Page:Federal Reporter, 1st Series, Volume 7.djvu/382

 370 FBDEBAL REPOETBB. �the bill as against him has been taken pro confessa. The officer is likewise a defendant, but it is admitted that no decree can be made against him, �The only question of faot in dispute is whether the Eliot Bank, before attaching the shares, had notice that they had been pledged, or mortgaged, to the complainants. Conant testifies that at the meeting of the directors at which he con- fessed his misdoings, he was asked what assets he had, and mentioned certain shares of mining stock, and other things ; and that the president asked about these bank shares, and was informed of the fact that theywere pledged to the New York banks for their face value. Conant, soon after leaving the directors' room, consulted Mr. Morse, an attorney of this court, who went at once and saw the directors before they had leffc the bank; and he testifies that he was told there by some one or more of them that this stock was pledged. On the other hand, none of the directors remember such a conver- sation ; and some of them are confident that none such can have occurred. If it oceurred, it is admitted that the attach. ment could not hold because the attaching creditor had notice of the transfer. Black v. Zacharie, 3 How. 483. �I am inclined to think that the affirmative evidence must prevail in this case ; but there is so much doubt in my own, mind, that I have thought best to examine the disputed ques- tion of law, whether the attachment would take precedence if made without notice to the attaching creditor of the unre- corded transfer. �The arguments have been very thorough on both sides, and a great maqy cases have been cited. It has been very ably arged that by, the law of Massachusetts the ; .attachment would have the preference. This I consider doubtful; but. the decision does nct depend upon the law of Massachusetts. �1. It is not important to consider whether the contraot was consummated in Massachusetts or in New York. . The nego- tiability or transferable quality of the stock of a national bank depends upon the laws of the United States. Dickinson V. Central National Bank, 129 Mass. 279. In Merchants' Bank v. State Bank, 10 Wall. GOt, theadraitted law and usage ��� �