guilty of negligence which contributed to the injury, and hence not entitled to recover."

The facts assumed in the instruction proposed depended on the evidence, and did not by any means comprise all the facts bearing upon the question; and, aside from the discretion which, as we have stated, may be exercised by the judge, we think he did quite right in this instance, after stating the law to the jury, in submitting the evidence to their consideration. 167] *Another instruction asked for was as follows: "It is the duty of every one approaching with his wagon and team along a highway to the crossing of a steam railroad to listen and to look both ways along the railroad before going upon it. If by reason of the character of the ground or other obstructions, or if by reason of a defect in his sense of sight or of hearing, he cannot determine with certainty whether or not a train of cars is approaching without stopping, and, if necessary, going in advance of his team to examine, it is his duty to do so. If in such case he goes upon the track without taking such precaution, he does so at his own peril, and cannot recover if injury results."

Here is no assumption of facts as in the previous instruction; but it states the duty of persons approaching a railroad with wagons and teams in a more absolute and unqualified form than we think admissible. It states such duty with the rigidity of a statute, making no allowance for modifying circumstances or for accidental diversion of the attention, to which the most prudent and careful are sometimes subject; and assuming, in effect, that the duty of avoiding collision lies wholly, or nearly so, on one side. We think that the qualified form in which the duty of travelers on highways in approaching a railroad was stated by the Judge in his charge, as applicable to the evidence and circumstances of this case, was all that could be justly required by the defendants.

The judgment of the Circuit Court is affirmed.

Messrs. T. J. Durant and C. W. Hornor, for plaintiff in error:

Reakirt obtained $10,000 of the Bank's money by a crime. No property in this amount passed or could pass to the forger. It remained the Bank's money. It went into Reakirt's various bank accounts. It was mixed up in every possible way. It was changing its shape every day and every hour. Still, it cannot be denied that it was the property of the Bank and not of the bankrupt.

U. S. v. McRae, L. R., 8 Eq., 74; Pinkett v. Wright. 2 Hare, 120; Sinclair v. Wilson, 20 Beav., 324; Mays v. Bk. 64 Pa., 74.

The $10,000 originally credited to Reakirt never passed to him as owner. It never became Reakirt's property, so that he could surrender it to his creditors. The Bank could use any means in its power to get back its own property, provided no breach of peace was committed; and the assignee has neither a legal nor an equitable title to get the property back, in an action for moneys had and received, because this money was actually and legally "at home" when received by the Bank.

Wiseman v. Vandeputt, 2 Vern., 203; Scott v. Surman, Willes, 400; Manningford v. Toleman, 1 Colly., 674.

Had the money been stolen from the Bank, neither the right of possession nor property passes.

Lindsay v. Cundy, 1 Q. B. D. (L. R.), 348361, and many cases cited.

If the crime here be forgery, and if Reakirt obtained possession of the Bank's funds by means of said crime, still the consequences will not follow that the Bank's money became the property of the criminal, and vested by the bankruptcy proceedings in his creditors. The Bank could waive the tort and sue successfully in trover, if the money was in marked pieces or susceptible of identification in the possession of the forger, or after bankruptcy, in the hands of his assignee; or for money had and received before bankruptcy, in case no identification were possible.

Horwood v. Smith, 2 T. R., 750, followed in Lindsay v. Cundy, just quoted; Scott v. Sur

in Err.,

V.

SAMUEL DICKSON and SPENSER M. JANNEY, Assignees in Bankruptcy of Tryon Reakirt.

(See S. C., Reporter's ed., 180-183.) Fraudulent preference under Bankrupt Law. The payment of a debt, or the transfer of money or goods, with a view to give a fraudulent preference by an insolvent, where the party receiving the money had reasonable cause to believe that the party paying the money was insolvent, is void if made within four months before proceedings in bankruptcy.

[No. 66.]

& S., 562; Catts v. Phalen, 2 How., 381; Oliver v. Piatt, 3 How., 401; Smith v. Vodges, 92 U. S., 186, 23 L. ed. 482.

The idea that Reakirt, the bankrupt, could recover this money back from the Bank in any action or petition, is evidently erroneous and irrational.

See, notes to Marriot v. Hampton, 2 Smith, L. Cas., 393; Bk. U. S. v. Bk. Ga., 10 Wheat., 333; Fuller v. Smith, 11 Eng. C. L. 366; Jones v. Ryde, 5 Taunt., 488; Gurney v. Womersley, 82 Eng. C. L., 133; Johnson v. Windle, 3 Bing. (N. C.), 225; Ex parte Ames, Lowell, Dec., 562; Sawyer v. Turpin, 91 U. S., 114, 23 L. ed., 235.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. The case is stated by the court.

and morals.

Sutton v. Wilders, L. R., 12 Eq., 377; Midland R. Co. v. Taylor, 8 H. L. C., 751; Espy v. Bk., 18 Wall., 614, 21 L. ed., 949; Mont

gomery v. Machine Works, 92 U. S., 257, 23 L. ed., 656.

The Bank, it will be noticed, never hesitated in its course after the discovery. The question in all such cases is: has the obligee, having notice of the nullity of the contract, elected not to avoid the contract, or has he elected to avoid it, or has he made no election?

Clough v. Railway, L. R., 7 Exch., 35, and cases cited; Stevenson v. Newnham, 16 L. & E., 406; Young v. Billiter, 34 L. & E., 339.

The Bank never admitted and does not now admit that there ever was a contract between it and the bankrupt. The Bank is not claiming the dissolution or the resolution of the contract, but the absolute nullity and total avoidance of the contract, for the inherent defect therein of want of any aggregatio mentium on the subjectmatter.

principal; and there was not only reasonable cause to believe, but clear knowledge of, the insolvency of Reakirt.

The remaining sum falls under the 14th section of the Bankrupt Act, which is as follows, viz.: "As soon as the assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignees all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto; and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process, as property of the debtor, and shall dissolve any such attachment made within four

Messrs. John C. Bullitt and Samuel Dickson, for defendants in error:

The money was treated as Reakirt's own at the time. It was in his possession or to his credit, and it was drawn out on his checks and attached as his property. Such possession was prima facie evidence of title and all parties dealt on this basis.

Voight v. Lewis, Phila. Leg. Int., Nov. 10, 1876; Bk. v. King, 57 Pa., 203; Jackson v. Bk., 10 Pa., 61.

Mr. Justice Hunt delivered the opinion of the court:

In the present action, the assignees in bankruptcy of Tryon Reakirt seek to recover from the West Philadelphia Bank two different sums of money. The first is a sum of $5,000 paid by Reakirt on the 6th day of February, 1871; the second is the sum of $4,559.76, collected by B. K. Jamieson on behalf of and for the benefit of the Bank, through certain attachment 181] *proceedings in the courts of the State of New York. The case was tried before a jury in the Circuit Court of the United States, and a verdict and judgment rendered in favor of the assignees for the amount demanded.

The sum first mentioned is claimed to belong to the assignees, on the ground that it was the payment of a debt, or the transfer of money or goods, with a view to give a fraudulent preference by an insolvent, and where the party receiving the money had reasonable cause to believe that the party paying the money was insolvent. The provisions of the 35th section of the Bankrupt Act control this branch of the case. There is no doubt expressed by any party as to the insolvency of Reakirt, the debtor. His career as a speculator had terminated in forgery. His forgeries had been discovered, his money was gone, and his trust in his rich relatives unavailing. The agent and director of the Bank heard of the forgery, and was the first upon his track, demanding security or payment, and refused to give him even a part of a day to apply to his relatives for aid, but insisted upon an immediate transfer of his funds in bank. With the greatest pressure, only one half of the debt could be obtained. Upon general principles, the case seems to fall clearly within the provisions of the Act.

The knowledge of the agent was that of the

bankruptcy proceedings."

*After obtaining from the bankrupt his [182 funds in Philadelphia, the agent of the Bank, Mr. Jamieson, who was also one of its directors, went to New York, and there commenced an action in his own name, but for the benefit of the Bank, against the bankrupt, and obtained an attachment against Randolph & Co., and Evans, Wharton & Co., bankers, with whom Reakirt, the bankrupt, had a credit of about $11,000. He obtained a judgment against Reakirt for $5,176.82, and issued an execution, which was paid through the means of the attachment referred to. The statute declares this attachment, if made within four months preceding the commencement of the bankruptcy proceedings, as was this one, to be dissolved by the assignment in bankruptcy. It is avoided and made of no effect, and the proceedings under it are held for naught. The money, obtained by color of it, is money held for the assignee and is recoverable by him.

But it is contended on behalf of the Bank that the money thus obtained in each instance was the money of the Bank, that it was a case of the reclamation of its own property. If the $5,000 obtained in Philadelphia on checks had been the identical money received from the Bank, or the fruits of that money, or if in any manner the money could be traced or separated, this question might be raised. But, in fact, the debt had accrued to the Bank, and the money had been received from it nearly two months before the occurrences of February 6. This money had been deposited in various banks, mixed with the other funds of Reakirt, and all used by him at his convenience. There is not a pretense that the money obtained on the checks was the result of the particular transacactions with the Philadelphia Bank. Reakirt was a druggist, a manufacturer, a stock speculator, and, as has occurred in other like cases, a forger. In the last capacity he had realized the sum of $100,000. There is no evidence where this particular money came from, and certainly no presumption exists that it came from the West Philadelphia Bank. The money obtained upon the New York attachment was a part of a balance of $11,000 standing to Reakirt's credit, with no evidence of the source whence any part of it was derived. There is literally no evidence on which to base the theory of reclamation.

*Much is said in argument on the sub- [183

ject of the rescission of the contract. The contract of loan was upon the note or notes of Reakirt, and in form was that of an ordinary loan of money. He gave forged securities as collateral. Whether this justified a rescission on the part of the Bank, of the entire contract, or whether the Bank did rescind, we do not consider of any importance. If it could have identified and followed its money, this question might have become practical. But, as there is an entire failure of proof in that respect, the question does not arise.

The judgment is affirmed.

MARCOS RADICH, Plff. in Err.,

V.

WILLIAM S. HUTCHINS et al.
(See S. C., Reporter's ed., 210-214.)

Foreigner domiciled in rebellious State-compulsory payment-aiding rebellion.

1. A foreigner, domiciled in the rebellious States during the late war, owed allegiance to the government of the country so long as he resided within its limits, and could claim no exemption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent States. 2. A payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid. 3. Where one sold cotton to the Confederate States, and paid money and goods for its redemption for the benefit of those States, to assist them in their war against the government and authority of the United States, no demand arising out of such transaction can have any standing in the courts of the Union.

[No. 38.]

Argued Oct. 25, 1877. Decided Nov. 12, 1877.

In Error to the Circuit Court of the United States for the Eastern District of Texas.

This action was commenced in the court below, by the plaintiff in error, against the defendants in error.

The case appears in the opinion. Messrs. J. H. Embry and Durant & Hornor, for plaintiff in error.

Messrs. P. Phillips and W. P. Ballinger, for defendants in error.

Mr. Justice Field delivered the judgment of

the court:

If at the time the transaction took place, which has given rise to the present action, the plaintiff was a subject of the Emperor of Russia, as he alleges, that fact cannot affect the decision of the case, or any question presented for our consideration. He was then a resident of the State of Texas, and engaged in business there. As a foreigner domiciled in the country, he was bound to obey all the laws of the United States not immediately relating to citizenship, and was equally amenable with citizens to the penalties prescribed for their infraction. He owed allegiance to the government of the country so long as he resided within its limits, and 212] can claim *no exemption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent States. The law on this subject is well settled and universally recognized. Carlisle v. U. S., 16 Wall., 154, 21 L. ed., 429.

The case presented by his petition is without merit. He alleges in substance that he was, in 1864, in Texas the owner of 450 bales of cotton, of the value of $50,000, which he designed to export to Mexico, and which were then in transit on their way to Matamoras; that the defendant, Hutchins, claiming to be a lieutenant-colonel in the Army of the Confederate States, and chief of the cotton office at Houston in that State, combining with the defendant Wells and others, had, without warrant of law, by a public notice, prohibited the exportation of cotton from the State, except upon written permits from his office; that such permits would not be issued except upon condition that the person desiring to export cotton should sell to them an equal amount, at a nominal and arbitrary price, for the benefit of the Confederate States; that, being desirous to export and sell his cotton, because of the risk incurred of its destruction or loss during the war, and knowing that if he should attempt to send it beyond the frontier of

.

the State into Mexico the armed forces of the Confederate States, provided to carry out the illegal exactions of the defendants and their confederates, would capture and confiscate it, he was compelled to submit and did submit to the condition imposed, and accordingly delivered to the defendants one half of his cotton, namely: two hundred and twenty-five bales, at a nominal and arbitrary price, as a consideration for a permit to export the other half, but upon a stipulation, however, insisted upon by himself, that he should have the privilege of redeeming the bales sold, and be permitted to export them upon the payment of such sum as the defendants might demand; and that afterwards he paid them $13,357 in specie, and in goods, wares and merchandise at specie values, in redemption of the bales and for a permit to export them. And he alleges that the amount thus paid was an illegal, wrongful and an oppressive exaction; and that it was submitted to by him because of the armed force to support and enforce it.

The substance of this complaint is, that the defendants, as officers of the Confederate Government, by a public notice, had prohibited the exportation of cotton from the State of Texas to Mexico, except upon condition that the exporter should sell to them an equal amount for the benefit of the Confederate Government; and that the plaintiff, being the owner of cotton which he desired to export, and fearing that if he attempted to export it without such permit it would be seized and confiscated by the armed forces of that government, complied with the condition, and obtained a permit from the officers to export 225 bales, and sold to them an equal amount for the Confederate Government, obtaining at the same time the privilege of redeeming the cotton sold, and receiving a permit to export it, upon payment of such sum as they might demand; that he took advantage of this privilege and redeemed the cotton, paying in money and goods the sum mentioned.

There is nothing in these allegations showing that the defendants subjected the plaintiff to any coercion or duress, which would justify an action against them, either for the return of the money paid or for the value of the goods delivered in place of the money, or for damages of any kind. There is no averment that either of the defendants ever made or attempted to make

After two annual payments, should it be desired to discontinue the policy, the Company was to issue "a paid-up policy for as many tenths of the amount originally assured as there had been annual premiums paid in cash."

Such being the policy, we are next to consider the admitted facts, as shown by the agreement of the parties.

At the time of the execution and delivery of the policy, the parties agreed that the annual premium of $615.40 should be paid each year, as follows: $369.24 in money, and $246.16 in the promissory note of Annie C. Dutcher, payable twelve months from date, with interest at the rate of seven per cent.

On the payment of the money and the delivery of the note, a receipt for $615.40, the amount of the premium for a year, was to be delivered to Annie C. Dutcher, the amount of the note to be a permanent loan to her, bearing interest at the rate of seven per cent. per annum, until paid by dividends of profits.

At the maturity of the note, a new note, bearing the same rate of interest and covering the amount of the prior note (except as reduced by dividends), and the amount of $246.40 of premium for the current year, was to be given; and so on from year to year during the existence of the original policy.

Annie C. Dutcher did, accordingly, on the 29th of February, 1868, pay the Company $369.24 in money, and $246.16 in her promissory note drawn as aforesaid,

The Company thereupon gave her a receipt, specifying the payment of $615.40 in full of the premium for the ensuing year, and that $246.16 of the premium had been loaned to her. 271] *This arrangement was carried out also with reference to the premiums due February 28, 1869, February 28. 1870, and February 28, 1871. This continued the original policy in force until February 28, 1872. The amount due to the Company after the adjustment of the premium of 1871 was, including the amount due upon the prior notes so given, $793.64.

Annie C. Dutcher thereupon, after due notice, demanded a paid-up policy. The Company refused to issue it unless she would first pay the $793.64 so due from her, which was a lien against the existing policy. She declined to comply with this demand.

It is further agreed, that from the time the Company began business to the 20th of January, 1871, it was the course of business of the Company to issue paid-up policies to policy holders on demand, without reference to their indebtedness to the Company, arising as before stated, and to hold such indebtedness in each case as a lien against the paid-up policy, but that on and after that date the Company refused to give a paid-up policy to any policy holder, without the payment first by the policy holder of the amount owing to the Company.

In this condition of things the appellees instituted this suit to compel the delivery of a paid-up policy. The court below decreed in their favor. The decree was conditioned that the sum of $793.64, and interest at the rate of seven per cent., owing to the Company, less the accruing dividends of profits, should be a lien against the new policy, and that the amount due to the Company at the death of Clinton O.

We think the decree is right.

The agreement set out in the admitted facts supplemented the policy. It had all the elements of validity. It was made by parties competent. to contract. There was the requisite meeting and assent of minds. No canon of the law was violated. It stipulated expressly that the amount of the note given for the designated part of the annual premium was to be "A permanent loan from the Company to Annie C. Dutcher, bearing interest at the rate of seven per cent., until paid by *dividends." The [272 receipt was for "Six hundred and fifteen 40/100 dollars, which continues in force the policy,' etc. The part of the premium for which the note was given each year was described as "amount of premium loaned this year." The policy provides that the amount of the note unpaid, if any, when the sum secured by the policy became payable, was to be deducted from the amount of the insurance money to be paid. This was the stipulation upon the subject. Beyond this there was no condition or qualification touching the note. The rights of the parties are thus clearly defined. Nothing is said in this connection as to any payment or discharge of the note in any other way than those thus prescribed. The note was to be renewed every year for the proper amount, and credited regularly with the accruing dividends during the life of the policy.

But it is said the policy declares that the amount of the paid-up policy should be determined by the sum of the premiums "paid in cash."

To this there is an obvious and, we think, a conclusive answer. The part of the annual premium for which a note was to be given was, in substance and effect, a loan of so much money by the Company to the assured. It was so described in the receipt of the Company for the premium, and in the contract of the parties. If the money had been actually paid to the Company, and the next moment loaned back, and the note then taken, there would not have been room even for a quibble upon the subject. Why go through such a ceremony? Why not go directly, as was done, to the end in view? The intent which animated the conduct of the parties determines its character. The receipt and contract both show that the transaction was regarded by both parties as a payment of money to one and a loan back to the other, for which the note was taken. The receipt was for the full amount of the premium. The note and loan were mentioned by way of memorandum, as a distinct matter. The law never requires an idle thing to be done. It would clearly have been this, and nothing else, if the assured had actually handed over the money and note with one hand, and eo instanti, with the other taken back the money. The Company had the power to waive the actual production and payment of the money, and to receive a note bearing *interest as the same thing. It has exer- [273 cised this power, and is estopped to deny the consequence. Where a surety, by giving his note, extinguishes the liability of his co-surety, he can maintain an action against the co-sure