Opinion of the Court, per POTTER, J.

—he was not a party to the defendants' judgment—and the defendants are not in a situation to defeat the plaintiff's action upon his rights.

Another point urged why the plaintiff should have been nonsuited is, that the engine in question was not in existence when Montgomery and Lund transferred their assets to the corporation. The undisputed evidence is, that the bed-plate and cylinder were in existence and were transferred among the assets. These were worth, at that time, $50 or $60. While the corporation as such was being carried on, about $15 of work was added to the engine; and after Montgomery. commenced again in his own name, he completed it. It was therefore the subject of levy, upon execution, by a creditor of Montgomery, upon the facts as found by the jury. So, too, it is urged that the plaintiff's claim was against the firm of "Montgomery & Co.," as represented by "Montgomery and Garrabrant," and not against "Montgomery & Co.," as represented by "Montgomery and Lund," who made the transfer, to the corporation. This also appears to be true as a matter of fact; but the finding of the jury still is, in effect, that Montgomery and Lund made the transfer, to hinder, delay and defraud their creditors; that Montgomery's interest in the engine, consequently, was always the subject of levy by his creditors, and the same answer again returns. Neither Lund nor Garrabrant are parties here to complain, and the defendants are not in condition to defend the rights of those persons.

The history of this case shows, that besides four trials at circuit, and four reviews in the Supreme Court, it has been twice before in this court. On the last review of it in this court, the learned judge who wrote the only opinion that we have seen, among other things, said: "If the Montgomery & Co., whose creditors were intended to be defrauded, and for whose benefit the business of the corporation was carried on, was that composed of Montgomery and Lund, the plaintiff was not a creditor of that firm; if it was the firm of Montgomery & Garrabrant, then that firm, as such, had no interest in the property transferred to the corporation, nor was it in existence so as to be entitled to the profits of the business."

The

Opinion of the Court, per POTTER, J.

defendant's counsel asked the judge, at the last trial, so to modify his charge, as to adopt the language above cited from the opinion written in this court. His honor refused so to charge or modify, and the defendant excepted. In this refusal, the learned judge, at the circuit, was clearly right. The facts upon the last trial were not only changed, so that the charge as requested would have been for that reason inappropriate, but the proposition of the learned judge, who wrote the opinion from which the citation is made, was not adopted by this court as law, and the case was sent down for a new trial upon one, and an entirely different proposition from that above cited.

We have thus disposed of all the points raised in the case, but that of an exception taken to the ruling of the judge, on the admission of evidence upon a question put to the witness, Reeve, the payee in the note upon which the plaintiff's judgment was obtained. The question was, "State what representations Montgomery made to you, when you were about to become a partner, about the solvency of the firm?" To this there was a general, but no specific objection, and the objection was overruled, and the defendant excepted. Was the admission of this evidence proper for any purpose? Reeve was one of the first copartners of Montgomery. He had purchased an interest in the business, as was claimed, upon Montgomery's representations of his solvency, and of the success of the business. To prove Montgomery's condition of past, continued and present insolvency, and the various expedients resorted to by him to obtain means from others, from time to time, to sustain him in business, for the purpose of establishing a fraud, or a succession of frauds, connected with, and culminating in the fraud which was then the main issue to be tried, I think the admission of this evidence was not error. While fraud is to be proved, and not inferred, it may be proved by circumstances, and by a train of connected circumstances leading to the main result. Upon the whole case, I am not able to see any error that requires it to be sent back for a new trial. I think the judgment should be affirmed.. Judgment affirmed.

Opinion of the Court.

Reversing 12 abb, 81, 8.0, 2 How !!

BANK OF GENEVA, Appellant, v. MORTIMER F. REYNOLDS,
Respondent.

ACTION upon an undertaking given by defendants for the appearance of one William Breck, who had been arrested on a capias ad respondendum. The undertaking was in the usual form. After action commenced, the defendants at Special Term, moved for an order allowing them, on payment of costs, to surrender the said Breck in discharge of their liability as bail for his appearance. The court granted the motion and made the order prayed for. The plaintiff appealed to the General Term, where the appeal was dismissed on the ground, that the granting of the order rested in the discretion of the court at Special Term. The plaintiff appealed to this court.

HELD, that the General Term erred in dismissing the appeal, even though the order appealed from was clearly in the discretion of the court; inasmuch as the order was one affecting a substantial right, in effect determining the action, and preventing a judgment from which an appeal might have been taken. The order of the General Term was reversed.

CASES

DETERMINED IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

At the September Term, A. D. 1865.

Reversta 3 944 573

THE CITY OF UTICA v. G. CLARENCE CHURCHILL and others.

ADAM VAN ALLEN V. MICHAEL A. NOLAN and others, THE BOARD OF ASSESSORS OF THE CITY OF ALBANY.

CHAUNCEY F. WILLIAMS and others v. THE SAME.

The interests of the stockholders in the National Banks, organized under the act of congress of June 3, 1864, are legally taxable for State, county and municipal purposes pursuant to the laws of this State.

The objection that these moneyed institutions are instrumentalities of the general government for the execution of its constitutional powers, and are exempt from State taxation upon the principle by which the late Bank of the United States was adjudged to be exempt, does not apply where, as in these cases, the tax, instead of being assessed against the corporation, is against the individual stockholders.

The last position was authoritatively adjudged by the Supreme Court of the United States in the case of Osborn v. The Bank of the United States (9 Wheat., 738).

It is moreover expressly enacted by the 41st section of the aforesaid act of congress, that these stockholders may be taxed under State authority. The stockholders are not exempt from taxation though the capital of the banks be invested in the securities of the public debt of the United States. Taxes are imposed upon the owners of property in respect of or on account of such ownership. Hence, where a certain kind of property is declared by the Constitution or by law to be exempt from taxation, the exemption is conferred upon such owners; but the stockholders are not in a legal sense the owners of the securities held by the bank. Their interest is of a collateral nature, and is not the interest of an owner.

Statement of case.

The 41st section of the congressional banking act, declaring the stockholders subject to State taxation, applies, though the capital be invested in national securities; for it is a condition to the existence of these banks that they shall hold a large amount of those securities.

Notwithstanding the principle that national stocks are generally exempt from State taxation, it is constitutionally competent for congress to negotiate a loan under conditions that the holders of the script shall be subject to taxation by the State of which they are citizens. This has been done by the said 41st section, so far as stockholders in the national banks can be considered as the owners of the public stock held by such banks.

The act of the legislature of this State (Laws 1865, p. 172), subjecting the stockholders of national banks to taxation at the place where the bank is located, applies to such banks organized under the banking act of congress of 1863, equally with those organized under the act of congress of 1864. By the laws of this State existing prior to the act of the legislature above mentioned, stockholders in national banks could not be taxed except in the town or ward in which they resided.

The limitations prescribed in the before mentioned 41st section, were not exceeded by the above mentioned act of the legislature of this State.

THE questions involved in this action were brought to a hearing in the first instance at a General Term of the Supreme Court, in the fifth judicial district of this State, upon a case submitted in pursuance of the provisions of section 372 of the Code of Procedure. The points in controversy being substantially whether or not certain taxes imposed by the city of Utica upon the stockholders of the Second National Bank of Utica, upon the several shares held by the respective stockholders in such bank, were legally imposed, and whether payment of the same could be legally enforced.

The bank is situated in the first ward of the city of Utica, and several of the stockholders were assessed in said ward, whether residing therein or elsewhere. At the time the assessment was made, the defendant Churchill resided in the first ward; Brayton resided in the city of Utica, but not in the first ward; Walcott resided in the county, but out of the city and ward; Foot resided in the State, but out of the ward, city and county; and Miller resided out of the State, and at Washington, D. C.

The cause was argued at the January Term, 1865, and at April Term, 1865, and judgment was rendered against the defendant Churchill only in the first of the above cases, and