On petition for rehearing, the following opinion was delivered by Field, C. J.—Cope, J. concurring.
The points made by the Appellant, on the rehearing, are as follows: 1st. That the plaintiffs are not authorized to maintain the action by virtue of their appointment as receivers. 2d. That the letter of credit was exhausted before the bill in suit was drawn; and, 3d. That Page, Bacon & Co. were not innocent holders of the bill.
The first point we noticed in our former opinion. We there stated that the finding of the Court furnished an answer to the objection, and that we must presume, in the absence of anything to the contrary in the record, that the finding was based upon proper evidence. There is in fact nothing in the statement embodied in the transcript which calls its correctness in question; and there is nothing in the complaint disclosing anything in the relation which the plaintiffs bear to the assets of Page, Bacon & Co. different from that held by the receivers of an insolvent ap*456pointed in an equity suit brought by a judgment creditor. As receivers, they were required to take possession of the assets, and by order of the Court, were authorized to institute suits for their collection. The 39th Section of the Insolvent Act only declares that no assignment, except in pursuance of its provisions, shall-be legal or binding upon creditors. The case of Cheever v. Hays, (3 Cal. 471,) only decides that the section applies to volúntary assignments for the benefit of creditors, and is- not limited to assignments by insolvents applying for the benefit of the Act, as was contended on the argument. The case of Adams v. Woods et al. (8 Cal. 152,) only decides that an assignment to a receiver in a suit to dissolve a copartnership, cannot operate so as to prevent a creditor of the firm from pursuing his remedy at law before decree, and thereby acquiring a preference or lien upon the partnership assets. There are, it is true, expressions in the opinion in this last case, which, disconnected from the facts, would lead to the inference that a transfer to a receiver of the effects of a defendant, under the order of the Court, would be regarded as an assignment prohibited by law, and absolutely void. But the statute does not, neither do the decisions, when considered with the facts upon which they were rendered, declare such assignments to be absolutely void, but only void as against the claims of creditors. In the present case no question of the kind arises. Ho creditors of Page, Bacon & Co. are claiming the bill in suit, or its proceeds against the receivers.
The second point is without support from the evidence. Page, Bacon & Co. expressly refused to cash bills drawn upon the letter of credit, assigning as a reason, that the bills authorized by it had too long to run. They, however, after some negotiation, sold their own sight bills on Boston, to Clifford & Co. upon the promise of the latter to pay the same within three or four weeks, retaining the letter of credit as collateral security. This letter constituted in fact no security at all, though, as it would appear, Page, Bacon & Co. thought otherwise. Its possession conferred no right to any claim against the defendant, either in law or equity. It remained in the bank unrevoked and unused, until the bill in suit was drawn against it.
The third point- made by the Appellants is answered by the finding of the Court. The case was tried without a jury, and *457the Court expressly finds, that Page, Bacon & Co. were Iona fide holders and owners of the bill, and that they received it for a valuable consideration, on the faith of the letter of credit. The statement does not purport to set forth all the evidence in the case; and even assuming that it does, the evidence is not so clearly and palpably against the finding as to justify any interference by this Court. The statements of the only witness whose testimony is given, are not very consistent with each other, or with the 'contents of the subsequent letter written by Clifford & Co. to the fiefendant, informing him of the drawing of the bill.
Judgment affirmed.