So far as appears, the claim of the insolvent for losses by a tender of the Alabama was within the act of Congress of June 28, 1874, and therefore probably this case is governed by Leonard v. Nye, 125 Mass. 455; Jones v. Dexter, 125 Mass. 469, 471. But it is unnecessary to stop at this point, because, whatever the original nature of the claim, the act of June 5, 1882, had been passed, and proceedings under it had been begun by the insolvent, before the dates when he filed his petition in insolvency and the plaintiff was made his assignee.
The insolvent act provides that “ the assignment shall vest in the assignee all the property of the debtor, real and personal,” etc. Pub. Sts. c. 157, § 46. When the sovereign power has established a claim against itself, or against a fund in its hands, and has provided a tribunal and all necessary machinery for its establishment and collection, such a claim is “ property ” within the meaning of the act.
If the claim is established in pursuance of what would have been an antecedent legal duty on the part of the sovereign but for its sovereignty, the proposition which we lay down follows a fortiori from decisions like Leonard v. Nye, Jones v. Dexter, ubi supra, and Comegys v. Vasse, 1 Pet. 193, that some claims against the sovereign will pass in bankruptcy or insolvency, although the act which recognizes and makes them effectual is not passed until after the assignment. These cases dispose of any general objection that claims against the sovereign cannot be legal rights in a strict juridical sense. Such claims are given all the incidents of property by law, although, since the continued recognition of them until they can be proved, and the final payment of them, depend upon the will of the sovereign, — that is, *11upon the law remaining unchanged, as in the usual case of claims against subjects, — such recognition and payment in this case depend upon the honor of the quasi debtor or trustee, and not upon a superior power, stranger to the undertaking.
The English courts, although they have hardly gone so far as the courts of this country, have treated as property within the English bankrupt act a pension granted on the retirement of a public officer, (possibly in pursuance of some sort of understanding at the time of his taking office,) which dependéd for its payment on an annual vote of a colonial legislature. Ex parte Huggins, 21 Ch. D. 85. In this case, it is suggested, and we agree, that it could not be doubted that bonds of a foreign or of the home government would be property.
If now the claim which the statute establishes, instead of being based upon some sort of consideration, is granted as a pure gratuity, as in Heard v. Sturgis, 146 Mass. 545, still, when granted, it is just as absolute a claim, it is to the same extent and in the same sense a legal claim, and it has the same security for being paid, as the other. It depends upon the will of the sovereign no more than the other. It is not like the case of an allowance depending for its continuance on the will of a private individual, who pays it, as in In re Wicks, 17 Ch. D. 70, or upon the discretion of a subordinate public officer, as in Ex parte Webber, 18 Q. B. D. 111.
It was argued that, by force of the U. S. Rev. Sts. § 8477, this claim could not be assigned in insolvency before it was allowed. Assuming that that section applies to claims like the present, (Stevens v. United States, February 26, 1883, in Rules, Opinions, &c. of Court of Comm, of Ala. Claims, Washington, 1885,) it does not apply to assignments in bankruptcy, although upon a voluntary petition, (Erwin v. United States, 97 U. S. 392,) and by parity of reasoning it does not apply to assignments in insolvency. If it should be suggested that, although property of the insolvent, it was not property “ which he could have lawfully assigned” in person, and therefore was not within the words of the State insolvent act, the answer is, that it is .clearly within the general intent of the Pub. Sts. c. 157, §§ 44, 46, and that it is within the specific words “rights of action for goods or estate, real or personal.” Jones v. Dexter, ubi supra.
*12It was suggested that we should reconsider the question of the constitutionality of the State insolvent law, on the ground of a recent decision of the Supreme Court of the United States upon the clause of the Constitution touching the regulation of commerce. Wabash, St. Louis, & Pacific Railway v. Illinois, 118 U. S. 557. We discover no indication in that case that the majority intended to disturb the decision in Ogden v. Saunders, 12 Wheat. 213, and the cases which have followed it. If what has been understood for sixty years to be the law, and what the Supreme Court of the United States has pronounced “settled and forever closed,” is to be overthrown, it must be done elsewhere than in this court. Baldwin v. Hale, 1 Wall. 223, 228. Boyle v. Zacharie, 6 Pet. 348; S. C. 6 Pet. 635, 643. Blanchard v. Russell, 13 Mass. 1, 16. Day v. Bardwell, 97 Mass. 246, 250. Barton v. White, 144 Mass. 281.
Finally, it was argued that this action could not be maintained against the present defendant. We see no ground for doubt. The plaintiff had no notice of the proceedings instituted by his insolvent, until the latter had got his judgment, and a draft for the amount was in the defendant’s hands. Then' the plaintiff demanded the draft, and was entitled to receive it. Quimby v. Carr, 7 Allen, 417. Cook v. Holbrook, 6 Allen, 572, 573. Cox v. Prentice, 3 M. & S. 344. The fact that the defendant subsequently advised the widow of the insolvent to take out administration in Washington, that she did so, and that he signed her bond, with an agreement that he should retain the draft as security, cannot better his case. It is asked, why, if the claim of the insolvent passed to the plaintiff, he cannot recover against the United States, notwithstanding a payment by them to the wrong person. The answer is, that it is settled that the effect of the judgment of the court was to appropriate a fund to the claim, and to transfer the claim to that fund, leaving the question of title open to subsequent litigation in the ordinary courts. The statute does not leave the United States subject to he charged a second time, any more than, on the other -hand, it makes the decision of the Court of Commissioners of Alabama Claims conclusive as to the person entitled to its bounty.
Judgment for the plaintiff.