Page:Federal Reporter, 1st Series, Volume 6.djvu/783

 8HAINWALD V. LEWIg. 771 �latter as a case of trust and fraud. But I submii, witu great respect, that there was mucli more in the decision than was acceded to it in Donavan v. Fin. The goods assigned in Hadden v. Spader were sold and. converted into money five months before Spader recovered bis judgment, so that there was no property on wbich bis execution oould have been a lien. It was, then, the plain case of a debtor having things in action in the bands of a tbird person, and equity deemed it unjust that either the one or the other should withhold them from the payment of his creditors. �"The doctrine of Donavan v. Fin bas not been folio wed in any case since, nor, so far as I have seen, approved by more than two judges. There is abundant evidence that it was not deemed in accordance with the decision of the highest court in Hadden v. Spader. And, aside from the books, I know from my own praotice that it was disregarded prior to the time of the Kevised Statutes. �"In the following cases the contrary was decided, or opin- ions to that effect given : In Weed v. Pierce, 9 Cow. 722-727, decided by Cbancellot Walworth, when circuit judge, sitting in equity, December, 1827; Beck v. Burdett, 1 Paige, 305, January, 1829 ; Chandler v. Pettit, Id. 427, affirmed on appeal in December, 1829, 3 Wend. 618, 621-625 ; and Edmeston y. Lyde, 1 Paige, 673, November, 1829. �"In Wakeman v. Graver, i Paige, 23, affirmed 11 Wend. 187, the bill was filed in 1828 to reach the things in action assigned, as the goods qf-Grover dt Gunn, and the decree was made against both species of property witbout discrimination, ' although the case was most desperately contested through- out. The chancellor repeated the doctrine of the above cases, at page 33 of 4 Paige; and, as reoently as in 1844, he reit- erated it in Famham v. Campbell, 10 Paige, 601. See, also, the revisers' notes, in introducing the provisions on the sub- ject, which are contained in the Kevised Statutes. 3 Eev. St. 669, (2d Ed.) �"I may, therefore, assume that by the law of this state, as settled more than 20 years before this case arose, an unsatis- fied execution crediter had a right to file a bill, in this court ��� �