M'Lean v. Rankin

3 Johns. 369

• Court: New York Supreme Court
• Decided: August 15, 1808
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The plaintiff having, as surety for Oliver Bancker, in a bond to the United States, for the payment of duties, paid the same, is entitled to the same right of preference as the United States.

The plaintiff’s claim is founded on these facts, that Bancker being insolvent, has made a voluntary assignment of his property, for the benefit of his creditors, to the defendants, who have received from the proceeds of the sales thereof, sufficient t® pay the plaintiff his demand.

The evidence is loose as to the time of Bancker's insolvency, as well as respecting the fact of insolvency itself; but if it be admitted that he was insolvent at the time of the shipment of the merchandise to the defendants, there is still an insuperable difficulty to the plaintiff’s recovery. It does not appear by the case, that Bancker has assigned his property within the purview of the act of congress. It is stated that Bancker, soon after the execution of bond the United States, went to the West-Indies, on mercantile business, being then much indebted in NeivTori, and that in February, 1806, he shipped a quantity of goods to the defendants in Mew-Tod and directed them to sell the same on commission, to pay themselves out of the proceeds, and to pay over the residue to his father, for the payment of his other creditors.

The shipment here spoken of, was not an assignment of Bancker's property, but a mercantile transaction. It has been decided in the supreme court of the United States,

* that to give the United States a preference under this act, the assignment must embrace all the property of the debtor; and the plaintiff can be in no better situation than the United States. This construction I think correct. How, then, can the plaintiff succeed, without showing the state of Bancker's property, and that the shipment to the defendants, constituted the whole of it?

The attachment taken out, does not bring the plaintiff’s case within that part of the statute, because it was abandoned, and never reached maturity'. The proceeding was in a mere inceptive state, and no rights were acquired under it.

We are of opinion, that the defendants are entitled to judgment.

Thompson, J. not having heard the argument in the cause, gave no opinion.

Judgment for the defendants.

3 Cranch, 91.