Tiernan et al. vs. Jackson.

lost by accident; who would have borne the loss thus occasioned? Surely the remitter K., and not the plaintiff and his other creditors, in whose favor he had directed the application of the money, according to their several proportions, to be made. This appears to us to decide the question." This language has been quoted at large from its direct application to all the circumstances of the case at bar. Here, Tiernan and Sons, before the sale and receipt of the proceeds of the tobacco, refused to hold the same for the use of Jackson; and how then could the money, when afterwards received, be money had and received to his use? If this case be law, it is in all its governing principles like the present. The case of Grant vs. Austin, 3 Price's Rep. 58, is still later, and recognises in the fullest manner the decision in 14 East, 582. That was the case of a remittance to bankers, with a request that they would pay certain amounts to persons specified in the letter. No dissent on the part of the bankers was shown. But the Court held, that in order to constitute an appropriation of the money, or any portion of it, in favor of the persons specified, some assent on the part of the bankers must be shown, and that the circumstances of the case did not establish it. The remitter was at the time largely indebted to the bankers; and the account between the parties was soon after broken up.

It seems to us that these authorities are founded in good sense and convenience. Until the parties receiving the consignment or remittance had done some act recognising the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a priority between them, the property and proceeds remained at the risk and on the account of the remitter or owner.

In this view of the case, it is wholly immaterial to decide whether Tiernan and Sons had a lien on the proceeds or not, for the balance due them; or whether the negotiations stated in the record created a disability on their part to assert it. For, even supposing that they have no available lien, that is a matter which cannot be litigated in a suit at law, where the only question is, whether the plaintiff has a good right to maintain his action; whatever might be the case in a suit in equity, brought by the plaintiff to enforce his equitable claims under his assignment.

The instructions given by the Court decided, that the assign

Tiernan et al. vs. Jackson.

ment made to the plaintiff did, in effect, pass the legal property in the proceeds to the plaintiff, so as to entitle him to maintain the present action; or that at all events it constituted such a special appropriation of them as would enable the plaintiff, as assignee, to maintain it. We are of opinion that the Court erred upon both grounds; and that therefore the judgment ought to be reversed, and the cause be remanded to the Circuit Court, with directions to award a venire facias de novo.

In the mandate, the errors in the bill of exceptions will be specially pointed out; but as the principles involved in them are resolved into the points before stated, they need not here be particularly commented on.

Besides the case in the Exchequer, referred to by Judge Story, the doctrine of Williams vs. Everett is recognised in Baron vs. Husband, 4 Barn. & Ad. 612, and Gibson vs. Minet et al., 2 Bing. 7, E. C. L., vol. 9, p. 293. Upon the same principles proceeded the case of Pinto vs. Santos, 5 Taunt. 447. An agent charged with the receipt of a sum of money, to be afterwards distributed in certain proportions, paid it into bank; and it was held, after a portion of the money had been drawn out, that, though the banker was aware of the nature of the interest, he was only accountable to the agent by whom the disposal had been made, and not to any of the individual proprietors of the fund.

PARTNERSHIP.

HARRISON US. STERRY ET AL.

Right of one Partner to make an assignment in the partnership name to a trustee, for the benefit of credits of the partnership effects and credits.

THIS was an appeal from a decree of the Circuit Court for the district of South Carolina, in a suit of equity, in which Richard Harrison was complainant, and the following parties defendants, viz. 1. The United States. 2. Sterry and others, assignees of H. M. Bird and Benjamin Savage, under a British commission of bankruptcy. 3. Aspinwall and others, assignees of Robert Bird, under an American commission of bankruptcy. 4. Several American creditors who had attached the effects of Bird, Savage, and Bird, in South Carolina. 5. Several British creditors who had also attached the same effects. And, 6. Thomas Parker, who, by consent of the creditors, had been appointed by the Court of Common Pleas in South Carolina, an agent for all the parties concerned to collect and receive the debts due to Bird, Savage, and Bird, which had been attached; and when received, to hold the same till the further order of the Court.

The question was, how those attached effects should be distributed.

Harrison, the complainant, claimed them as a trustee for the benefit of certain creditors of the house of Robert Bird & Co., which was the name of the firm by which the house of Bird, Savage, and Bird, of London, carried on merchandise at New York. Robert Bird, desirous of aiding and supporting the credit of the house of Bird, Savage, and Bird, by raising funds upon the security of the cargo of the East India ship Semiramis, and certain debts to a large amount due to them in South Carolina, made a deed of trust on the 3d of December, 1802, intending thereby to assign that cargo and those debts to the complainant. The

5 Cranch, 289, 2 Peters Cond. Rep. 260.

Harrison vs. Sterry et al.

deed purported to be signed and sealed by H. M. Bird and Benjamin Savage, by Robert Bird their attorney; and by Robert Bird in his own right. It recited that, “whereas H. M. Bird, Benjamin Savage, and Robert Bird, being copartners in trade under the several firms of Bird, Savage, and Bird, and Robert Bird & Co., have in consequence of disappointments been obliged to borrow money from the Bank of England, and under the firm of Robert Bird and Co., to purchase bills of exchange, public and bank stocks and goods upon credit in America, in order to furnish means of more effectually supporting the credit of the said Bird, Savage, and Bird, of London. And whereas, it may be necessary for the purpose aforesaid, that the said Robert Bird & Co. should continue to make such purchases until the present difficulties may be removed; and security having been already given to the persons bound as sureties to the Bank of England, for their responsibilities, the said H. M. Bird, Benjamin Savage, and Robert Bird, are desirous to secure all persons from whom purchases have been or may be made as aforesaid, for the purpose of aiding the said house or firm of Bird, Savage, and Bird. Now, therefore, know ye, that the said Henry M. Bird, Benjamin Savage, and Robert Bird, for the purpose above expressed," &c. The trust expressed was, "to apply the same and every part thereof for the equal security and indemnification, in proportion to their just demands, of all persons from whom the said Robert Bird & Co. shall, before the end of the year 1803, have made any such purchases of goods, stocks, or bills, or who before that time shall be holders of any bills of exchange drawn or negotiated by the said Robert Bird & Co., for the purpose of giving support to the house of Bird, Savage, and Bird, as aforesaid."

Another ground of Harrison's claim was a similar instrument of writing, dated the 31st of January, 1803, not under seal, but signed "Bird, Savage, and Bird," and "Robert Bird & Co.," which signatures were in the handwriting of Robert Bird.

The bill of complaint stated that Robert Bird & Co., before and after the 3d of December, 1802, and before the end of the year 1803, made various purchases of stocks, goods, and bills of exchange, and became indebted for bills drawn and negotiated by them for the purpose of giving support to the house of Bird, Savage, and Bird, which debts remain upaid. There was a letter of attorney from Henry M. Bird and Benjamin Savage to

Harrison vs. Sterry et al.

Robert Bird, but it did not authorize him to execute deeds in their names generally.

The claim of the United States rested upon the priority given by the act of Congress of the 3d of March, 1797.

The attaching creditors relied upon their attachments under the laws of South Carolina.

The assignees under the several commissions of bankruptcy relied upon the British and American bankrupt laws.

The United States had proved their claim under the American commission, and had voted in the choice of assignees. They had also attached the effects in South Carolina under the laws of that State, and had arrested Robert Bird and held him to bail in New York.

The Court below decided that the United States were entitled to priority of payment. That after satisfaction of that claim, Harrison would be entitled, under the assignment, to Robert Bird's third part or share of the property mentioned in the deed, and the attaching creditors to the other two-thirds. That the assignees under the British commission could take nothing; and that the assignees under the American commission could take nothing but the surplus after all the other classes of creditors were satisfied.

From this decree all the parties, excepting the United States, appealed.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of Court. The object of this suit is to obtain the direction of the Court, for the distribution of certain funds in South Carolina, which were the property of a company trading in England, under the firm of Bird, Savage, and Bird, and in America under the firm of Robert Bird & Co. The United States claim a preference to all other creditors, and their claim will be first considered.

Two points have been suggested, as taking this case out of the operation of the preceding decisions of the Court respecting the priority to which the United States are entitled.

1. That the contract was made with foreigners, in a foreign country.

2. That the United States have waived their privilege, by proving their debt under the commission of bankruptcy.

1. The words of the act which entitle the United States to a preference, do not restrain that privilege to contracts made