreme Court
59 U.S. 217
McLaughlin v. Swann
THIS case was brought up by writ of error from the circuit court of the United States, for the District of Maryland.
The case is stated in the opinion of the court.
The instructions given by the circuit court to the jury, and which were excepted to by the plaintiff, were as follows:--
And the court directed the jury that the plaintiff was not entitled to recover, and their verdict must be for the defendants:
1. Because the rights of the parties claiming as cestui que trusts, under the deed of April 15, 1840, and the rights of those claiming an interest in the surplus after the cestui que trusts are satisfied, cannot be adjusted and determined in the proceeding by attachment against the trustees in a court of law, and there is no evidence that any specified sum ascertained by the accounts of the trustees, or by judicial decision, was due to the Chesapeake and Ohio Canal Company at the time this attachment was laid, or at any time since, after satisfying all legal or equitable claims on the fund placed in the hands of the trustees.
2. Because there is no evidence that anything remained in the hands of the trustees, after satisfying the trust mentioned in the deed, more than sufficient to satisfy the claim of the Alexandria Canal Company and others, having prior and superior claims on the fund to the plaintiff in this attachment.
3. The plaintiff having become a party to the proceedings in the chancery court of Maryland, in the suit in which this fund was in litigation, and the trustees in the fund being all before the court, he is concluded by its decision while the decree remains in force.
It was argued in this court by Mr. Davis, for the plaintiff in error, and by Mr. Campbell, for the defendants.
Mr. Davis made the following points:--
1. That under the circumstance of this case, the process of attachment was a proper process to reach, and affect any surplus in the hands of the trustees remaining after gratifying the trusts of the deed, and not needed to satisfy the demands of others having prior and superior claims on the fund.
2. That there was evidence of a large surplus existing in the hands of the trustees, after satisfying the trusts of the deed, the claim of the Bank of Potomac, and all others superior and prior to the claim of the present plaintiff.
3. That the decree of the court of chancery of Maryland alluded to, cannot prejudice the plaintiff's right to recover, if it can be shown that at the time of passing the decree, the trustees had in hand a surplus, which was liable to be affected by process of attachment.
Under the first head he cited 5 Har. & John. 312-5; 3 Har. & McH. 535, and maintained that every equitable interest in Maryland, except a trust in process of execution, is liable to be attached under the act of 1715. See act of 1831, c. 321, which is a declaratory act.
The trust had expired in this case, and an action for money had and received could have been maintained against the trustees.
Mr. Campbell contended, that when the attachment was issued, the whole surplus was in controversy between the Chesapeake Bank and the Bank of Potomac.
How could the court below settle the conflict between these rival claimants, neither of them before it, or weigh in legal scales their respective equities?
Case v. Roberts, 3 Eng. Comm. Law, 172. The action for money had and received, must not be turned into a bill of equity for the purpose of discovery. While the matter remains in account and is charged with the specific trust, the action for money had and received will not lie. Roper v. Holland, 30 Eng. Comm. Law, 37; Edwards v. Bates, 49 Ib. 598; Pardoe v. Price, 13 Mees. & Welsby, 282, 283; Bartlett v. Dimmond, 14 Ib. 49; Tiernan v. Jackson, 5 Pet. 597; Duvall v. Craig, 2 Wheat. 56; Rathbone v. Stocking, 2 Barb. Sup. Ct. R. 135, and the cases referred to in the court's opinion.
The second instruction of the circuit court was correct, for the evidence showed that the surplus, after the redemption of the script, was all claimed by the Bank of Potomac and Chesapeake Bank.
McLaughlin was made a party to the proceeding in chancery and answered. The reservation avails nothing under the circumstances. This cause began in 1841, and was continued from term to term till 1851. He might have claimed the surplus in chancery. If he did not choose to assert his rights the decree must bind him.
Mr. Justice CURTIS delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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