This is a suit by a trustee in bankruptcy to recover certain securities alleged to have been transferred to the defendant bank by way of preference. The plaintiff had a judgment in the district court (200 Fed. 287, 299) and in the circuit court of appeals (120 C. C. A. 92, 201 Fed. 664). Both parties appeal; the plaintiff, upon a subordinate question as to its right to elect damages instead of a return of the securities.

The case arose upon what is known in New York as a clearance loan. Brokers need large sums to clear or pay for the stocks that they receive in the course of the day, and as the stocks must be paid for before they are received and can be pledged to raise the necessary funds, these sums are advanced by the banks. They are returned later on the same day by making deposits to the borrower's account and drawing a check to the order of the bank. Perhaps such a general course of dealing might be arranged so as to give a lien on the loan or its proceeds until payment, but the question whether such a lien has been created rarely, if ever, has arisen, the whole business being finished in a few hours. It is, however, the main issue in this case.

The bankrupts were brokers in partnership, and at 10 o'clock on January 19, 1910, had assets exceeding their liabilities by nearly half a million dollars. These assets consisted largely in the stock of a coal and iron company in which there was a pool. Before 12, there was a break in the market, the stock went down, and at about noon the suspension of the firm was announced. A petition in involuntary bankruptcy was filed at 10 minutes after 4 on the same day. At about 10, the bank made a clearance loan to the bankrupts of $500,000 in the usual way, to enable them to meet their current obligations and to get the stocks deliverable on that day, the bank receiving demand notes, and both parties acting in good faith. The sum was credited in the deposit account of the firm, in addition to $54,319.98 already there, and soon after the bank certified and subsequently paid checks amounting to $535,920.74. During the day the firm made deposits which are not in question, but there remained due upon the loan $166,166.69. Officers of the bank, noticing the drop in the stock, went to the firm, demanded payment or securities to make good the obligations to the bank, and were told of the suspension and that a petition in bankruptcy would be filed. After two hours' discussion the securities in queston were delivered between 2 and 3 P. M., but the officers were told that the delivery was a preference. Some of the securities bore no relation to the loan; others, and it may be assumed for purposes of argument, most, had been released by the money thus obtained.

In dealing with transactions of this kind we may go far in giving them any form that will carry out the mutually understood intent. Sexton v. Kessler & Co. 225 U. S. 90, 96, 97, 56 L. ed. 995, 999, 1000, 32 Sup. Ct. Rep. 657. But if the intent was doubtful or inconsistent with the legal effect of dominant facts, it must fail. For instance, apart from possible exceptions, a man cannot retain a domicil in one place when he has moved to another, and intends to reside there for the rest of his life, by any wish, declaration, or intent inconsistent with the dominant facts of where he actually lives and what he actually means to do. Dickinson v. Brookline, 181 Mass. 195, 92 Am. St. Rep. 407, 63 N. E. 331. In the present case it is agreed that it was expected and understood that no portion of the clearance loan was to be used for any purpose other than to clear securities. But, on the other hand, by consent of the bank, as it seems, the loan was put into the general deposit account, which was drawn upon for general purposes; at least, to the extent of the balance above the loan; the securities released were not kept separate, but were used like any other; and no separate account was kept of money received from deliveries of stock so released. What happened as between these parties was simply that all moneys received in the course of the day, from whatever source, went into the firm's deposit account with the bank. So that, even if we take it, as a corollary of what was understood, that the use of the clearance loan was expected to enable the firm to repay the loan, it does not appear to have been expected that the proceeds should be appropriated specifically to that end, but simply that the addition of such proceeds to the general funds of the firm would enable the latter to pay within the time allowed. This is the view of the facts taken by the master and both of the courts below. They also found that an attempt to give the matter a different complexion by custom had failed; and if we went behind their findings we should take the same view.

A trust cannot be established in an aliquot share of a man's whole property, as distinguished from a particular fund, by showing that trust moneys have gone into it. On similar principles a lien cannot be asserted upon a fund in a borrower's hands, which, at an earlier stage, might have been subject to it, if, by consent of the claimant, it has become a part of the borrower's general estate. But that was the result of the dealings between these parties, and it cannot be done away with by a wish or intention, if such there was, that alongside of this permitted freedom of dealing on the part of the bankrupts, the security of the bank should persist. It is not like the case of property wrongfully mingled with general funds and afterwards traced. All that the parties agreed, either expressly or by implication, was that the debt incurred at 10 o'clock should be paid by 3. Some banks seem to have required the dealing to be conducted on the footing of a fund identified and subject to a trust at every step; but between these parties there was no attempt to follow a specific fund through a series of changes until it was returned. See Dillon v. Barnard, 21 Wall. 430, 22 L. ed. 673.

As all trace of the bank's money was lost when it entered the stream of the firm's general property, there can be no right of subrogation. Neither can a claim be upheld on the ground that there was no diminution of the bankrupt's assets, or that the transaction should be regarded as instantaneous and one. The consent to become a general creditor for an hour, that was imported, even if not intended to have that effect, by the liberty allowed to the firm, broke the continuity and established the loan as part of the assets. No doubt many general creditors have increased a bankrupt's estate by their advances, but they have lost the right to take them back. Time sometimes can be disregarded when it is insignificant. But in this case half the time between the loan and the transfer of securities sufficed to change the position of the borrowers from a fortune of half a million to a deficit of double that amount.

In both Gorman v. Littlefield, 229 U. S. 19, 57 L. ed. 1047, 33 Sup. Ct. Rep. 690, and Richardson v. Shaw, 209 U. S. 365, 52 L. ed. 835, 28 Sup. Ct. Rep. 512, 14 Ann. Cas. 981, in addition to the personalty of the holder there was also a specific stock, which identified the fund relied upon and separated it from the general mass of the estate, Hurley v. Atchison, T. & S. F. R. Co. 213 U. S. 126, 53 L. ed. 729, 29 Sup. Ct. Rep. 466, stood on the peculiar facts of the case, which were held to point to an identified res and give an immediate claim against it. The case established no general proposition contrary to what we now decide.

The suggestions that it does not appear that the bankrupts intended to give a preference, or that the bank had reasonable cause to believe that it was obtaining one, hardly need answer. The bank did not confine its demand to proceeds of the loan, but asked for and obtained securities without regard to their source. It was notified in terms that it was receiving a preference and that the firm was going into bankruptcy. If this was not sufficient notice, it is hard to imagine what would be enough.

The cross appeal depends upon the frame of the bill and effect of an agreement between the parties. On April 5, 1910, it was agreed that the securities in question might be sold by the bank 'at the best price obtainable, at such times as may seem best to the officers of' the bank; that the rights of both parties 'shall attach to the proceeds realized from the sale,' and 'the amount realized from the sale of the said securities shall stand in lieu of the securities, and shall represent the amount of the liability' of the bank to the trustee in bankruptcy in case of judgment against it. 'The making of this stipulation shall not alter the rights or claims of any of the parties, nor change the jurisdiction of any court . . . it being the intention of the stipulation that the securities in the possession of the National City Bank shall be converted into money at the best prices obtainable, and that all rights of the parties shall remain as against the proceeds of the sale of the said securities the same as they existed against the securities themselves at the time of making this stipulation.'

It seems that no sale took place. The decree was for a delivery of the securities with all interest and dividends thereon received, and in default thereof for $161,740.62, with interest from the date of the master's report. But as the securities have declined a good deal below their value at the time of conversion, and again below their value at the date of the foregoing agreement, the trustee claims the right to take the sum named, with corrections. This was answered sufficiently by Judge Hand in the district court. As he observed, the suit was in equity to recover the securities in specie. After the agreement the bank was authorized to hold them until it thought it wise to sell. If it had sold, there can be so doubt that the plaintiff's claim would have been limited to the proceeds, by the words of the contract. Its judgment not to sell, exercised for the benefit of both parties, cannot have been intended to put it in a worse position. Such an understanding would have deprived the plaintiff of the judgment of the bank.

Decree affirmed.