United States v. President of the Bank of the United States

8 Rob. 262 | La. | 1844

Garland, J«

In this court the case has not only been fully and ably argued by the counsel for the United States, and the assignees, but we have been furnished with a very ingenious and well considered argument in writing, from a gentleman understood to represent a number of other attaching creditors, not now before us, but whose interests are the same with the United States, except in the question of priority or preference claimed. Our attention has been directed not only to the law and decisions of the.courts in England and in the various States of the Union, but to our own jurisprudence in relation to assignments or transfers of property in trust for the payment of debts, and conveyances made to defraud, delay, or hinder creditors in collecting debts. The decisions in different courts have been various and sometimes apparently contradictory, and the attempt to reconcile them, together with the extent of the ground covered by the discussion, and the points actually necessary to be decided, has made the investigation of the case tedious and protracted. To state all the decisions in detail, and to point out their coincidences, and their occasional apparent contradictions, the consequence generally, of a change in circumstances, would be a task more laborious and tedious than useful or necessary, in coming to a proper conclusion in this case; and the work of condensing and adapting the proper principles on which to place it, would be hut little less so.

In every civilized nation, and particularly in those of a commercial character, the laws and the decisions of the judicial tribunals have uniformly been directed against every act of a debtor, fraudulent in itself, or calculated to injure or improperly delay a creditor in collecting his just demands. In England previous to the enactment of 13 Eliz. chap. 5, commonly called the statute of frauds, the courts, acting upon the principles of the common law, always went as far as they could in extending their jurisdiction, and the remedies they were authorized to apply, for the-suppression of all frauds and conveyances, by which creditors would be injured, and the property of debtors protected. Since that statute has been made, the courts in England, with the same view, have always given it a liberal construction. In all the States of the Union, in which the common law forms the basis of their jurisprudence, and in those in which statutes nearly similar have been adopted, the same liberal construction has been given. Before, and ever since the well known case of Twyne, (3 Coke’s Rep. 87,) this principle has been well understood. Cadogan v. Kennett, Cowper’s Rep. 434. But it was not the object of the statute of 13th Eliz. to invalidate a fair and bona fide transaction, (1 Bin-ney’s Rep. 514;) and it is not every conveyance that has the effect of delaying or hindering creditors, that is in itself fraudulent. In some degree, it is the effect of every assignment of a debtor’s property for the benefit of creditors, to produce hinderance and delay; but the Supreme Court of the United States, in the case of Sexton v. Wheaton, (8 Wheat. Rep. 229,) said, that the assignment must be devised of “ malice, fraud, covin, collusion, or guile” to bring it within the statute; and, in England, the same doctrine is established. 4 East, 13,

In this State, where our legislation and courts are particularly vigilant in guarding against all manner of devices by which creditors are to be defrauded or seriously injured, and the debtor benefited at their expense, or his property protected, the doctrine is well settled, that fraud is not to be presumed ; that the law has established certain indicia or marks, by which it shall be known ; and that every case must depend upon its own circumstances. 10 Mart. 436. 2 La. 309. 14 La. 184.

Roberts in his Treatise on Frauds, says, with respect to such conveyances or assignments as are taken by a creditor or creditors from a debtor, by way of security or satisfaction, that there can be no doubt, that they are prima facie good within the statute of 13th Eliz. (pp. 189,436 ;) and Chancellor Kent says, a conveyance to pay debts is valid; and that that purpose forms a good consideration. 2 Johns. Oh. Rep. 182.

In England, the instances of assignments by debtors, for the benefit of creditors, of a part or the whole of their property, are comparatively rare, as in so commercial a country it might be supposed they would frequently be made; but as there is a bankrupt law in force, these assignments are not regarded with much favor when they establish a mode of payment different from it, or give preferences in violation of the general law. The courts consider such acts more as a fraud upon the law than upon individual creditors, and frequently disregard them ; but when the assignments are general of all the property, for the benefit of all the creditors, and possession is taken by the trustees or assignees, the courts manifest a strong disposition to support them. In the case of Pichstock v. Lyster, (3 Maule & Selwyn, 371,) the object of the conveyance was to prevent a creditor about to obtain a judgment, from satisfying it on execution. The debtor was insolvent, and pending the suit, executed an assignment to trustees of all his effects, for the benefit of all his creditors, and they took possession. Lord Ellenborough said, that the assignment was more an act of duty than of fraud, and that it arose out of the moral duties of the debtor, to make the fund available for all the creditors. Justice Bailey said, he assented fully to the doctrine, and that the conveyance, so far from being fraudulent was the most honest act the party could perform; and there was nothing new in this doctrine. 5 Term Rep. 235,420. 8 Term Rep. 528. 4 East, 1. Opinion of Judge Story, in 4 Mason's Rep. 206. In this State, our citizens and tribunals, acting upon the broad principle laid down in that article of the Code which declares all the property of the debtor the common pledge of his creditors, have always been jealous of every conveyance or transaction calculated to defraud creditors, or give an unjust preference to one class over another; yet there are oases in which our Legislature seems to regard a particular kind of obligation, or engagements of a chirographic nature, as entitled to some favor, such as endorsements, for the security of which, both present and future, a mortgage may be given, although no actual obligation has been incurred; and also, payments made on the eve of insolvency in the ordinary course of business. Our laws in relation to the cession of property, afford to debtors such facilities in giving up their property for the benefit of creditors, that there is little or no inducement to make assignments; and it is not probable that we-shall often be called on to act on any but those made in other States.

The general power to assign property to trustees for the benefit of creditors, has, in various States of the confederacy, been recognized and approved in the fullest manner, by both State and Federal tribunals. The Supreme Court of the United States.in the case of Brashear v. West, 7 Peters’ Rep. 608, declared that an assignment of all the property of a debtor, is not, per se, fraudulent, and that the right to make it results from the absolute ownership which every man claims over that to which he has a title, and of which he has possession. Cfioses in notion can be assigned as well as property susceptible of, and actually'reduced to possession; and courts of equity, in a commercial country, will, in consideration of the amount of property necessarily lying in contracts, protect the assignment, as much as courts of law will that of a chose in possession. 1 Haddock’s Chancery, 546, There need not be any actual consideration given by the trustee, as the debts constitute a consideration ; and the obligation of the trustee to perform the trust, is a sufficient consideration as to him. 4 Mason’s C. C. Rep. 206. 10 Pick. Rep. 413. 7 Wheaton, 556. 11 Ibid. 78.

The principle is also well settled, that when the trust gives no authority to the trustee to give a preference, he cannot do it; but it is equally well settled, that a debtor, whether in failing circumstances or not, may dispose of his property for the use of his creditors, and may prefer one to another in the assignment. Hopkins’ Ch. Rep. 373. 7 Modern Rep. 139. 5 Term Rep. 235, 420. 7 Taunton’s Rep. 149. In the United Stales it is a very common practice; and the authorities are very numerous in Massachusetts, New York, Pennsylvania and other states. 5 Mass. Rep. 42,144. 12 Ibid. 140. 15 Ibid. 233. 16 Ibid. 275. 11 Pick. Rep. 829. 5 Johns. Rep. 412, 335. 2 Johns. Ch. Rep. 283. 1 Binney’s Rep. 414. 17 Serg. & Rawle, 250. Wallace’s (Penn.) Rep. 21. 6 Cowen’s Rep. 233. 7 Greenleaf, 241. 5 New Hamp. Rep. 113¡ And there are many other cases. For decisions of the Supreme Court of the United States, see 7 Wheaton’s Rep. 565 ; 11 Ibid. 78 ; 4 Dallas, 76 ; 7 Peters’ Rep. 608.

It is not denied in the argument that, in Pennsylvania, where the deeds under consideration were executed, both partial and general assignments may be executed for the benefit of creditors, and preferences given; and we see from a copy of a statute given in evidence, that there is a law in that State, the purpose of which is, not so much to regulate the manner of making these assignments or creating these trusts, as to provide for the proper execution or administration of them. The power seems to have been admitted by the Legislature, and the object of legislation was to prevent any abuses by the trustees, in carrying the powers conferred into effect.

By art. 10 of the Civil Code, and by art. 13 of the Code of Practice, we are expressly told, that contracts are to be governed by the law of the place where they are entered into; but that the form and effect of the actions instituted to enforce them, must be governed by the law of the place where they are instituted. Our jurisprudence has been in conformity to these principles, and is too well established to need the citation of authorities. It results from these articles, that" if the deeds of assignment relied on by the intervenors are good and valid in Pennsylvania, and convey the property included in them in that State, then they will convey it here, unless there is something in our attachment laws to prevent it, or unless some preference has been acquired by the non-delivery of the property.

We will now proceed to examine into the validity of the deeds of the 7th of June, and 4th and 6th of September, 1841, according to the laws of Pennsylvania. That the assignment made on the 1st of May of that year to Dundas and others, of a large amount of the assets and property belonging to the bank, is good and valid, has been settled by the highest, judicial tribunal of the State, in the case of Dana v. Bank of the United States, 5 Watts & Serg. 223. The opinion of the court in that case, is based on the powers granted by the charter to the corporation, and on the general laws of the State; from which it would follow, that the subsequent assignments are also legal and valid, unless the charter has in some manner been violated, or the other laws of the State infringed by the proceedings of the stockholders, or the action of the directors of the corporation. It has been decided by the highest judicial tribunal in the State of Connecticut, that a corporate body is as competent to make an assignment for the benefit of creditors, as a natural person, and to give a preference to one creditor over another, even after insolvency. It may, like individuals, discriminate, and stipulate in favor of a meritorious creditor. 6 Conn. Rep. 233. 8 Ibid. 605. The same principle has been recognized in two cases in Maryland. 6 Gill & Johns. 363, 206. It was there held, in the first of these cases, that the directors of the Bank of Maryland had fulL power to provide for tfie payment of the debts of the institution, by executing a deed conveying all the property of the bank in trust for that purpose. In the second case it was held, than an individual in failing circumstances might prefer one creditor to another, by a transfer of property made in good faith, and that a corporation. might do the same. These cases are quoted with approbation by the Supreme Court of Pennsylvania, in the case of Dana v. The Bank of the United States. After stating the principles established in the cases in Connecticut and Maryland, the court, in the case of Dana, proceed to say, “ All that is said here in respect to what a corporation may do, is peculiarly applicable to a corporation created for the purposes of trading and banking, where the business consists chiefly of buying and selling bills of exchange, and drafts or checks, and in discounting bills or notes, by means whereof, it either becomes a creditor or debtor, which makes it necessary for it to attend to the payment and receipt of all debts created in the course of such dealing as they shall fall due. Hence the very object and design for which such a corporation is established, renders it indispensably necessary that it should have as complete and absolute a right, at all times to dispose of and transfer its property and effects, for the purpose of paying, or securing the payment of its debts; or of giving, as has been done in this instance, a part of its property and effects to secure the payment of certain debts only, as any individual or mercantile company has or have.' Hence the Bank of the United States, in this case, if it had not had any express power granted to it by the act of its incorporation, to dispose of and assign its property for the purpose of securing and making payment of its debts, either in part or in whole, as the occasion might seem h> require/in the judgment of the board of directors, would have had such power, by necessary implication, from the very nature of its business, unless it were expressly restrained by its act of incorporation, which is not alleged or pretended.

“ Seeing, then, that the Bank of the United States was invested with full power to do all that was done, or intended to be done in this case, and that it necessarily appertained to the management of the affairs of the bank, it follows as an inevitable consequence, as has been clearly shown, that it belonged to the president and directors, and to them alone, to do it, as also to determine on the propriety of its being done.”

This language is plain and does not need comment, as to the power to make the assignment, or trust, of the 1st of May, 1841; and, in another part of the opinion, the court say, that the assent of the stockholders was not necessary, as the directors could assign without it, or in opposition to their will.. If this be true, and we do not feel authorized to decide otherwise, is not the doctrine as applicable to the last trusts as to the first? It certainly is ; and we must look further for some violation of the laws of Pennsylvania, which will invalidate the deeds before us.

The counsel urge the want of assent of the stockholders to the trust, and that the directors had no right to dispose of all the property, so as to dissolve the corporation. As to the legal part of this argument, it is met by the reasoning in the case of Dana ; and as to the matter of fact, we think it is sufficiently shown, that the stockholders did assent. The resolutions passed at the meetings in April,, 1841, and on the 4th of May following, in our opinion, fully’expressed their assent to making assignments for the purpose of protecting and paying the post-notes, circulation and deposits of the bank ; but if there remained a doubt, it was removed by the resolution passed on the 18th May, 1841, authorizing the board of directors to act as they might think most discreet, and most beneficial for the institution.

But say the counsel for the appellees, the board of directors had no power to dissolve the corporation, by transferring all the property. Admitting that such would be the effect of an assignment of all the property, which it is not necessary to decide, what difference does it make, under the circumstances of the case? The bank, it is said, was hopelessly insolvent; numerous suits were pending against it; on the judgments rendered, or about to be given, executions would have issued, and the whole property would probably have been sacrificed, and the corporation left without a dollar, and thereby dissolved. The result of either measure, according to the counsel for the plaintiffs, would be the same. Had the directors remained quiet, and permitted all the property and assets of the bank to be seized and sold, the charter would have ceased to exist, according to the argument; and the assignment has no other effect.

The counsel for the plaintiffs further urge; that the assignments .of dune 7tb, and of the 4th and 6th of September, are not made iu conformity to the laws of Pennsylvania, and that the interve-nors have not complied with the provisions of those laws, by filing an inventory of the assets conveyed, and by giving security as required. As to the general power to make an assignment, it is needless to repeat what has been said in Dana’s case; we shall, therefore, only look to the statutes of Pennsylvania, to see what else was necessary to be done in the premises, that has been omitted, and what may lawfully be dispensed with. The general law in relation to assignees for the benefit of creditors, passed in 1836, requires in every case of a voluntary assignment of real or personal property, whether general or partial, that an inventory of the property so assigned shall he filed by the assignee or assignees, within thirty days after the execution thereof, in the Court of Common Pleas of the county, together with the affidavit of such assignees, that the same is a full and fair inventory of such estate and effects ; and the said court is authorized to appoint appraisers to make said inventory, &c., who shall be sworn to discharge their duties faithfully, &c. The assignees, as sooni as said appraisement and inventory are made, are also bound to give bond and security for their' faithful administration of said estate. These various requisites Ire fully set forth in the extracts we have made in the previous part of this opinion. It will be recollected, that with the assignment of the 7th of June, an inventory of the assets assigned was made and formed a part of it. With the other two assignments no inventory was ever made; .nor, in either case, were bond and security given, as required by the law of 1836. The counsel for the intervenors contend, that the acts of the Legislature of the 4th and 5th of May, 1841, dispensed them from the necessity of making this inventory, and of giving the bond and security : and this brings us to an examination of those acts. They are fully set forth in the statement made of this case, and it will be seen are somewhat confused, and bear marks of that hasty legislation, which not unfrequently occurs near the close of a session. By reference to the proceedings of the board of directors of the bank, which are in evidence, it appears that it was not their purpose, in applying to the Legislature, to obtain the passage of such a law as was enacted. Their object was simply, in case of any assignment made, to, dispense the assignees from the obligation of making and filing an inventory and giving security .as required by the law of 1836. But the Legislature seem disposed to go further, and provide for another contingency, which it was supposed might occur, in consequence of the provisions contained in the seventeenth section of the act of the 4th of May, 1841, being rejected ; and, therefore, provided a mode by which the bank might go into liquidation, if the stockholders should decide it advisable, and, if not, then the original prayer of the board of directors was intended to be granted. The eighteenth section of the act only speaks of a general assignment, and of what is to be done in case it is ordered ; and the first part of the nineteenth section, relates to the same subject; but when we come to the latter part of the section, it is evident, that the Legislature intended to do something else, and to provide for something else, otherwise it would have been unnecessary to have dispenséd with the inventory and security “ in case of any assignment or deed of trust, or other conveyance, which may be made by the President, Directors and Company of the Bank of the United States, for securing the payment of any portion of its liabilities.” These words, with a repetition of them in the twentieth section of the act, clearly show, that a dispensation was meant as well in a particular assignment as in a general one. This construction of the law is sanctioned by the opinions of legal men of high standing, whose evidence has been taken, and opinions asked. The directors of the bank, after the passage of these laws, asked the advice of counsel as to their meaning, and were assured that they dispensed with the inventory and security. To us these provisions appear either to do that, or to mean nothing, which we cannot suppose. We are not at liberty to presume that the Legislature of Pennsylvania intended to do an idle and unnecessary thing, nor to limit the dispensation to a case of general assignment, when they say it shall apply to any that may be made “ for securing the payment of any portion” of the liabilities of the bank. If our views of these statutes be correct, and we believe they are sound, then all the objections of the plaintiffs to the deeds, arising from a non-compliance with the provisions of the general law, are disposed of; and also some of those which go to establish a legal fraud, as the proposed assignments were made known to the Legislature, and in some degree received their sanction.

As to any fraud, in the moral acceptation of the term, we see none in the making of these assignments. The bank was insolvent, or at least very much embarrassed ; its creditors were pressing for the payment of their debts ; some of them, the managers of the institution felt, were more entitled to consideration than others, and the law of their State authorized them to think so; and we do not see anything wrong, in the bank’s first providing security for those who were willing to aid it in its abortive attempt to resume specie payments, and in securing those who held its notes as money or currency, or who, relying upon its good faith, deposited their funds in their vaults. Our own Legislature have shown that they consider debts of that nature entitled to some favor. See Acts of 1843, p. 56, et seq. Nor do we believe, these assignments void, under the statute of the 13 Elizabeth, ch. 5, which it is said is in force in Pennsylvania, as being calculated to hinder or defraud the creditors in collecting their debts. The laws of that State sanction acts of this kind, and have provided means to have such assignments enforced by the courts, and process to compel the assignees to execute the trusts confided to them. Preferences among creditors are allowed; and when the directors of the bank saw it was ruined, and its property and assets about to be sacrificed, we think, with Lord Ellenborough, that the assignment was more an act of duty than a fraud. The notes of the bank were scattered over the whole country, in the hands of the rich and the poor; they circulated as money, and the directors were bound to protect them from depreciation, if possible. It was the “ most honest act the party could do.”

In the course-of the argument, it has been urged with great zeal, by all the counsel for the plaintiffs, that too much authority has been given to the assignees, and that they are irresponsible to the creditors for whose benefit the assignment is made. This does not appear to us a serious objection, as we are of opinion, that all the laws of Pennsylvania are in full force, to compel the assignees to do their duty, and to distribute the funds among those entitled to them. No part of the act of 1836, relative to assignees, is repealed or dispensed with, except as to the inventory and security; and if any assignee abuses the trust confided to him, he is liable to be removed, and condemned to pay over all he has in his hands.

Another fertile source of complaint is, that clause of the June assignment which directs that the trustees, before making a dividend, shall give at least thirty days notice of their intention to do so in two newspapers in Philadelphia, and requiring the party to prove his debt before he is entitled to a dividend ; and further, the fact that no time is fixed when the trdst shall terminate. It seems to us, that the counsel have very much mistaken this clause of the deed. We see nothing unreasonable, in requiring thirty days notice of an intended dividend to be given, and a call to be made upon all entitled to receive it to come forward and present their demands for approval and payment. It is possible that the time may not be long enough, to enable all to present themselves at once ; but any delay in doing so does the party'n'o injury, as he is entitled to a full share out of a subsequent dividend, being first paid a full proportion of the first sum divided, nor do we see any hardship in requiring the creditors of the bank to prove their demands, if required. It is what all creditors are bound to do. whether their demands be against a bank or an individual. If the evidence is not satisfactory to the assignees, the courts of the State are open to the parties aggrieved. As to the time the trust is to close, the deed says, that when the final dividend is made it shall terminate; but if any one then remains unpaid, the bank, by the last clause of the deed, is still liable.

Another objection is, that the creditors have not accepted these trusts or assignments made for their benefit. It is apparent that they have not done so, on the face of the deeds ; but it may be done in other modes; first, by claiming the benefit of them; and secondly, it is presumed, when it is shown that the assignment is for the benefit of the creditors, and that there is a competent grantor and trustee. The title to the property passes by such a conveyance, and vests in the trustee subject to the purposes for which it was conveyed. 4 Mason’s Rep. 206. 11 Wend. 248. 4 Johns. Ch, Rep. 529. 4 Mason’s Rep. 183. 2 Gallison’s Rep. 557. 2 Conn. Rep. 579, 633. There are no conditions in the assignment that the creditors shall release their debts, nor any thing calculated to delay them unreasonably.

It is urged, that there was no delivery of the property and assets assigned, and that, therefore, it was subject to attachment. As to the property in this State, the evidence of delivery is most satisfactory. It consists principally of debts owing by various persons, and the' evidences of those debts were in the hands of Frazier, an agent, in the spring or summer of 1841. He carried all those papers to Philadelphia; they were delivered to the assignees by the bank, and again by them delivered to the witness, Frazier, as their agent, who returned with them to this State, in the autumn of that year, and took possession of such other evidences of debt as remained; and, when the attachment was levied, all the property was in the hands of the agents of the intervenors. We do not know of a more conclusive mode of giving possession of a debt, than by delivering the evidence of it. In some cases notice to the debtor is required to be given, but not always. In cases of transfer of bills of exchange and notes payable to order, no notice is necessary previous to maturity; nor is it afterwards, except for the purpose of preventing the parties bound from acquiring equities against the holder, to which they might be entitled if not notified. In stating' the evidence in relation to delivery and notice of transfer, the manner is set forth, and we repeat, it is satisfactory to us. It is not pretended that the Bank of the United States remained in possession of any of the property conveyed, after the assignment, nor has it exercised any control over the assignees, or their agents, so far as we are informed. There are none of the badges of fraud attending this transaction, which, according to the best authorities, indicate it. In Pennsylvania it appears clear that the delivery was sufficient. See Dana’s case and 1 Binney’s Rep. 502.

It is next maintained, that assignments, or transfers, made in Pennsylvania, so as to affect creditors, of property in this State, can only be made according to the laws of this State, and subject to the restrictions prescribed by those laws. In considering this proposition, it is first to be understood, that this is a Pennsylvania contract, made in thatState; and, as between the bank and the assignees, and the latter and the creditors for whose benefit it was intended, to be executed there. None of the funds are to be distributed here • our laws have nothing to do with them; nor is any citizen of our State, so far as we know, a party to the contract, or in any way tobe injured or benefited as'a creditor. Our people are the debtors ; and, as to them, it is immaterial who gets the money, when their debts are discharged. The parties complaining have all, we believe, abandoned the courts of Pennsylvania, where they commenced the prosecution of their demands, and where their debtor resided, and have come to claim of our citizens the debts they owe, and as soon as they can be collected the amount will be withdrawn from among us.

As a general rule, we believe if1 may now be considered as settled in the IJnited States, that an assignment under a bankrupt law of a foreign country, does not operate as a transfer of a bankrupt’s property in them. Story’s Confl. of Laws, §§ 410, 411. 2 Kent’s Com. 404-408, 3d edit.; and the authorities cited by those writers. But there is a distinction between an assignment under a bankrupt law, and a voluntary assignment made by the owner residing in a foreign country. In one case, the transfer is by the operation of the law of a foreign country; in the other, it is the act of the party. 6 Pick. Rep. 286. Story’s Confl. of Laws, §§ 410, 411. 2 Mart. N. S. 93, 97. 6 Binney’s Rep. 353.

The law is otherwise in England, and, we believe, on some portions of the continent of Europe; but the doctrine is well established in this country. In a few of the States it has been held, that a transfer by assignment does not protect the property from attachment, subsequently to the bankruptcy or insolvency; but that, we think, a harsh interpretation of the law, and we shall certainly not extend it to any one not a citizen of our own State.

We consider the doctrine as well settled now, that personal property has no locality, and that the laws of the owner’s domi-cil should, in all cases, determine the validity of the transfer or alienation, unless there is some positive or customary law of this country to the contrary. Story’s Confl. of Laws, § 383, et seq.

This being the case, and considering the transfer and assignment made in Pennsylvania legal, and sufficient to transfer the property situated here, we are of opinion, that it should be decreed to belong to the intervenors.

The counsel for the appellees have called our attention to a variety of decisions made by this court, in opposition to assignments made in other States. The first is that of Fellowes v. The Commercial and Railroad Bank of Vicksburg, 6 Robinson, 246, in which we held the assignment as null, against an attaching non-resident creditor. The reasons for that decision are fully stated in it. The assignment, under which the intervenors claimed, was not shown to have been valid under the laws of Mississippi; and besides, the principal object of the pretended assignment was, not for the benefit of creditors, but first to complete the rail-road, which was not assigned at all, although it appeared to be the most valuable property owned by the corporation.

The next case is that of Beirne & Burnside v. Patten and others, 17 La. 589. The plaintiffs were citizens of this State, and the debts contracted in it. Under those circumstances, and it not being shown that the assignment to Yaulx & Butler was good in Tennessee, where it was made, and it being doubtful whether the property was in the State at the time of the assignment, this court followed a decision made in the case of Ingraham v. Geyer, in Massachusetts, (13 Mass. Rep. 146,) in which it was held, that, as it was not certain whether the property had been delivered to the assignee, the attachment was good. The case of Olivier v. Townes, in this court, (2 Mart. N. S. 93,) turned upon the same point; the delivery of the ship attached not being considered perfect. That has always been considered, in our tribunals, the pivot on which these cases turn.

The last question is, as to the preference or priority claimed by the United States, under the acts of Congress, which, in cases of insolvency, and where a general assignment of all the property has been made, give a right of priority to debts due them. 2 Laws U. S. 595, § 5. 3 lb. 197. The Supreme Court of the United States, in various cases, have passed on these provisions, and have said, that there must be an actual insolvency, though not a declared one, and that the assignment must be general; but that a party by assigning all his property by different acts, cannot thus, under the pretext of the assignments being partial, defeat this right of priority. 3 Cranch, 61.

In this case, the judge of the Commercial Court, thought that the bank was insolvent at the time the assignments in question were made, and that all of them should be considered as one, and that the priority existed. In this, we think the judge did not err. The evidence shows, that the bank was insolvent at the time the deeds in question were passed; and we also think, that it establishes an intention to make further assignments, if those already made should not be sufficient to satisfy the creditors intended to be secured. „

Besides, this view of the case is sustained by the conditions upon which the defendants accepted the transfer of the property and assets from the old Bank of the United States. It was a trust on the part of the new bank, and we cannot permit them to defeat it, by making an assignment of their property.

Judgment affirmed.