This appears to be a proper case for a bill-of interpleader. For, upon the case stated in the complainant’s bill, it is a matter of doubt to which of the defendants the bill of exchange in question actually belongs! The complainants therefore cannot safely pay it to either.
The case of Abraham v. Plestoro, (3 Wend. Rep. 538,) in*395deed decided that an assignment under the English bankrupt laws could not have the effect to transfer property which was not within the territorial jurisdiction of the English government at the time of such assignment, even as against the bankrupt himself; where the assignment had not been executed by him. But that was only in accordance with a previous decision of the supreme court of the United States, and of several decisions of different state courts, that foreign bankrupt laws have no extra territorial force to transfer property which was not within the jurisdiction of the government under whose laws such transfer was claimed, at the time of the alleged transfer. And the only difference between this court, and the majority of the members of the court for the correction of errors,“in the case of Abraham v. Plestoro, was upon the question whether the property in controversy was constructively within the jurisdiction of the English government at the time the proceedings in bankruptcy were instituted and the provisional assignee appointed. For Senators Stebbins and Maynard, who delivered opinions in favor of the reversal of the order of the chancellor in that case, conceded the point that if the property had been within the operation of the English bankrupt laws, even constructively by being on board of a British vessel upon the high seas, the title to it would have passed under the operation of those laws.
Here the assignee in bankruptcy claims the property in this bill of exchange, upon the ground, as he alleges, that at the time of the issuing of the commission of bankruptcy, and at the time of his appointment as assignee, it was in fact within the British dominions, in the hands of the bankrupt himself or of his agent. If this claim is well founded in fact, I cannot say that the assignee in bankruptcy is not entitled, in equity at least, to recover the amount due upon this bill of exchange, in preference to the bankrupt himself, or any other person except a bona fide holder of the same for a valuable consideration and without notice of the rights of the assignee. For the legal presumption is that the bill was drawn upon funds in the hands of the drawees, who were in London ; so that the bill itself, as *396well as the fund appropriated for its payment, were both within the operation of the bankrupt law.
On the other hand, if the bill of exchange as well as the bankrupt himself were within the United States at the time of the issuing of the commission of bankruptcy, and at the time of the appointment of the assignee, I do not see any thing that can protect the complainant from a recovery against them in a suit instituted here, either by the bankrupt himself, or by any other person to whom he has transferred it either with or without consideration. So if it actually belonged to the defendant Speer, at that time, in whose name it was drawn, and not to Bell the bankrupt, Speer may recover the amount thereof from the complainants, either by a suit in his own name, or in the name of Hazard as his endorsee, for his use ; if he has thought proper to transfer it to Hazard, for that purpose. And a suit having been brought in the name of the defendant Hazard, he is also a proper party to this bill of interpleader; whether such suit is brought for his own benefit, or for the benefit of Speer as he alleges, or for the benefit of the bankrupt himself, as is probably the fact.
The counsel for the appellants is in an error in supposing that the complainant’s bill shows upon its face that the bill of exchange in question belonged to the Bank of British North America in Montreal, upon the ground that it was purchased with funds fraudulently and criminally obtained from that bank by R. C. Bell. The fact that it was purchased with funds thus obtained is not charged in the complainants’ bill of complaint. They merely state that an agent of that bank arrived at New-York and gave them notice to that effect, and that they must not pay the bill of exchange, or the price thereof, to R. 0. Bell; in consequence of which notice they were induced to write to the drawees not to accept or pay such bill.
The order appealed from is not erroneous; and it must theiefore be affirmed with costs. The appellants must pay the costs, and put in their respective answers, within the time allowed for that purpose by the order, or the complainants’ bill is to be taken as confessed against them.