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It is made under circumstances which expose it Hawiisoic to the charge of being a fraud on the bankrupt laws.
Considered as the act of Bird, Savage & Bird, it is dated but a few days before their bankruptcy; and considered as the act of Robert Bird & Co. it is but a short time before they stopped payment, and is made at a time when there is much reason to believe, from the face of the deed, as well as from extrinsic circumstances, that such an event was in contemplation.
Money actually advanced upon the credit of this assignment, subsequent to its date, might perhaps be secured by it; but there is no evidence that any money was actually advanced upon it, and the face of the instrument itself would not encourage such an opinion. It might be caught at by those who were already creditors, but holds forth no inducements to become creditors. It was impossible for any person viewing it to judge of the sufficiency of the fund, or of the pre-existing liens on it.
This assignment, therefore, under all its circumstances, many of which are not here recited, is no bar to the claim of the United States, or of the attaching creditors.
This being the case, there exists no obstacle to the priority claimed by the United States, and their debt is to be first satisfied out of the fund to be distributed by the court.
2. The attaching creditors are next in order.
By the bankrupt law of the United States, their priority, as to the funds of the bankrupt, is lost. They can only claim a dividend with other creditors. So far, then, as the effects attached are the effects of the bankrupt, their lien is removed by the bankruptcy.
Robert Bird alone has become a bankrupt under
the laws of the United States. Consequently, only his private property and his interest in the funds of the company pass to his assignees. This interest is subject to the claim of his copartners, and if, upon a settlement of accounts, Robert Bird should appear to be the creditor or the debtor of the company, his interest would be proportionably enlarged or diminished. But he is not alleged to be either a creditor or a debtor; and of consequence, the court consider his interest as being one undivided third of the fund. This third goes to his assignees.
As the bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States, the remaining two thirds of the fund are liable to the attaching creditors, according to the legal preference obtained by their attachments.
The court thinks it equitable to order that those creditors who claim under the deed of the 31st of January, 1803, and who have not proved their debts under the commission of bankruptcy, should be now admitted to the same dividend out of the estate of the bankrupt as they would have received if, instead of relying on the deed, they had proved their debts. The assignees, therefore, take this fund subject to that equitable claim, and in making the dividend, those creditors are to receive, in the first instance, so much as will place them on an equal footing with the creditors who have proved their debts under the commission.
With respect to any surplus which may remain of the two thirds, after satisfying the United States, and the attaching creditors, it ought to be divided equally among all the creditors, so as to place them on an equal footing with each other. The dividends paid by the British assignees, and those made by the American assignees, being taken into consideration, this residuum is to be so divided between them as to produce equality between the respective creditors.
THIS was a case certified from the circuit court The court? for the district of Virginia, the judges of that court °f the United
, . , . . .° ' iJ ° • i iL States have ju
being divided in opinion upon the question whether risdiction in a they had jurisdiction of the case. ««»e between
citizens of the same state, if
It was an action en a bond given by an executor the plaintiffs for the faithful execution of his testator's will, in SJpuSti^ conformity with the statute of Virginia. The object the u»e of an of the suit was to recover a debt due from the testa- alien' tor in his life-time to a British subject. The defendant was a citizen of Virginia, The persons named in the declaration as plaintiffs were the justices of the peace for the county of Stafford, and were all citizens of Virginia.
The question being submitted without argument,
The Court ordered it to be certified, as their opinion, that the court below has jurisdiction in the case.
HODGSQN AND THOMPSON v. BOWERBANK
ERROR to the circuit court for the district of Although the Maryland. The defendants below were described J'^jf ;be |£ in the record as "late of the district of Maryland, proceedings as merchants" but were not stated to be citizens of the ^ dTet state of Maryland. The plaintiffs were described as nmst be ex"aliens and subjects of the king of the united king- pressly stated dom of Great Britain and Ireland." of b8eome"'one
of the United
Martin contended, that the courts of the United l^thec^"
Hodgson States had not jurisdiction, it not being stated that v the defendants were citizens of any state.
of the United C Lee, contra. The judiciary act gives jurisdic8t«es havenot tion to the circuit courts in all suits in which an the'cue."11 m olicn is a party. Laws U- S. vol. 1. p. 55. § 11.
Marshall, Ch. J. Turn to the article of the constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the constitution.
(The words of the constitution were found to be "between a state, or the citizens thereof, and foreign states, citizens, or subjects.")
The court said the objection was fatal.
The record was afterwards amended by consent.
KEENE v. THE UNITED STATES.
The trial of ERROR to the circuit court of the district of th'e act* crfthe Columbia, in a case of seizure of certain merchani8th February, dise, being part of the cargo of the schooner Sea ro?Un "amMi ^ower, Matthew Keene, claimant, imported from censiifg^ships the Havanna, in the island of Cuba, into the port of or vessels to be Vienna, in the district of Maryland, the vessel having theP "coasting sailed on a foreign ^voyage under a coasting license, trade and fish- The goods having been landed at Vienna, were transrouhting the ported to Alexandria, in the district of Columbia, same," is to be where they were seized by the collector of that port, districtiua,<!k and libelled and condemned in the district court of which the seiz- that district, whose sentence was affirmed by the cir
«re was made; cuit t
where the for- Swann and Martin, for the plaintiff in error, con*<»■•**. tended,
That there was no law which authorized the seizure, or the trial and condemnation out of the district keem into which the goods had been first imported, The U. S.
The goods Were condemned under the 8th section of the act of congress, "for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating, the same," passed February 18, 1793, vol. 2. p. 174. which enacts, "that if any ship or vessel, enrolled or licensed as aforesaid, shall proceed on a foreign voyage without first giving up her enrolment and license to the collector of the district comprehending the port from which she is about to proceed on such foreign voyage, and being duly registered by such collector, every such ship or vessel, together with her tackle, apparel and furniture, and the goods, wares and merchandise so imported therein, shall be liable to seizure and forfeiture."
By this act the forfeiture arises upon importation. The importation was complete at Vienna, in the district of Maryland, where only the trial can be lawr fully had.
By the 35th section of the act, it is enacted, "that all penalties and forfeitures which shall be incurred by virtue arid force of this act, shall and may be gued for, prosecuted and recovered in like manner as penalties and forfeitures incurred by virtue of the act entitled 'An act to regulate the collection of the duties imposed by law on goods, wares and merchandise, imported into the United States, and on the tonnage of ships or vessels,' may be sued for, prosecuted and recovered, and shall be appropriated in like manner.1'
There is no act in the statute book with such a title. The only act then in force regulating the collection of duties on goods imported, and on tonnage, was the act of August 4, 1790, entitled "An act to provide more effectually for the collection of the duties imposed by law on goods, wares and mer* Yol. v. Q q