The opinion of the court was delivered by
Porter, J.— The cases stated place three things beyond dispute : 1. That the effort is to tax only the bills receivable held by the assignee. 2. That by law these bills are payable in the ordinary notes of the bank. 3. That the assets are insufficient to discharge the liabilities of the corporation. In other words, after every means shall have been employed to collect the property now assessed, notes of the bank to some amount will remain unpaid in whole or in part. It is not certain that the latter will be paid to the extent of the one dollar and forty cents on the hundred dollars mentioned in the cases stated. Estates have been assigned which did not pay one per cent., and the average dividend of some of the estates transferred under the National Bankrupt Act did not exceed six per cent. A few repetitions of the tax, under such circumstances, would sweep off the estate, and give the Commonwealth everything and the creditors nothing — a division so unequal as to show that there must be something wrong in the legal machinery which may produce it.
Suppose no assignment had been made, and, on judgments obtained by the noteholders, attachments had been levied at the same moment on the property of this bank. The garnishee would have occupied, in the eye of the law, much the same position as that held by the present defendant; for he would have been liable to distribute it pro rata among the attaching creditors. Take the case of executions placed in the sheriff’s hands, the property sold and the money realized, for this is the alternative when an assignment has not been made. Here again, we have an officer of the law who has collected and is holding money payable to creditors in a manner which the law has appointed. Go one step further, by assuming the money to be paid into court, and the similarity between the duties of the prothonotary and that of a voluntary assignee becomes closer; for indeed, the court has more power respecting the appointment and discharge of the assignee than of its own clerk; and the authority of its decrees over both is at least equal. Formerly, it was common under the insolvent laws for the court to appoint the assignee of an insolvent debtor, and the assignee proceeded under this appointment to collect and distribute the debtor’s property. Scarcely a term now passes in which the prothonotary does not act as the trustee of litigant parties by receiving money paid into *536court by its order after a plea of tender. The legal attitudes of these various parties, however different their duties, are not very dissimilar. By the direction or permission of the law, they receive the property of one class and pay it to another under prescribed rules. They thus do for the’ parties that which, from the necessity of the case, the parties cannot do for themselves. They do for the creditors of a living man, what the administrator does for those of his intestate. In a word, they are agents necessarily intrusted for a time with the collection of property which somebody owns, which others claim, and which can be distributed only when the rights of all have been determined.
But what of the Act of 22d April 1846 ? Cannot property held m trust be taxed ? Certainly. Property which is to be held under a deed, or a will, or in any other mode embodying an arrangement necessarily permanent between private parties for their own benefit, ought to bear its share of the public burdens. Here is a subject-matter for the statute to operate upon, and here it ought to stop. It does not necessarily embrace property which the law has taken into its own hands, simply to collect, and then to distribute, and of which it has designated the temporary stakeholders or trustees for the better accomplishment of its work. In the absence of a decision or practice to that effect, we see no more propriety in embarrassing these officers with the duty of paying taxes, except where the law has by express and definite terms cast it upon them, than in taxing the money which passes through the hands of a sheriff or constable, a prothonotary or garnishee. If the property be taxable, let the tax be collected from the creditors who really own it; and if its value be too uncertain for that, this fact only increases the injustice of taxing it in the hands of the officer of the law. The limit of the present decision will, however, be found in the three considerations with which it set out.
Judgments reversed and judgments for the defendant in both cases.