National Bank v. Warren

APPEAL from the Circuit Court of the United States for the Southern District of New York.

The Tenth National Bank of New York, having an undisputed debt against the firm of Sanger & Co., of about $10,000, endeavored to obtain its money by persuasion, but received only fair words in return. After pursuing this policy for several months, it brought suit against the debtors, Nov. 3, 1870. They received delay and indulgence in its prosecution, and judgment was rendered against them on the 12th of January, 1871. Execution was issued on that day, and a levy made upon their property. Yielding again to their solicitations, the bank did not press an immediate sale under the execution, and on the 24th of February, 1871, bankruptcy proceedings were commenced by their other creditors. The sale upon the execution was stayed by an injunction in the present suit, which was instituted by Warren & Rowe, assignees in bankruptcy of Sanger & Co., to set aside the judgment and execution as fraudulent and void.

This injunction was afterwards modified by allowing a sale, and directing the sheriff to hold the proceeds subject to the order of the court.

The District Court ultimately dismissed the bill with costs. That decree having, on appeal, been reversed by the Circuit Court, the bank brought the case here.

Mr. A. J. Vanderpoel for the appellant.

This case is, in substance, identical with Wilson v. City Bank, 17 Wall. 473.

There is no evidence whatever of any intent to give the bank a preference. Partridge v. Dearborn, 2 Low. 286; Hoover v. Greenbaum, 61 N. Y. 305; Sleek v. Turner, 76 Pa. St. 142; Henkelman v. Smith, 42 Md. 164.

Mr. Austen G. Fox, contra.

This case comes within the class of cases represented by Buchanan v. Smith (16 Wall. 277), and not that represented by Wilson v. City Bank (17 id. 473).

The liens obtained by the bank were a preference, and there fore void as against the assignees in bankruptcy.

MR. JUSTICE HUNT, after stating the case, delivered the opinion of the court.