WEST PHILADELPHIA BANK

v.

DICKSON

Mr. Justice Hunt delivered; the opinion of the court.

In the ,present;action, the assignee's .-in bankruptcy of Tryon Repskiffe -Seek to .recover from the West Philadelphia Bank two different’su.ms’pf .money. The first is a sum of. $5,000 paid by Reakirt on the-sixth day of February, 1871; the., second is the sum of $4,559.76 collected by B. K. Jamieson on behalf of and for the benefit of the bank, through certain attachment proceedings in the courts of the'State of New Yo. k. The case was tried before a jury in the Circuit Court of the United States, and a verdict and judgment rendered in favor of the assignees for the amount demanded.

The sum first mentioned is claimed to belong to the assignees, on the ground that it was the payment of a debt, or the transfer of money or goods, with a view to give a fraudulent preference by an insolvent, and. where the party receiving the money had .reasonable cause to believe that the party paying the money was insolvent. ^The provisions of the thirty-fifth section of the Bankrupt Act control this branch of the case. There is n5 doubt expressed-by any party as to the insolvency of Reakirt, the debtor. His career as a speculator had terminated in forgery. His forgeries had been discovered, his money was goné, and his trust in his rich relatives unavailing. .Tlie agent and director of the' bank heard of the forgery, and was the first upon.his track; demanding security or payment, arid refused to give him even a part of a day to apply to his relatives for aid, but insisted upon an immediate transfer of his funds in bank. With the greatest pressure,- .only one-half of the debt could be obtained. Upon general principles, the case seems to fall clearly .within the provisions of the act.

The knowledge of the agent was that of the principal, and there was not only reasonable cause to believe, but clear knowledge of, the insolvency of Reakirt.

The remaining sum falls undeivthe fourteenth section of' the Bánkrupt Act, which is as follows, viz.: “As soon as the assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his.hand, assign and convey to the assignees all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto ; and such assignnient shall relate back to the commencement of the proceedings in bankruptcy, and by opei ation of law shall vest the title to all such property and estate, both real and personal, in the assignee} although the same is then attached on mesne process, as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings.” After obtaining from the bankrupt his funds in Philadelphia, the agent of the bank, Mr. Jamieson, who was also one of its' directors, went to New York, and there commenced an action in his own name, but for the benefit of the bank, against the' bankrupt, and obtained an attachment against Randolph & Co., and Evans, Wharton, & Co., bankers, with whom Reakirt,'the bankrupt-, had a credit of about $11,000.. He obtained a judgment against Reakirt for $5,176.82, and issued an execution,’ which was paid through the means of' the attachment referred to. The statute declares this attachment, if made within four months preceding the-commencement of the bankruptcy proceedings, as was this one, to be dissolved by the assignment in bankruptcy;.. It is avoided, and made of no effect, and the proceedings upder it are held for naught. The money obtained by color of it is money held for the -assignee, and is recoverable by him.

But it is contended on behalf of the bant that theunoney thus obtained-in each instance was-the money'of'the bank, that it was a case of the reclamation of its own property. If the $5,000 obtained in Philadelphia on checks had been, the identical money received from the-bank, or the fruits of that money,.or if' in any manner the'money could b'e traced' or. separated, this question might be raised. But, in fact, the debt. . had accrued to the bank, and the money-had been received from it nearly two months before the occurrences of Feb.'6, This money had -been deposited in various-banks, mixed with the other funds of Reakirt, and. 0,;used by hini at his convenience. There is-not a-pretence that the money obtained'on the' "checks was, the result of the particular transactions' with the Philadelphia bank. • Reakirt was á druggist, a manufacturer, a stock speculator, and, as has occurred in other like cases, a forger. In the last capacity-he' had. realized the sum. of $100,000. There is no evidence Where this particular money ' came from, and certainly-no presumption exists that' it came . from the West Philadelphia Bank.' The money obtained upon the New York attachment was a part, of a balance of $11,000 standing to Reakirt’s credit, with no evidence of the source '' whence' any part of it was derived. There is literally no evidencé on which to base the theory of reclamation.' Much is said' in argument oh the subject of the' rescission of the contract. The-contract- of loan was upon the note or notes of Reakirt, and in form was that of-an. ordinary loan of money. ' -He gave forged securities as collateral. .Whether this justified a rescission on the part of the bank of the entire contract, or whether the bank did rescind, we do not consider of' any importance. If -it could have identified .and followed its money, this question- .might have become practical. . But, as, there is an entire failure'of proof in that respect, the question does not arise. Judgment affirmed.