deeds, and within thirty days, shall be null and void against any creditor of said assignor" (P. L. 1817-18, p. 287).

Was the transfer of February 10, 1898, an assignment in trust? We are of opinion that it was not. We cannot adopt the suggestion that the words "receiver of the Chestnut Street National Bank," as they occur in its first paragraph, are simply words of description. We think it is manifest that they were not so intended. The sole purpose of the transfer, as expressly stated, was to secure an indebtedness to the bank; and it seems to be clear that for this reason it was made to Mr. Earle in his capacity as receiver, and not otherwise. Consequently he took for the bank, and as the bank. He stood in the place of the bank. As its receiver, he unquestionably was a trustee for it and its creditors. But the assignment itself imposed no trust whatever. It therefore does not purport to be an assignment in trust, and we have not been convinced that it must be so regarded merely because the law of the United States required that it should be made to the receiver of the bank, instead of to the bank itself. If it had been solvent, and such an assignment had been made directly to it, it certainly would have been entitled to hold for its own exclusive benefit; and surely this right was not forfeited by its insolvency, and the consequent appointment of a receiver, to whom, subject to the direction of the comptroller, there passed the power, theretofore vested in its directors, to secure and collect its credits and other assets. We have examined the several Pennsylvania decisions to which our attention has been directed, but it is unnecessary to discuss them. They determine, at least, that an assignment by a debtor directly to his creditor is not within the statutory provisions relied on by the appellant; and, in our opinion, the transfer now in question was, in substance and legal contemplation, a transfer to the creditor bank itself. Rev. St. § 5234; Kennedy v. Gibson, 8 Wall. 506, 19 L. Ed. 476; First Nat. Bank v. Pahquioque Nat. Bank, 14 Wall. 383, 20 L. Ed. 840; Price v. Abbott (C. C.) 17 Fed. 506.

The contention that it was intended to hinder, delay, and defraud the other creditors of Singerly is not supported by anything that appears on its face, nor by the extrinsic evidence. When a debt is actually due, a fraudulent intent cannot be inferred from the mere fact of transfer (Werner v. Zierfuss, 162 Pa. 360, 29 Atl. 737); and this instrument, though undoubtedly preferential, displays no badge. of fraud. It reserves nothing to Singerly, and its provision for the relinquishment of the property transferred, in case the plan of reorganization to which it refers should be drafted and put in force, was not opposed, but favorable to the interests of his other creditors. It may safely be assumed that Mr. Earle was aware that the effect of the transaction would be to postpone them, but this is immaterial. "The criterion is not the effect, but this fraudulent intent" (Werner v. Zierfuss, supra); and, as respects the existence of such intent, our independent examination of the evidence has brought us to the same. conclusion as was reached by the master and by the court below. It was not shown that the transfer to the receiver was either made or taken to hinder, delay, or defraud other creditors, but simply, as it

declares, for the indisputably lawful purpose of securing Singerly's indebtedness to the bank.

Courts of equity, when exercising jurisdiction over the dealings of persons standing in fiduciary relation, will not permit the one in whom, by reason of such relation, confidence is reposed, to retain an advantage obtained at the expense of the confiding party, by exertion of the influence which naturally grows out of that confidence. This salutary rule has been frequently enforced both in England and in this country, but the facts of the present case do not call for its application. Mr. Earle, it is true, was prominently and actively concerned in an attempt to bring about an adjustment of Singerly's affairs, and a reorganization of the associations and interests which their entanglement involved. He was, too, a receiver of one of those associations, and one of the assignees of another of them; but in no sense was he a trustee for Singerly. The latter entertained the hope that the "plan of reorganization" which was suggested by Earle and Cook would inure to his benefit, and he freely co-operated with them. in their earnest but unsuccessful efforts to consummate it. We have, however, searched this record in vain to find any evidence which would have justified a finding that with respect to this plan, or anything else, Earle's connection with Singerly was a fiduciary one. Moreover, any confidence which, notwithstanding the nonexistence of such relation, Singerly may have reposed in Earle, does not appear to have been abused. It was the desire of both of them that this transfer to the receiver of the bank, as well as that which was made to Earle and Cook as assignees of the trust company, should be made; but that any undue influence was exercised to procure them does not appear. They were executed and delivered upon the advice of Singerly's separate counsel, and the fact that this advice was based "mainly, if not altogether, upon the ground that their execution was desired by Earle," is not material. Whatever may have been Singerly's motive for making them, or the prevailing consideration in the mind of his counsel when advising them, no advantage seems to have been taken of Singerly; nor does Earle's position, such as it was, appear to have been in any way used either to coerce or allure him.

We have attentively examined the voluminous testimony which was adduced upon the question raised as to the sanity of Mr. Singerly. It could not be reviewed at length without unduly expanding this opinion, or be better summarized than it already has been in the report of the master. We concur with him, and with the learned judge of the court below, in holding that, as a whole, it did not establish that Singerly was insane when he executed the transfer to Earle. Whatever room there might be for controversy upon any more general aspect of the subject, there can, we think, be no reasonable doubt as to the capacity of Singerly to rationally contract as and when he did contract; and the existence or nonexistence of such capacity at that time was and is, of course, the precise question for determination. Upon that question we approve and adopt the findings, reasoning, and conclusion of the master, and, without restating them at length, deem it enough for the present purpose to say that we are

entirely satisfied of the correctness of the following statements which we extract from his report:

"In this case the testimony clearly establishes that the matter of these preferential assignments was, prior to their execution, the deliberate, conscious, and voluntary action of Mr. Singerly; that he gave the necessary instructions for their preparation, and that their substance and import was explained to him by his own counsel, who then believed, and does not now question, in his testimony, that Mr. Singerly fully understood the nature of his act; and that Mr. Singerly, after the execution of the assignments, was conscious of what he had done, and at no time repudiated his solemn act during his lifetime. * * Of those who were present, all testitied, except Mr. Addicks and Mr. Singerly, both deceased; and all of them, including Mr. Singerly's counsel and the present counsel for the respondent, agree that his mental responsibility and sober condition was never questioned by them."

The administrator of Singerly's estate had no just ground for complaint of the exchange which was made of Record stock and bonds for Traction stock, as collateral to the notes of Singerly which were originally held by the Pennsylvania Company for Insurances on Lives and Granting Annuities, and were purchased from it by the Finance Company of Pennsylvania, the Guarantee Trust & Safe Deposit Company, and the Pennsylvania Warehousing & Safe Deposit Company. The Traction stock had been borrowed by Singerly to be used by him to secure the loan which he afterwards obtained upon those notes, and it was so used. To protect its owners, Singerly transferred to a trustee for them the shares and bonds of the Record Company. After Singerly's failure and death, it became evident that the Traction stock was liable to sale by the pledgee thereof, and that, upon such sale being made, the trustee who held the Record shares and bonds might and would sell them to liquidate the loss of the owners of the Traction stock. The situation was a serious and menacing one for Singerly's estate, as well as for the bank's receiver. A sacrifice of valuable assets was imminent, and this Mr. Earle was anxious to avoid. Accordingly, and with the approval of the comptroller of the currency, he procured the surrender of the Traction stock to its owners, and the acceptance in its place of the stock and bonds of the Record Company. By this arrangement no harm was done to the estate of Singerly. Manifestly, it was to its advantage. It prevented a forced sale of the Record stock and bonds, and extinguished the obligation which Singerly had assumed to those who had loaned him the Traction stock; and this it accomplished without imposing any lien or charge upon the Record stock and bonds to which they were not already, in substance, subject. It was not only a fair and honest transaction, it was an eminently discreet and proper one. It was one to which the assent of the appellant, if requisite, might reasonably have been expected. It is insisted, however, that, because he did not in fact assent to it, he is entitled to take these stocks and bonds free and discharged of and from any lien whatever. In assuming this position, he, no doubt, has been actuated by a sense of duty to the interests he represents, but to us the demand itself seems to be too plainly inequitable for possible allowance in a court of conscience. Even, however, if the assent of the representative of Singerly's general estate to the arrangement in question might otherwise have

been necessary, it was, we think, rendered unnecessary by the assignment of February 10, 1898; for by it Mr. Earle was "clothed with the fullest powers to join in all sales or assignments of said stock," was vested with "the rights of an owner, so far as regards sale, disposition and management" thereof, and was empowered to demand further assurances for "effectually transferring the said shares. and bonds to him." Consequently he was, in our opinion, amply authorized to deal with them as he did, and no action on the part of the administrator was needful.

Having, we believe, sufficiently stated our views upon all the points. presented for our consideration by the learned counsel of the appellant, it remains but to say, as to the whole case, that the decree under review is, in our judgment, in no respect erroneous. It is therefore affirmed, and the cause will be remanded to the circuit court for such further proceedings as may be requisite or proper to be there taken in pursuance thereof or in conformity therewith.

NOTE.

Actions by and against Receivers and "Agents" of National Banks.

I. IN GENERAL.

[a] (U. S. Sup., Ala.,1874) The debtors of a national bank, when sued by a person whom the comptroller, professing to act in pursuance of the fiftieth section of the national currency act, has appointed to be its receiver, cannot inquire into the lawfulness of such receiver's appointment.-Cadle v. Baker, 20 Wall. 650, 22 L. Ed. 448.

[b] (U. S. Sup., N. Y., 1899) The receiver of a national bank cannot recover a dividend paid not at all out of profits, but entirely out of the capital, where the stockholder receiving such dividend acted in good faith, believing the same to be paid out of profits, and where the bank, at the time such dividend was declared and paid, was not insolvent.-McDonald v. Williams, 19 Sup. Ct. 743, 174 U. S. 397, 43 L. Ed. 1022.

[c] (U. S. C. C. A., N. Y., 1899) The receiver of an insolvent national bank may recover from a stockholder dividends declared and paid after the bank became insolvent, where necessary to meet the demands of creditors.Hayden v. Williams, 37 C. C. A. 479, 96 Fed. 279.

[d] (U. S. C. C., Cal., 1891) When sued by the receiver, stockholders of a national bank cannot inquire into the legality of his appointment.-Young v. Wempe, 46 Fed. 354.

[e] (U. S. C. C., Mo., 1901) The fact of an assessment by the comptroller upon the stockholders of a national bank does not conclude such stockholders as to the validity of the debts to pay which the assessment is made, and they are entitled to their day in court upon that question before being required to pay the assessment in an action against them by the receiver. Where the defendants in such an action assert the invalidity of a judgment against the bank which is the basis of the assessment, the appropriate procedure would seem to be for them to file a bill in equity to determine the validity of such judgment, and to enjoin the action against them, giving bond for the payment of the judgment therein in case the injunction should be dissolved after hearing.-Moss v. Whitzel, 108 Fed. 579.

[f] (U. S. C. C., N. Y., 1871) A bill in equity was brought by an alleged assignee from a national bank of bonds deposited with the treasurer of the United States to secure its circulating notes, against the treasurer and the comptroller and a receiver of the bank, praying for a decree establishing

complainant's title, and requiring the treasurer and comptroller to pay over the surplus of such bonds to complainant. Held, that a demurrer should be allowed (per Woodruff, J.), because the court had no jurisdiction to grant the relief asked in respect to the treasurer and comptroller, and because the receiver had no concern in the subject-matter.-Van Antwerp v. Hulburd, Fed. Cas. No. 16,827 [8 Blatchf. 282].

[g] (U. S. C. C., Ohio, 1888) When the receiver of an insolvent national bank has been displaced by an "agent" appointed under the acts of congress in that behalf, it is proper practice to substitute, on motion, the "agent" as the plaintiff on the record in place of the "receiver," in a suit already commenced by the latter.-McConville v. Gilmour, 36 Fed. 277, 1 L. R. A. 498.

[h] (U. S. C. C., Ohio, 1889) A national bank received subscriptions to increase its capital stock, but before completing the proceeding, and before obtaining the approval of the comptroller, it became insolvent, and a receiver was appointed, who brought action to enforce the subscriptions. Held, that the receiver can assert no rights against the subscribers which the bank could not have asserted, and therefore, as no valid stock can issue to the subscribers, there can be no recovery.-Winters v. Armstrong, 37 Fed. 508. [i] (U. S. D. C., N. Y., 1876) Rev. St. § 721 [U. S. Comp. St. 1901, p. 581], makes state law applicable as rules of decision in trials at common law, in the federal courts, only where it is not otherwise provided by federal enactment; and the right of a receiver of a national bank to bring a suit in his own name to recover an assessment laid on stockholders, for the purpose of paying debts, grows out of Rev. St. § 5234 [U. S. Comp. St. 1901, p. 3507], and the state rules do not apply.-Stanton v. Wilkeson, Fed. Cas. No. 13,299 [8 Ben. 357].

II. NATURE AND FORM OF REMEDY-WHETHER IN EQUITY or at Law.

[a] (U. S. C. C. A., Colo., 1899) A suit by the receiver of an insolvent national bank against its officers and directors to compel restitution of funds unlawfully diverted by them is one to execute a trust, and involves an accounting as to trust funds, and hence is of equitable cognizance.-Cooper v. Hill, 36 C. C. A. 402, 94 Fed. 582.

[b] (U. S. C. C. A., Mich., 1899) The receiver of a national bank cannot recover from a stockholder, in an action at law, a sum received by him on a partial distribution of the capital of the bank, made and received in good faith during voluntary liquidation, when the bank was at the time solvent, and retained sufficient assets to pay all its liabilities, although it subsequently became insolvent.-Lawrence v. Greenup, 38 C. C. A. 546, 97 Fed. 906.

[c] (U. S. C. C. A., Ohio, 1900) The receiver of an insolvent national bank may maintain a suit in equity to enforce an assessment against stockholders, where such assessment is less than the full amount of their liability; and, where the question of law involved is common as to a number of the stockholders, and rests upon substantially the same facts, they may be joined as defendants, so as to prevent multiplicity of suits.-Bailey v. Tillinghast, 40 C. C. A. 93, 99 Fed. 801, affirming decree Tillinghast v. Bailey (C. C. 1897) 86 Fed. 46.

[d] (U. S. C. C., Cal., 1891) An assessment by the comptroller of the currency against the stockholders of a national bank may be collected by the receiver by an action at law against the stockholders.-Young v. Wempe, 46 Fed. 354.

[e] (U. S. C. C., Vt., 1899) A receiver of an insolvent national bank may maintain a suit in equity in any district against all the stockholders within the court's jurisdiction to recover back unearned dividends received by them, and unlawfully paid from the bank's capital when insolvent, on the ground that it is a suit to follow trust funds.-Hayden v. Brown, 94 Fed. 15.

III. JURISDICTION OF FEDERAL COURTS.

[a] Under Rev. St. § 563, subd. 4 [U. S. Comp. St. 1901, p. 456], which gives the district courts jurisdiction of "all suits at common law brought by the United States, or by any officer thereof, authorized by law to sue," the district court has jurisdiction of an action to enforce the liability of a stock