734 St.) above cited requires the practice and mode of proceeding in civil other than equity and. admiralty in.the circuit and distrICt courts, to conform, as near as may be, to the .practice and mode of proceeding in the state 'courts; and it is a mode of proceeding in the state courts of this distl'ict, in a case where a view may aid the jury to understand the testimony, to direct such view upon moiion of either party, and it is theptactice of the court to allow such part or all of' the costs as may be deemed equitable. The defendant claims to recover a docket fee of $20 at the former trial: when the jury disagreed, and a like fee at the· second trial, when judgment was for the defendant; but ohly one docket fee can be allowed. Witness fees, travel and attendance, and other items allowed as taxed.
GILLESPIE and others, Bankrupts.
(Districe Court, S.D. New York.
CHOSE IN ACTION-CoNFLICTING ASSIGNMENTS.
A subsequent bonafide assignee of a chose in actioD, who, for a valuable consideration, after due inquiry, and without notice of any prior assignment, gives immediate notice of the assignment to the debtor, or trustee of the fund, and takes possession of the evidences of'debt, has a superior equity over a prior assignee of the same debt or fund, who'leaves the evidences of the debt with the assignor, and gives no notice of the assignment to the debtor or trustee.
In Bankruptcy. The firm of Gillespie & Co. having been adjudicated bankrupts, T. J. Daly & Co., holders of four promissory notes of the bankrupts, payable to their own order and indorsed in blank, proved the notes in bankruptcy, and in March, 1874, received a dividend of 25 per cent. thereon, which was indorsed upon the notes. Afterwards, on September 13, 1875, Daly & Co., being in embarrassed circumstances, made a composition with their own creditors, and, for the purpose of securing payment of certain composition notes, executed an assignment of all their assets to Amasa A. Redfield, among which assets the claim against the Gillespie estate was mentioned. The Gillespie notes were not delivered, to Redfield, nor did the latter notify the assignee in bankruptcy of the transfer to him. On the ninth of December, 1876, Daly & Co., being still in possession of the notes, retleived from the assignee of Gillespie a further dividend of 5 per cent., which was likewise indorsed upon the notes, and the receipt thereof
785 signed by T. J. Daly & Co:. On July ,5, 1877, Daly & Co. applied to Hatch & Sons fora loan upon the security of'the Gillespie notes,and further dividends expected thereon. Ha:tch & Sons made inquiry of Gillespie's assignee, andb'ein'g! informed that a further dividend woulq. be payable, and having no of thf;l prior assignmell,tto Redfield, made advances upon the notes which were deliveredto them by' l)aly & Co., and at onoe notified ,the assignee in bankruptcy of the transfer, and that further dividends would be payable to them. Redfield gave notice Of 'his 'claim to the assignee for the first time on March 25, 1880, and claimed that any future dividends should 'be paid to him. Under these conflicting claims, a subsequent· dividend' on the Gillespie notes of $717;92 was deposited in the registry of this court; and both 'assignees have. presented petitions claiming the dividenduuder the assign:mElllts above· stated. Ward et 'Jenks, fot Hatch & Sons.' E. O.'Deiavan'andJ.P; Lowery; for Redfield. BROWN, J. The question involved in the rival claims to thisdividend has beehdifferently de.cided 'by high' authorities. The claim for the dividend is not:& claini: strictly upon the note against the maker, but a claim forpaymentfroIQ,the assignee of the bankrupt upon the proofof theihankrupt's riMi:ls made "pnorto a'ssignmentto , either' of the-rival claimants. 'In this view! cannot distinguish it from the! case of Muir v: Schenck, '8 Hill; 228; ;a'ild Oooper-v. Fynmore, 8 Russ. 60. And upon these authOrities, Redfield being prior in time, would have the prior right. On the other haud, the case last cited is certainly overruled in England by the lord chancellor in the carefullyconsidered cases of Dearie v. Hall and Loveridge v. Cooper, 3 Russ. I, 57, 58; and the principle of these ,eaSElS ha,sbeen repeatedly adopted and approved by the supreme coU:rt, as shown by the cases of Judson v. Corcoran, 17 How. 612, 615; by MARSHALL, C. J., in Hopkirk v. Page, 2 Brock. 20, 41; in Spain v. Hamilton's Adm'r, 1 Wall. 604; and Nat. Bank v. Texas; 20 Wall. 72,89. . In Judson v. Corcoran, supra, the court say:
.. There may be cases In Which a purQhaser,. by sustaining the character of a bonafide assignee, will be in a better situation than the persoll was of whom be bought j as, for instance, where the purchaser, who alone had made inquiry and given notice to the debtor, or to a trustee holding the fund, (as in this instance,) would preferr£\d over the prior purchaser who neglected to give l?-Dtice of his assignllfent and ,warn otherll not to bUy."
In Lovc1'idge v. Cooper, 3 Russ. 58, the lord chancellor says:
"Where personal property is assigned, delivery is necessary to complete the transaction, not as between the vendor and the vendee. but as to third persons, in order that they may not be deceived by apparent possession and ownership remaining in a person who, in fact, is not the owner. This doctrine is not confined to chattels in possession, but extends to choses in action, bonds, etc. In Ryall v. RoZZes, 1 Ves. Sr. 348, it is expressly applied to bonds, simple contract debts, arid other choses in action. In cases like the present, the act of giving the trustee notice, is, in a certain degree, taking possession of the fund; it is going as far towards equitable possession as it is possible to go; for, after notice given, the trustee of the fund becomes a trustee for the assillneA who has given him notice."
The principle of all these latter cases is that the first purchaser of the chose in action, who neglects to give notice to the debtor, or trustee holding the fund, and does not take possession of the evidences of the debt, acquires but an imperfect title as respects third persons, and by his laches is, in a sense, a contributory party to the fraud perpetrated by his vendor in the subsequent sale to another purchaser of tliesame debt or fund; and where the latter has used all duediligence by inquiry and notice, the equity of the latter is to be preferred over that of the former. 1 Dan. Neg. lnst. § 748a. Many of the authorities upon this general subject are reviewed in the opinion of the court, in McNeil v. Tenth Nat. Bank, 46 N. Y. 825. The equities of Hatch & Sons in this case are plainly superior, through the laches of the first assignee, and an order should. therAfore, be entered for the payment of the dividend to them.
(Circuit Court, E. D. MiSSoUri. March 21,1883.)
(REV. ST. 5057)-MISTAKE OF LAW. \ Where a creditor was Ie::! by an erroneous decision of a circuit court to believe that he could not enforce his claim against a bankrupt estate, and on that account failed to present it until the decision of the circuit court was overruled, about four years and a half after the cause of action accrued against the assignee, held, that his mistake as to the law was no excuse for the delay, and that his claim was barred by the limitations of the bankrupt act.
Bilfto review the action of the district court in the matter of the State Insurance Company, bankrupt, upon the petition of A. J. Rtillwell,
*Reportcd by B. F. Rex, Esq., of the St. Louis bar.