The principal question is, whether, under the circumstances of this case, Laird, the original plaintiff, has a right to a transfer from the bank, of the fifty shares of its capital stock, standing in the name of Patton, without paying the acceptance of Patton; or, in other words, whether Laird has a priority of lien upon these shares. By the 11th section of the act of incorporation, (act of 18th February, 1811, ch. 86.,) it is enacted, "That the shares of the capital stock, at any time owned by any individual stockholder, shall be transferrable only on the books of the bank, according to such rules as may, conformably to law, be established in that behalf, by the president and directors; but all debts actually due and payable to the bank (days of grace for payment being passed) by a stockholder, requesting a transfer, must be satisfied before such transfer shall be made, unless the president and directors shall direct to the contrary." The certificate, issued to Patton for the 50 shares held by him, (which is in the usual form,) declares the shares to be "transferrable at the said bank, by the said Patton, or his attorney, on surrendering this certificate." No person, therefore, can acquire a legal title to any shares, except under a regular transfer, according to the rules of the bank ; and if any person takes an equitable assignment, it must he subject to the rights of the bank, under the act of incorporation, of which he is bound to take notice. The president and directors of the bank expressly deny that they have waived, or ever intended to waive, the right of the bank to the lien, for debts due to the bank, by the form of the certificate, and

1817.

Union Bank

V.

Laird.

1817.

Union Bank

V.

Laird.

that they ever directed any transfer to be made to
Patton which should stipulate to the contrary. Un-
der such circumstances, it must be held, that the
shares are responsible for the debts due to the bank.

The next inquiry is, whether the bank has done
any thing to deprive itself of the lien upon the
shares for the acceptance of Patton, since the same
became due, and to let in the equitable title of the
plaintiff. The acceptance is not yet paid ; and no-
thing has been done by the bank affecting its rights,
unless the subsequent taking of security for the ac-
ceptance from Smith, can be construed so to do.
Certainly the bank had a right to require additional
security from the endorser of the acceptance; and
it cannot be perceived upon what principles this can
be construed an extinguishment of its lien upon the
shares of the acceptor. A creditor may lawfully
take and hold several securities for the same debt
from his joint debtors; and he cannot be compella-
ble to yield up either until his debt is paid. And in
this case, there is no want of equity in holding the
shares of Patton, who is the immediate debtor to
the bank, liable in the first instance, rather than re-
sorting to the security of an endorser, who is only
liable upon the default of the acceptor.

The decree of the circuit court must, therefore, be reversed, and the bill be dismissed.

Decree accordingly.

1

(PRACTICE.)

The UNITED STATES V. BARKER.

A writ of error does not lie to carry to this court a civil cause which has been carried from the district to the circuit court by writ of

error.

The United States never pay costs.

1817.

The United
States

V.

Barker.

Mr. Baldwin, for the plaintiffs in error, moved to March 15th dismiss the writ of error in this case, as having been improvidently allowed, the cause having been carried up from the district to the circuit court of New-York by writ of error; and, according to the former decisions of this court, a writ of error does not lie to carry to this court a civil cause which has been carried from the district to the circuit court by writ of error."

Mr. D. B. Ogden, for the defendant, moved for

costs.

[Mr. Chief Justice MARSHALL. The United States never pay costs.]

Writ of error dismissed without costs.

a United States v. Goodwin, 7 Cranch, 108. United States v. GorGon, Id. 287. The United States v. Ten Broek, ante, p. 248.,

T. brought a suit against C. in the circuit court of Pennsylvania,
which was referred to arbitrators; an award was made in favour
of T., and a judgment nisi entered on the 20th May, 1805; ex-
ceptions were filed, overruled, and judgment finally entered on
the 15th of May, 1806. On the 22d May, 1805, C. executed a
conveyance of all his estate to trustees, for the payment of his
debts, at which time he was indebted to the United States, on
several duty bonds which became due at different periods subse-
quent to the 22d May, 1805. Suits were brought on the bonds as
they severally became due, and judgments obtained, and execu-
tions issued, under which a landed estate belonging to C. was
levied upon and sold. T. brought an action against S., (the mar-
shal of the district,) who levied the executions, to recover so
much of the funds in his hands as would be sufficient to satisfy
T.'s judgment. In this suit the jury found a special verdict that
C. was insolvent on the 20th May, 1805, but that it was not no-
toriously known; and the parties agreed that on the 22d May,
1805, he was unable to satisfy all his debts, and that this fact
should be considered part of the special verdict.

Held, that the word insolvency, mentioned in the duty act of 1790,
ch. 35. sec. 45.; and repeated in the act of 1797, ch. 74. sec. 5.,
and of 1799, ch. 128. sec. 65. means a legal insolvency, which,
whenever it occurs, the right of preference arises to the United
States as well as in the other specified cases to which the acts of
1797 and 1799 have extended the cases of insolvency.
But if before the right of preference has accrued to the United
States, the debtor has made a bona fide conveyance of his estate
to a third person, or has mortgaged it to secure a debt, or if his
property has been seized under an execution, the property is de-
vested out of the debtor, and cannot be made liable to the United
States.

A judgment gives to the judgment creditor a lien on the debtor's
lands, and a preference over all subsequent judgment creditors.
But the law defeats the preference in favour of the United
States in the cases specified in the act of 1799, ch. 128. sec. 65.

ERROR to the circuit court for the district of Pennsylvania.

The plaintiffs in error instituted a suit in the circuit court for the district of Pennsylvania against William Crammond, which, by the agreement of the parties, and the order of the court, was referred to arbitrators. An award was made in favour of the plaintiffs, and a judgment nisi was entered on the 20th of May, 1805. Exceptions were filed and overruled; and a judgment was finally entered on the 15th of May, 1806. On the 22d of May, 1805, Crammond executed a conveyance of all his estate to trustees, for the payment of his debts, at which time he was indebted to the United States, on several duty bonds, which became due at different periods subsequent to the 22d of May, 1805. Suits were instituted on these bonds as they severally became due, and judgments were obtained and executions issued, under which a landed estate belonging to Crammond, called Sedgely, was levied upon and sold.

The plaintiffs, considering this property as being bound by their prior judgment of the 20th of May, 1805, and that they were entitled to be first satisfied out of the money in the hands of the defendant, (the marshal of the court,) which he had raised under the above executions, issued in the name of the United States, they brought this action to recover so much of those funds as would be sufficient to satisfy their judgment.

Upon the trial of the cause in the circuit court, the jury found that Crammond was insolvent on the

1817.

Thelusson

V.

Smith.