Rosenthal v. The Mastin Bank.

Peck, 5 Bosworth, 341; Ballard v. Randall, 1 Gray, 605; Harker v. Anderson, 21 Wendell, 373; Dykers v. Leather Mfg. Co., 11 Paige, 616; National Bank v. Eliot Bank, 5 American Law Register, 711; Parsons on Bills and Notes, ed. of 1863, pp. 59 to 61, and notes; Parke, Baron, in argument, in Bellamy v. Majoribanks, 8 Eng. Law and Eq., 522, 523; Wharton v. Walker, 5 Barn. & Cress., 163; Warwick v. Rogers, 5 Mann. & Gr., 374; Byles on Bills, chapter Check on a Banker; Grant on Banking, London edition, 1856, 96.) The few cases which assert a contrary doctrine it would serve no useful purpose to review." The decision in the case cited is for this Court the law of this case. So far, then, as this suit is a suit on the draft against the drawee, to recover the amount of the draft, it cannot be maintained, for, the draft was not accepted by the drawee, nor was it charged by the drawee against the drawer. The draft was a draft or check in the ordinary form, not describing any particular fund, or using any words of transfer of the whole or any part of any amount standing to the credit of the drawer, but containing only the usual request. Under the settled law of New York, where the draft was payable, this was not an assignment of the funds of the drawer in the hands of the drawee. (Atty.Gen. v. Continental Life Ins. Co., 71 N. Y., 325, 330, 331.) Before the draft was accepted the drawer could withdraw the deposit or countermand the draft.

In this case, before the draft was presented to the drawee, the drawer assigned to the defendant Coates the entire debt due to it from the drawee, being a sum larger than the amount of the draft, as would appear from the certificate given to the sheriff by the drawee, and including the $1,998 which the plaintiff claims to recover from the drawee in this suit. The validity of this assignment, as a lawful instrument under the laws of Missouri, is not attacked or impeached by any pleading or evidence in this case. The assignment is one of "all of the lands, tenements, goods, chattels, effects and credits" of the Mastin Bank, "wheresoever situate," "in trust for the use and benefit of all the creditors of the said

Rosenthal v. The Mastin Bank.

the Mastin Bank, in proportion to their respective claims, as by the law, in case of voluntary assignments, made and provided." The debt from the Metropolitan National Bank to the Mastin Bank was a debt due from a bank located in this State, and was property in this State belonging to the Mastin Bank. The assignment from the latter bank to Coates, being a voluntary conveyance, valid by the laws of Missouri, as must be assumed, operated to transfer to the assignee the debt due to the assignor from the Metropolitan National Bank, and, as such assignment was prior in time to the attachment of the plaintiff, the latter cannot hold the debt attached, as against the claim of the defendant Coates under the assignment. It does not appear that the assignment to Coates is invalid under any statute or other law of this State. (Ockerman v. Cross, 54 N. Y., 29.)

There is nothing in the terms of the certificate given by the Metropolitan National Bank to the sheriff which gives to the plaintiff any greater rights than he otherwise would have had. The attachment was against money due as a debt to the Mastin Bank, and the certificate merely set apart so much money to answer the plaintiff's claim, if established. Nor is it material that Coates did not receive payment of the debt from the Metropolitan National Bank before the attachment was levied. There is nothing which shows that the attachment was levied, or that the draft was even presented, before the drawee was notified of the assignment.

The demurrers are allowed, with costs to the defendants, to be taxed, with leave to the plaintiff to move, on notice, on payment of such costs, within 20 days after service of a copy of the order to be entered on this decision, to amend the bill.

John Henry Hull and Joseph I. Stein, for the plaintiff.

Holmes & Adams, for the Mastin Bank and Coates.

Peabody, Baker & Peabody, for the Metropolitan National

Bank.

Gregory v. The United States.

GEORGE C. GREGORY, PLAINTIFF IN ERROR

vs.

THE UNITED STATES, DEFENDANTS IN ERROR.

Under that part of § 3,281 of the Revised Statutes which forfeits personal property owned by a person who has permitted or suffered his premises to be used for purposes of ingress or egress to or from an illicit distillery, it is necessary, in order to such forfeiture, that such person should have known that the ingress or egress over his premises was to or from a distillery.

(Before BLATCHFORD, J., Southern District of New York, November 28th, 1879.)

BLATCHFORD, J. The plaintiff in error (the claimant below) was the owner of the lot of land and buildings No. 419 East 48th street, in the city of New York. On that lot, in front and adjoining No. 421, was a dwelling house. On the west part of the lot 419 was a covered drive-way leading from a rear building to the street in front. The rear building covered the rear part of the lot 419 and extended eastward over the rear part of lot 421, which latter lot belonged to a Savings Bank. In this rear building there was no partition, the ground floor being one large room. An illicit still, in use as part of a distillery, was found and seized in the rear building in the part of it which was on the lot 419, and mash tubs were found and seized in the rear building on the continuation of the partition line between the front buildings on the lots 419 and 421. Between the front building on the lot 421 and the rear building was an open yard. Between the front part of the covered drive-way on the lot 419 and the rear building was a covered one story shed. Between the rear of the dwelling house on the lot 419 and the rear building were stalls. In these stalls were found and seized a horse, a truck and a lot of harness, belonging to the claimant. He used the covered drive

ness.

Gregory v. The United States.

way for ingress and egress between the stalls and the street. His business was that of a builder. An agent for the bank had, at its request, found a tenant for the rear building, at the rent of $40 a month. The claimant, in consideration of his receiving one-half of such rent, consented to the tenancy, and that the tenant should use such covered drive-way for ingress and egress between the street or front and such rear building. The claimant was informed that the rear building was to be used as a vinegar factory. The tenant set up the illicit distillery in the rear building, and used such covered drive-way for ingress and egress thereafter, between the street in front and such illicit distillery. The question tried in the Court below was as to the forfeiture of the horse, truck and harThe claimant was called as a witness on his own behalf, and, in the course of his direct examination, he was asked this question: "Did you know that this building was being used as a still?" This question was objected to by the counsel for the United States, as immaterial under sections 3,281 and 3,242 of the Revised Statutes of the United States. The objection was sustained by the Court, and the counsel for the claimant excepted to the ruling. At the close of the evidence the counsel for the United States moved that a verdict be directed for the United States. Thereupon the counsel for the claimant asked leave to go to the jury on the case generally, and as to whether the claimant permitted the drive-way to be used for the purpose of ingress or egress to or from a distillery. The Court denied such request, and the counsel for the claimant excepted to such refusal. The Court thereupon granted the motion of the counsel for the United States, under section 3,281 of the Revised Statutes, and the counsel for the claimant excepted to such decision. Thereupon, the Court directed a verdict for the United States, condemning said horse, truck and harness, and the counsel for the claimant excepted. The jury found such verdict and a decree of condemnation was entered thereon.

Section 3,281 of the Revised Statutes is in these words: "Every person who carries on the business of a distiller with

Gregory v. The United States.

out having given bond as required by law, or who engages in or carries on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by him, or of any part thereof, shall, for every such offence, be fined not less than one thousand dollars nor more than five thousand dollars and imprisoned not less than six months nor more than two years. And all distilled spirits or wines, and all stills or other apparatus fit or intended to be used for the distillation or rectification of spirits, or for the compounding of liquors, owned by such person, wherever found, and all distilled spirits or wines and personal property found in the distillery or in any building, room, yard, or inclosure connected therewith, and used with or constituting a part of the premises, and all the right, title and interest of such person in the lot or tract of land on which such distillery is situated, and all the right, title and interest therein of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or has connived at the same; and all personal property owned by or in possession of any person who has permitted or suffered any building, yard or inclosure, or any part thereof, to be used for the purposes of ingress or egress to or from such distillery, which shall be found in any such building, yard or inclosure, and all the right, title and interest of every person in any premises used for ingress and egress to or from such distillery, who has knowingly suffered or permitted such premises to be used for such ingress or egress, shall be forfeited to the United States."

The claimant has brought a writ of error. It is contended for the claimant, that, as soon as the distillery was established, his license was at an end; that his knowledge as to the use to which the building was put was material; that he granted a right of way to a vinegar factory and not to a distillery; and that he never permitted or suffered the drive way to be used for purposes of ingress or egress to or from the distillery.

For the United States it is contended, that the provisions of section 3,281, with regard to forfeiture of personalty and realty, are carefully distinguished; that the word "know