(concurring). It seems to be agreed that the right of plaintiff to recover must be based upon the fact that after the bank had committed an act of insolvency, or when in contemplation thereof, the payment sought to be recovered back was made with a view to prevent the application of its assets in the manner prescribed in the banking act, or with a view to the preference of one creditor over another. We may reasonably say that *601the words “with a view to” mean with the intent to or design of pursuing a particular' course, and that this intent or design means the intent of the bank or officer making the payment, and not the recipient of the payment. In this case it may be said that there was a run on the bank, after the act of insolvency, and after a condition of things existed showing that the cashier should have known that the bank was in an insolvent condition; and, there being a run on the bank, and the defendant having asked to withdraw his deposits, thereby forfeiting interest upon the certificates, it may be presumed that he knew of the run, and feared that the bank would fail, and therefore took the precaution to withdraw his money. It appeared that, during such run, the cashier persuaded some depositors not to draw out their money at that particular time, while others were paid; and that in one instance, at least, he gave as an excuse the closeness of, the money market. It is said that the effect of this was to prevent the application of the assets of the bank in the manner prescribed by law, and to prefer such creditors as were paid to those who were not; that the cashier necessarily knew it; and that it necessarily follows that the payments made were made with such intent or view, and consequently the payment was recoverable .under the statute.
If this reasoning is correct, there is no necessity for saying that the jury should be permitted to infer that payments were made with such view. The court should have so stated, and directed them to find such fact. From such a rule it would inevitably follow that the refusal of a payment, or the persuasion of a depositor to forego his right to draw out his funds, after an act of insolvency, or after knowledge by the officer that the bank was insolvent, would invalidate every payment subsequently made, no matter how long a period intervened between such refusal and the closing of the bank doors. New depositors, whose dealings began by a deposit after the refusal, and in ignorance *602of it, would be in no better situation than others; and, under the application of this rule, the longer the bank might be able to take deposits the larger the dividends that could subsequently be declared. A man who was turning over a small capital, by depositing daily and drawing in the course of his • business, might become liable to the bank for an amount several times as large as the sum that he was actually using in his business, and perhaps more than he was worth. If this is the rule, where is there necessity or opportunity for the application of the doctrine that “payment in the ordinary course of business, though after actual insolvency of the bank, is good, its condition being known to the officers, but not to the payee?” See 2 Morse, Banks, § 625; Dutcher v. National Bank, 59 N. Y. 5; Boone, Banking, § 301. If it be the rule, it would seem to follow that, as soon as a bank has committed an act of insolvency,—e. g., asked a depositor to forego drawing his money out, while others are paid,—or when the officers of the bank have reason to believe that they must, or even may ultimately be compelled to, close the bank and go intp liquidation, it is its duty to refuse payment at once. No matter how much faith it may have in its ability to weather the storm, it must know that the validity of subsequent payments to its depositors must depend on the success or failure of the attempt to do so. And it would seem equally true that when a dep ositor has reason to doubt the solvency of the bank, or knows of the coihmission of a technical act of insolvency, it is.his duty to avoid drawing upon his deposit, no matter what his necessities. As a law-abiding citizen, recognizing the duty of the bank not to pay, he must sit idly by, and see other less conscientious depositors depleting the bank, with the knowledge that, if the bank shall ultimately fail, his dividend is being lessened by every payment. It would put an end to all legitimate attempts by banks to withstand financial storms,.and, by obtaining forbearance, maintain payments and credit until securities could be converted *603into money, thus avoiding sacrifices which would be fatal. It is rare that the “quick assets” of a bank are adequate to pay all of its obligations, especially in times of financial distress; and the consequences of the doctrine contended for would be disastrous and far-reaching. I am of the opinion that this statute should be given no such construction, and that, before it can warrant the collection from a depositor who has received payment over the counter in the usual manner (i. e., in the due course of business), it must at least appear that there was a specific design to accomplish one of the objects mentioned, viz., to favor a particular creditor, or to withdraw its funds from the control of the law, and that it is not enough that we shall be able to say that the effect of the act is to prefer the creditor, of to so withdraw the amount paid,—facts which are in themselves incidental and self-evident.
In the case of Dutcher v. National Bank, 59 N. Y. 9, which was a case similar to this, it is said:
‘ ‘ How can a payment or sale made in the ordinary and usual course of business by the company, one which would have been made had the company been prosperous and solvent, be said to have been made in contemplation of insolvency, although the company was at the time insolvent, which was known to its officers ?• The act being done in the ordinary and usual course of business by the company $ uninfluenced by the state of its pecuniary affairs, it cannot be said to have been done in contemplation of any particular condition of such affairs.”
And in answer to a contention similar to that made in this case, it is there said:
‘ ‘ Section 9 [1 Rev. Stat. 591 ] declares invalid all conveyances, payments, etc., made by the corporation when insolvent, or in contemplation of insolvency, with intent of giving a preference to a particular creditor over other creditors. This, it will be seen, does not include a payment in the usual course of business, like the one in the present action. It was held in Brouwer v. Harbeck, *6049 N. Y. 589, that a payment made by an insolvent corporation, or one made in contemplation of insolvency, where the intention of the corporation was to give a preference to a particular creditor, was void, irrespective of the questions whether the insolvency was open and notorious, and whether the party receiving the payment knew of the insolvency, or this particular motive of the corporation in making the payment. A payment made with a view of giving a preference to a particular creditor is one rarely, if ever, made in the usual course of business. In such a case the creditor will usually be sought out by the debtor, and payment made by an unusual transfer of assets, as in the case of Robinson v. Bank of Attica, 21 N. Y. 406.”
The distinction is illustrated by the case of Hayes v. Beardsley, 136 N. Y. 299, cited by Mr. Justice Moore, where, as in this case, the depositor (who, by the way, was a director of the bank) held three certificates, which were paid,—two by assignment of .paper, and one by payment over the counter. The cashier knew, but concealed, the fact of insolvency. It was held that the complaint was properly dismissed, because the plaintiff failed to show that the payments were made in contemplation of— i. e., with a view to—insolvency, or to prevent the application of the bank assets as prescribed in the act. And in a note to Elmira, Savings Bank v. Davis, 25 L. R. A. 548 (142 N. Y. 590), it is said that an act prohibiting preferences does not forbid transfers of securities for a valuable consideration, under q. reasonable expectation of obtaining relief, nor transfers contracted for long prior to insolvency to secure loans being made. See cases there cited. Several other cases to be found cited in the opinion of Mr. Justice Moore recognize this doctrine. See Haas v. Whittier, 97 Cal. 411.
The case of Tiffany v. Lucas, 15 Wall. 410, 421, arose upon a sale made within six months of a bankruptcy. Lucas purchased from Darby, in April, 1869, a valuable piece of property in St. Louis, for the con*605sideration of $200,000. On the 12th day of July following, Darby was declared a bankrupt, and the' suit was brought to avoid the sale to Lucas, on the ground that it Avas in contravention of the 35 th section of the bankrupt act. This section reads as follows:
“If any person, being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, or delay the operation and effect of, or evade any provision of this act, the sale, assignment, transfer, or conveyance shall be void. * * * And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. ”
Mr. Justice Davis, in delivering the opinion of the court, said:
“There would seem to be no difficulty in ascertaining the meaning of Congress on the subject embraced in, this section in its application to this case. Clearly, all sales are not forbidden. It would be absurd to suppose that Congress intended to set the seal of condemna-. tion on every transaction of the bankrupt which occurred within six months of bankruptcy, without regard to its character. A policy leading to such a result would be an excellent contrivance for paralyzing business, and cannot be imputed to Congress without an express declaration to that effect. The interdiction applies to sales for a fraudulent object, not to those with an honest purpose. The law does not recognize that every sale of property by an embarrassed person is necessarily in fraud of the bankrupt act. If it were so, no one would know with whom he could safely deal, and, besides, a person in this condition would have no e'ncouragement to *606make proper efforts to extricate himself from difficulty. It is for the interest of the community that every one should continue his business, and avoid, if possible, going into bankruptcy; and yet how could this result be obtained if the privilege were denied a person, who was unable to command ready money to meet his debts as they fell due, of making a fair disposition of his property in order to accomplish this object? It is true, he may fail, notwithstanding all his efforts, in keeping out of bankruptcy, and in that case any sale he has made within six months of that event is subject to examination. If it shall turn out on that examination that it was made in good faith, for the honest purpose of discharging his indebtedness, and in the confident expectation that by so doing he could continue his business, it will be upheld. On the contrary, if he made it to evade the provisions of the bankrupt act, and to withdraw his property from its control, and his vendee either knew, or had reasonable cause to believe, that his intention was of this character, it will be avoided. Two things must concur to bring the sale within the prohibition off the law,—the fraudulent design of the bankrupt, and the knowledge of it on the part of the vendee, or reasonable cause to believe that it existed.”
In Utley v. Smith, 24 Conn. 310 (63 Am. Dec. 163), a statute containing similar provisions was under discussion. It was there said by Mr. Justice Ellsworth that—
“We construe the words of the statute in a more specific sense, to wit, the closing of business by an avowed and deliberate failure. So Judge Story construed the word ‘bankrupt,’ under the bankrupt law of the United States, in Arnold v. Maynard, 2 Story, 358. He says it describes one acting in contemplation of actually stopping his business because he is insolvent, and utterly incapable of carrying it on. But, not to enlarge on this point, we pass to the second, which, in our view, is entirely decisive of the case. We mean the words ‘in view.of insolvency.’ What meaning shall we attach to these words? They appear to be very plain and pointed, and we cannot doubt that they are important, and that they fully disclose the object which the legislature had in view in the law. No debtor, actually failing, shall be allowed to convey away ‘his property to make preferences among his creditors. Any such conveyance, *607made with a view to insolvency, is contrary to the statute, and is utterly void. This is what these words mean, and they mean no more. Actual insolvency is not enough, for this does not necessarily prove any particular view of the insolvent in an ordinary sale or mortgage. His insolvency may have nothing at all to do with it, and be neither the cause nor the. occasion of it. It is but a circumstance to be taken into the account in weighing motives; and, although it may work a kind of preference, yet if this was not intended by the parties, if the quo animo was wanting, and the conveyance was bona fide, and in the usual course of business, the conveyance is not contrary to the language or spirit of the statute.”
This case contains an interesting review of the English cases in this connection, and also the case of Jones v. Howland, 8 Metc. (Mass.) 377 (41 Am. Dec. 525), which, is in harmony with the view there taken.
Upon this understanding of the law, there is, in our opinion, nothing in the evidence from which the judge would have been justified in permitting a jury to conclude that the prohibited view, intent, or design existed. It is as consistent with its absence as presence, and therefore I concur with my Brother Moore that the judgment should be affirmed.