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nized, and this circumstance, as a matter of contemporaneous and long continued practice, by all departments of the government, would seem to negative the existence of the right with great emphasis. A prerogative which has remained so long practically useless can hardly be said to exist. By an act passed June 13, 1799 (Pat, 435), it was enacted that when the estate of any decedent was insufficient to pay all his debts, the physician's bill during the last sickness, funeral expenses and judgments entered of record during the life-time of the decedent should be first paid, and that the balance of the estate should be distributed among his creditors in proportion to the sums due to them respectively. This act in substance has continued in force up to this time. Revision of 1821, p. 766; Elmor's Dig. 169; Revision of 1846, p. 346; Nixon's Dig. (4th ed.) 419. In the first edition of Ewing N. J. Justice, published in 1805, it is said (p. 69): "All the ancient law learning respecting the priority of debts is entirely done away by the act of June 13, 1799," and Mr. Griffith subsequently declared it to be his opinion that our laws give no preference to debts of any kind due to the State; they stand only on the same footing as other debts according to their degree. 4 Grif. Law Reg. 1281, note 2. And an author quite as eminent as a jurist as any name that ever adorned the American bench, has stated the right of preference to a State, in this country, does not rest upon the common law, but exists only where given by statute. 1 Kent's Com. 248, note c. The Federal government unquestionably possessed as high a prerogative right, as a creditor, as any sovereignty could under a government republican in form, yet it never attempted to exercise the crown's common law prerogative in this respect, but as early as 1797 established a right of preference by statute. U. S. Rev. Stat. 691. And it has been held that this statute must be strictly construed, it being in derogation of the common right of creditors of the same class, to be paid equally. 1 Kent's Com. 247. It has been thrice adjudged in South Carolina that this prerogative was so purely an attribute of a despotic government, and so strongly in antagonism to the cardinal objects of a government established by the people for their common protection and security, that it could not, either as a matter of law or reason, be held to belong to the latter, as of its inherent functions in the absence of an express legislative declaration to that effect. Commissioners of Public Accounts v. Greenwood, 1 Dessaus. 450. Arguments of counsel will be found in the appendix, p. 599. State v. Harris, 2 Bailey, 598; Keckley v. Keckley, 2 Hill's Ch. 256. Debts which arise ex contractu and are therefore due to the State in her corporate capacity, or debts which arise ex delicto, and which are the punishment of the law for misdemeanor are not entitled to preference over debts due to the citizen. State Bank v. Gibbs, 3 McCord (Law) 377. Neither the research of counsel, nor my own has brought to my attention but a single case, decided by an American court, in which this right, as an attribute of government, has received judicial sanction. Maryland, 6 Gill & Johns. 205. This case does distinctly declare, that by the adoption of the common law, the State of Maryland became invested with the prerogative in question, but not of its harsh and oppressive incidents. It was held the State simply acquired the pre-eminent right without the writ of protection or extent, and could only enforce the right by such remedies as the citizen
was at liberty to employ. By what means these incidents were lost is not stated. I think it would be quite difficult to show how they were lost, unless altered by legislation. I think if the right is admitted at all, it must be allowed to stand in all its original vigor. But what is more pertinent to the question in hand, it was also held in this case that any act which divests the title of the debtor and puts his property in the hands of either for the benefit of his creditors cuts out the right of the State. In all its essential features that case was identical with this. The treasurer of the Western Shore of Maryland had on deposit in the Bank of Maryland when it became insolvent over $50,000, the bank assigned its property to trustees for the equal benefit of its creditors, and thereupon the State filed a bill in equity, alleging that the trustees, in the proper execution of their trust, were bound to pay the State first in preference to the other creditors. Judgment of dismissal was pronounced on the ground that the moment the debtor's title was divested by assignment the right of the State expired.
In my opinion, a judgment which adjudges this prerogative to the State, will give it, what, in the unanimous judgment of a long line of distinguished law officers it never had, if their persistent refusal to assert it can be regarded as any evidence of their judgment and what has but feeble support in the judicial opinion of the country. My judgment is, the State does not possess the prerogative claimed. But if my examination of the question had led me to a different conclusion, still, I think the claim could not be sustained. The authorities of both countries unanimously agreed that the right dies the moment the debtor's title is divested. No claim was made by the State in this case until after a receiver had been appointed. That appointment invested him with full power to sell, assign, and convey all the property of the corporation. Rev. 189, § 72. No act by the corporation is necessary to complete either the title of the receiver or that of his purchaser. Unlike proceedings under bankrupt laws no assignment by the debtor or commissioners is required. Title is divested by force of law, and such divestiture is perfect and absolute.
The order asked must be denied and the petition dismissed.
POSSESSION ESSENTIAL TO MAINTENANCE OF ACTION FOR BREACH OF WARRANTY.
SUPREME COURT OF MICHIGAN, JANUARY TERM, 1878.
MATTESON V. VAUGHN.
The grantee in a warranty deed who has never been in possession actually or constructively, cannot maintain an action on the covenant on the ground that he has been evicted.*
CTION upon covenants of warranty in deed from
H. Geer, for plaintiff.
A. Blair & M. V. Montgomery, for defendant. CAMPBELL, C. J. In this case suit was brought on the covenants of a warranty deed, made by Vaughn to plaintiff June 13,1853, of certain lands in Lapeer county,
* See contra, overruling Kortz v. Carpenter, 5 Johns. 120, Shattuck v. Lamb, 65 N. Y. 499; S. C., 22 Am. Rep.656.
upon which, as it afterward turned out, Vaughn had certain illegal tax titles and nothing more. He had never been in possession, and Matteson never went into possession. The legal title had passed from the United States, in 1838, to Rodney D. Hill; from Hill to Bostwick and Sterling in 1851; from Sterling and Bostwick's administrator to Adam Van Allen in 1855; from Van Allen to Stephen Clark in April, 1858, and from Clark to Hamilton Littlefield in November, 1865. The court found that the Bostwick title was not legally conveyed, so that Bostwick's heirs and Littlefield held each an undivided half.
Sometime in 1868 or 1869, as Matteson testified, he was preparing to enter on the land and lumber on it (the land having always been vacant), but was informed by Littlefield that he was owner and would prosecute him if he did. A similar warning was given by Littlefield's agent-all the conversations taking place at the city of Lapeer, at a distance from the land.
The court below held the action on the covenants of seizin, and against incumbrances barred by the statute of limitations, but allowed a recovery for Littlefield's eviction, as it was held to be, of one undivided half, and allowed damages to the extent of half the consideration and interest from the date of the supposed eviction. Matteson brings error, claiming that none of the causes of action are barred, and that the damages should have included all the consideration, with interest from the date of the deed.
Some questions are raised by defendant in error concerning the sufficiency of the pleadings, but he has not brought error, and the view we take of the case renders this matter unimportant.
As the covenants of seizin and against incumbrance were at once broken, the statute of limitation at once began to run against them, as against all other personal actions, and they were barred many years since. No reason has been suggested upon which they can be taKen out of the statute, and we do not perceive how they can be without entirely disregarding its terms.
So far as the covenant of warranty is concerned the situation is peculiar. Vaughn never had either title or possession. His void deeds could not draw possession after them by construction. The constructive possession, if anywhere, was in the grantees of the United States from the beginning. And, inasmuch as Matteson was never in possession actually or constructively, it is difficult to see what difference there is between his original and his present position. He is no more excluded now than he has always been. We do not comprehend how he can be said to have been evicted.
An eviction, according to all the best authorities, means some change in the possession of the party by the disturbance of an actual or constructive possession, which has been displaced by a paramount title to which the party has been compelled by law or by satisfactory proof of genuineness to submit. Some of the authorities hold that there can be no eviction of one who is not in actual possession. Others more liberally extend the rule to a constructive possession. But it would be going to an absurd length to hold that a person can be said to have been disturbed or evicted, when he has never had either kind of possession. As very well remarked by the Supreme Court of New York in St. John v. Palmer, 5 Hill, 599: "The mere fact of a superior title in a third person can never amount to a breach of the covenant of quiet enjoyment. The possession of the covenanter must be disturbed - he
In that case the plaintiffs were held to be in by constructive possession, and therefore capable of being ousted under a mortgage derived from the same source of title. But the necessity of some real or constructive possession was plainly asserted and recognized. The authorities are fully considered in Rawle on Covenants, chapter 7. The doctrine of the case in 5 Hill is quite as liberal as justice or good sense will warrant.
The substantial remedy in such cases as this is on the covenants of seizin and those against incumbrance. If a party does not choose to investigate his title or enforce his possession within the period of limitation, he must take the consequence of his own neglect.
If land is vacant it is a very easy matter to assume possession, and possession may ripen into a good title, while if disturbed there is no doubt of the remedy for eviction. If land is occupied adversely, the policy of the law requires the purchaser to inquire into the possessor's title. And in all cases prudence and the usual course of business will dictate the propriety of some examination into the title. If a purchaser examines into neither title nor possession, and does not see fit to protect himself by proper covenants, it is his own fault.
As in our opinion the plaintiff in error has a larger judgment than he could lawfully obtain under the facts set out in the record, he has no cause of complaint, and we need not examine into the specific errors not above alluded to.
The judgment should be affirmed, with costs.
RECENT ENGLISH DECISIONS.
Evidence of choice: intention not executed.- In determining the question of a man's domicile it is material to consider where his wife and family have their permanent residence. An intention expressed but not executed cannot countervail existing facts. A testator, a native of Scotland, acquired a domicile in New South Wales, where he was possessed of a station called W., at which he. for some time, resided. The portion of New South Wales in which W. was situated was afterward separated from the rest and made into an independent colony, under the name of Queensland. Shortly before the separation the testator had ceased to reside permanently at W., and handed over the management of the station to his partner; but he was still part owner of the station, and frequently visited it, and had expressed an intention to reside there at a future time, and to be buried there. He was a member of the Legislative Assembly of Queensland, and took an active part in the political business of the colony, but had no permanent residence there. His wife and family lived at a house which he had built in New South Wales. He died suddenly while on a visit to the station at W., and was buried there. Held (affirming the judgment of the court below), that the testator was domiciled in New South Wales, not in Queensland. Privy Council, January 23, 1878. Platt v. Attorney-General of New South Wales, 38 L. T. Rep. (N. S.) 74.
Inspection of documents: privilege: correspondence of solicitors: prior action against plaintiff, leading to
action over against defendant.- Where an action by A. against B. gives rise to an action over by B. against C., the correspondence between the solicitors of A. and B. is privileged from inspection by C. Q. B. Div., February 14, 1878. Bulloch v. Corrie, 38 L. T. Rep. (N. S.) 102.
What necessary to constitute: participation in profits. - By an agreement entered into in 1871 betwen M. and the trading firm of S. Brothers, M. agreed to pay S. Brothers the sum of 2000l., which was to be invested by them in the purchase of a steamer, to be used for purposes of trade. For this sum M. was to receive interest at the rate of 5 per cent per annum, and to have one-eighth interest in the steamer; i. e., to have one-eighth of the annual results after there had been deducted therefrom the above-mentioned 5 per cent, all expenses of equipment, and a further sum of 10 per cent on account of the annual depreciation in value of the steamer. M. also agreed to pay S. Brothers, within a year from the date of the agreement, a further sum of 4000l.; and, on payment of the last-mentioned sum, M. was to become interested in all the business of the firm of S. Brothers to the extent of three-sixteenths of the whole, and was to cease to have the said one-eighth interest in the steamer. M. duly paid to S. Brothers the 2000l., and also paid them, at different times, various sums, not, however, amounting altogether to 4000l. Held, that the abovementioned agreement did not constitute M. a partner with the firm of S. Brothers in respect of the special venture, i. e., the one steamer. Ch. D., January 22, 1878. Meyer v. Schacher, 38 L. T. Rep. (N. S.) 97.
Surely alteration in risk: alteration in principal's contract: landlord and tenant: bad notice to quit: fresh terms: new tenancy.-The defendants were sureties on a bond for the re-delivery of a stock of 700 sheep, let by the plaintiff, with a farm and lands called R., from year to year, to one G. B., such bond to be void if the said G. B. should, at the determination of the said tenancy, deliver up to the plaintiff, along with the said farm and premises, the like number, species and quality of good and sound sheep as were delivered to the said G. B. The plaintiff gave G. B. notice to quit on a day named, which would have been bad as a notice for that day; but before that day the parties met and agreed that from the day named in the notice to quit the rent should be reduced by 101., and a field of seven acres given up by the tenant. The jury found that this new agreement with the tenant had not made any substantial or material difference in the relation between the parties as regards the tenant's capacity to do the things mentioned in the condition of the bond, and for the breach of which the action was brought. Held, that whether there is such a substantial or material alteration in the risk as to discharge the surety is a question for the jury, but that there had been such an alteration in the contract between the plaintiff and G. B. as to constitute a different contract for a breach of which the defendants were not liable; and, further, that the tenancy which was contemplated by the bond ceased by the operation of the notice to quit, followed by the fresh agreement, and that the defendauts consequently were not liable in respect of a deficiency of sheep arising at the expiration of the new tenancy. C. P. Div., Dec. 21, 1877, Holme v. Brunskill, 38 L. T. Rep. (N. S.) 103.
RECENT BANKRUPTCY DECISIONS. COMPOSITION.
What debts included in: injunction.- Provable debts created by fraud are included in and bound by a composition in bankruptcy. An injunction to restrain the prosecution of an action against the bankrupt in a State court, during the pendency of a composition, is proper where installments of the composition have been tendered to the creditors, and the bankrupt is not permitted to plead the composition as a bar to the action. U. S. Dist. Ct., New Jersey. In re Shafer & Wesselhoefft, 17 Nat. Bankr. Reg. 116.
Tenant in common. The interest of a tenant in common, not exceeding five thousand dollars in value, in the dwelling-house and land actually occupied by him as a homestead, is, by the Nevada Constitution and Laws, exempt from forced sale. U. S. Dist. Ct., Nevada. In re Swearinger & Lamar, 17 Nat. Bankr. Reg. 138.
1. Of State courts in actions against bankrupt: assignee.-If the assignee does not choose to become a party, voluntarily, to a suit pending in the name of the bankrupt, the court in which such suit is pending has no power or authority to make him a party or to compel him to submit to its jurisdiction and control. Sup. Ct., Louisiana. Serra é Hijo v. Hoffman & Co., 17 Nat. Bankr. Reg. 124.
2. When assignee may not demand stay of proceedings. -Where the assignee intervenes at a proper time to defend a suit pending against the bankrupt, he has no right to demand a stay of proceedings; nor can he plead the final discharge in bar; the Bankrupt Act gives these privileges to the bankrupt alone. Ib.
3. Where jurisdiction of State courts not affected.-The jurisdiction of State courts over pending actions is not affected by the adjudication or discharge of a defendant, unless such adjudication or discharge is pleaded. Ib.
4. Appellate tribunals. An appellate tribunal will take cognizance only of matters appearing upon the record of the court below. A discharge obtained pend. ing the appeal cannot be pleaded in the appellate court. Section 21 of the Bankrupt Act (§ 5106, U. S. R. S.) does not apply to appellate tribunals. Ib.
5. Residence: partnership.-Residence or carrying on of business in the district for six months is a jurisdictional fact, and the petition must contain an allegation showing it. But, upon an application for a discharge, the creditors may show that the alleged ground of jurisdiction did not exist. In a proceeding against a copartnership the court must acquire jurisdiction over all the members of the firm in order to have jurisdiction over any of them. Where the petition against a copartnership alleged as the ground of jurisdiction that all the members of the firm had resided in the district for the necessary period, the fact that one of such members has not so resided defeats the jurisdiction of the court as respects the entire case. U. S. Dist. Ct., S. D. New York. In re Beals, 17 Nat. Bankr. Reg. 107.
Storage receipt issued by bankrupt: tort.- The bankrupt was extensively engaged in manufacturing flour and storing grain in an elevator attached to its mill.
Defendant, prior to the bankruptcy, and in ignorance of the insolvency of the corporation, purchased a storage receipt which had been issued by it, and subsequently demanded a delivery of the grain, which was refused. In an action brought by the assignee to recover money of the bankrupt which the defendant had in his possession at the time of adjudication, held, that the value of the grain so converted might be set off. Where the set-off is founded on a duty which the plaintiff owes the defendant, the wrongful act can be waived and a set-off is proper; but where the cause of action is a tort, then the wrongful act cannot be waived. U. S. Dist. Ct., Minnesota. McCabe v. Winship, 17 Nat. Bankr. Reg. 113.
What constitutes.- Prior to the commencement of the proceedings, the bankrupt sold his interest in a firm of which he was a member to E., his partner, at the same time agreeing to pay all the firm debts, and to indemnify E. against any liability thereon. Held, that as between themselves the bankrupt became the principal debtor, and E. surety for him as to all the debts of the firm, and that E. could not make proof for the respective differences between the total amount of the firm debts and the dividends which the estate will pay thereon as a contingent debt under section 5068, when he has not paid any part of such differences. U. S. Dist. Ct., S. D. New York. In re Phelps, 17 Nat. Bankr. Reg. 144.
Who is: saloon keeper.- A saloon keeper who purchases liquors and segars in quantities, and some on credit, and sells them at retail for cash and on credit, is a merchant or tradesman within the meaning of the seventh subdivision of section 5110. U. S. Dist. Ct., S. D. New York. In re Sherwood, 17 Nat. Bankr. Reg. 112.
COURT OF APPEALS ABSTRACT.
1. Provisions of old Code, section 227, apply to New York Common Pleas.- The provision of section 227 of the old Code, which authorizes the issuing of an attachment, that "for the purposes of this section an action shall be deemed commenced when the summons is issued, provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days," applies generally to courts having authority to issue attachments, including the New York Common Pleas. Motion for reargument denied. Allen v. Meyer. Opinion per Curiam.
Neglect to elect officers: rights of stockholders: statutory construction: mandamus.- The provision of 2 R. R. 604, § 8, declaring that if the election for directors of any bank or other incorporated company of this State shall not be duly held on the day designated, "it shall be the duty of the president, etc., to notify and cause an election for directors to be held within sixty days immediately thereafter," applies to manufacturing corporations formed under the act of 1848, and the provisions of sections 3 and 4 of the last-mentioned act in reference to the election of officers do not control and are not in conflict with the statute first named. Accordingly where the managing officers of a manufacturing corporation, in case of the failure to hold an annual election as provided by the statute, refused to give the notice and hold the election provided for by 2 R. S. 604, § 8, held, that a stockholder was entitled to a peremptory mandamus to compel them to do so. Order below affirmed. People ex rel. Miller v. Cumming. Opinion by Miller, J. [Decided February 5, 1878.]
1. Privileged question: inquiry as to arrest of witness. -The defendant while upon the stand as a witness in his own behalf, in a criminal trial, was asked this question: "How many times have you been arrested?" Held, that defendant was privileged from answering the question, and that an objection on this ground would be well taken by his counsel and an exception to the ruling of the court, requiring him to answer, was available to him as a ground of error. Judgment of General Term reversing judgment of court below affirmed. People, plaintiff in error, v. Brown. Opinion by Church, C. J. [Decided February 19, 1878. Reported below, 8 Hun, 562.1
2. Admissions by agent: when not allowable against principal -In an action against a street railroad company for damages, for negligently running over a child, held, that statements of defendant's conductor in charge of the car causing the accident, made long after the accident took place, were inadmissible either to establish the driver's negligence or to contradict the testimony of the conductor, who was sworn as a witness for defendant upon immaterial answers concerning matter not given on direct but drawn out on cross-examination. Judgment below reversed and new trial granted. Furst v. Second Avenue R. R. Co. Opinion by Rapallo, J.
3. Practice at trial: objections and waiver.- After repeated objections on the part of defendant had been made to the questions put to a witness for the plaintiff and overruled, he answered that the conductor told him he thought the driver did not look or the child would not have been run over. Plaintiff's counsel then proposed to have the answer stricken out, it appearing from the answer that it was manifestly matter of opinion. Defendant's counsel declined to accept this proposition and elected to retain his exception. The court made no ruling and gave no instruction on the subject. Held, that the action of defendant's counsel was proper and his exception was available to entitle defendant to a new trial. Ib. [Decided February 19, 1878.]
Conditions in policy: acts of agent: authority of agent. A fire insurance policy contained these conditions: "If the premises hereby insured shall become vacated by the removal of the owner or occupant, and so remain for more than fifteen days without notice to the company and consent indorsed hereon, then the policy shall be void." "And it is further expressly covenanted by the parties hereto that no officer, agent or representative of this company shall be held to have waived any of the terms and conditions of the policy unless such waiver shall be indorsed hereon in writing." "This policy is made and accepted upon the above express condition." The house which was insured was vacated by its tenant, and the owner upon the same or the next day asked the agent of the company, and the one from whom he had procured the policy, if he would give consent, and asked him to indorse it upon the policy. The agent gave oral consent, and said it need not be indorsed on the policy, as he would make a memorandum of it in the register he kept of insurances. He made the memorandum promised but did not indorse consent upon the policy. The company received no notice of these things. Held, that the act of the agent did not constitute a waiver of the condition so as to bind the company, and the company was not liable upon the policy for a loss occurring more than fifteen days after the house had become vacant. Order below granting a new trial reversed. Walsh v. Hartford Fire Ins. Co. Opinion by Andrews, J. Allen, Rapallo and Earl, JJ., concurred. Church, C. J., and Folger and Miller, JJ., dissented. [Decided March 19, 1878. Reported below, 9 Hun, 421.]
What necessary to entitle purchaser to benefit of: good faith. A purchaser to have the benefit of the recording acts must be a purchaser in good faith, that is, without notice actual or constructive of any outstanding or other title, but also for a valuable consideration. Judgment below affirmed. Wells v. Ross. Opinion by Allen, J.
Action by State to recover moneys paid on contract illegally entered into: ratification of contract after knowledge of fraud. — In an action by the State to recover damages for the loss suffered by the State by reason of fraudulent canal contracts entered into between defendants and the State, it was alleged that the State was induced to enter into the contracts by a fraudulent combination between defendants and others and certain acts amounting to false representations, for the purpose of preventing competition. As a defense it was set up that after the knowledge of these fraudulent acts had come to the State authorities and the legislature the legislature directed the completion of the contracts or some of them, and payment to be made in case the contracts were completed, and for the payment for work actually done in case the con. tracts were annulled. Held, that the State, in accepting the work and making payment, manifested an intention to waive its rights to recover damages for the fraudulent combination through which the contracts were entered into, and that it could not maintain the action. Judgment below affirmed. People v. Lord. Opinion by Rapallo, J. ¡Decided January 15, 1878.]
Construction of: perpetuities.
The testator directed his executors, at the expiration of four years after his decease, to sell his real estate and pay over the proceeds to the Bishop of Raphoe upon the trusts mentioned, and until the sale he directed them to rent the real estate, and after paying taxes, etc., to deposit the balance of the rents in a savings bank, and pay the money thus deposited, with the residue of his personal estate and the proceeds of the sale of his real estate, to the Bishop of Raphoe upon the trusts mentioned. Held, (1) that the direction to rent the real estate and deposit the rents during four years was a suspension of the power of alienation not limited by life and was void; (2) that the direction as to the disposition of the personal estate, and of the proceeds of the real estate at the end of four years to the Bishop of Raphoe, would not be invalid if he was to receive them absolutely for his own use, but (3) as he was to receive them merely as trustee for certain trusts, and consequently could not unite with the heirs or others in the disposition of this fund, the power of alienation would be suspended during the four years, and the provision was void as being against the statute relating to perpetuities. Judgment below affirmed. Garvey v. McDevitt. Opinion by Earl, J. [Decided February 19, 1878. Reported below, 11 Hun, 457.]
ASSIGNMENTS UNDER STATE LAW.
N Williams v. Pitts, decided by Mr. Justice Angle
equity term, held on the third Monday of March, the question was as to the validity of a general assignment with preferences. The court held in substance as follows:
If Bostwick v. Burnett, 11 Hun, 301, be sound this motion should be granted, for it holds that an assignment giving preferences is not only void as against proceedings under the bankrupt act, but it also holds that it is void in the State courts as to persons claiming under State adjudications or under the process of State courts. The opinion in the above case, written by Justice Barnard, and concurred in by Justice Gilbert, refers to none of the adverse decisions and it is opposed to the following:
Dodge v. Sheldon, 6 Hill, 9; Seaman v. Stoughton, 3 Barb Ch. 344; Schryock v. Bashore, 13 Nat. Bankr. Reg. 481, 495; Atkins v. Speer, 8 Metc. 490; Maltbie v. Hotchkiss, 38 Coun. 80; S. C., 15 Nat. Bankr. Reg. 485; S. C., 9 Am. Rep. 364; Bromley v. Goodrich, 40 Wis. 131; S. C., 22 Am. Rep. 685; In the matter of Beisenthal, 15 Nat. Bankr. Reg. 228.
If Bostwick v. Burnett were the only case in this State on the point, I should obediently follow it, notwithstanding the array of other authorities opposed, but Dodge v. Shelden aud Seaman v. Stoughton are each of equal dignity and authority with it in our own State, although not so recent, and appear to me so plainly sound in principle that I deem myself at liberty to follow these, and the numerous corresponding decisions also cited and order judgment for the defendant in this case, and by so doing hold that, although an assignment giving preferences is void under the bankrupt act under the conditions therein provided, it is void only as to persons and proceedings under that act, and except as to such persons and proceedings it is as valid as ever.