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pized, 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 las 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, bas 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 despotio 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
a matter of law or reason, be held to belong to the latter, as of its inherent functions in the absence of 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 y. 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 euforce 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 bas 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.
upon which, as it afterward turned out, Vaughn had must be evicted — by the person having the better certain illegal tax titles and nothing more. He had title." never been in possession, and Matteson never weut In that case the plaintiffs were held to be in by coninto possession. The legal title had passed from the structive possession, and therefore capable of being United States, in 1838, to Rodney D. Hill; from Hill usted nder a mortgage derived from the same source to Bostwick and Sterling in 1851; from Sterling and of title. But the necessity of some real or constructBostwick's administrator to Adam Van Allen in 1855; ive possession was plainly asserted and recognized. from Van Allen to Stephen Clark in April, 1858, and The authorities are fully considered in Rawle ou Covefrom Clark to Hamilton Littlefield in November, 1865. nants, chapter 7. The doctrine of the case in 5 Hill is The court found that the Bostwick title was not legally quite as liberal as justice or good sense will warrant. conveyed, so that Bostwick's heirs and Littlefield held The substantial remedy in such cases as this is on each an undivided half.
the covenants of seizin and those against incumbrance. Sometime in 1868 or 1869, as Matteson testified, he | If a party does not choose to investigate his title or was preparing to enter on the land and lumber on it enforce his possession within the period of limitation, (the land having always been vacant), but was informed he must take the consequence of his own neglect. by Littlefield that he was owner and would prosecute If land is vacant it is a very easy matter to assume him if he did. A similar warning was given by Little- possession, and possession may ripen into a good title, field's agent - all the conversations taking place at the while if disturbed there is no doubt of the remedy for city of Lapeer, at a distance from the land.
eviction. If land is occupied adversely, the policy of The court below held the action on the covenants of the law requires the purchaser to inquire into the posseizin, and against incumbrances barred by the statute sessor's title. And in all cases prudence and the usual of limitations, but allowed a recovery for Littlefield's course of business will dictate the propriety of some eviction, as it was held to be, of one undivided half, examination into the title. If a purchaser examines and allowed damages to the extent of half the consid- into neither title nor possession, and does not see fit to eration and interest from the date of the supposed protect himself by proper covenants, it is his own eviction. Matteson brings error, claiming that none fault. of the causes of action are barred, and that the dam- As in our opinion the plaintiff in error has a larger ages should have included all the consideration, with judgment than he could lawfully obtain under the interest from the date of the deed.
facts set out in the record, he has no cause of comSome questions are raised by defendant in error con- plaint, and we need not examine into the specific cerning the sufficiency of the pleadings, but he has not errors not above alluded to. brought error, and the view we take of the case ren- The judgment should be affirmed, with costs. ders this matter unimportant.
As the covenants of seizin and against incumbrance were at once broken, the statute of limitation at once
RECENT ENGLISH DECISIONS. began to run against them, as against all other personal
DOMICILE. actions, and they were barred many years since. No reason has been suggested upon which they can be ta
Evidence of choice : intention not executed.- In deken out of the statute, and we do not perceive how they
termining the question of a man's domicile it is can be without entirely disregarding its terms.
material to consider where his wife and family have So far as the covenant of warranty is concerned the
their permanent residence. An intention expressed situation is peculiar. Vaughn never had either title or
but not executed cannot countervail existing facts. A possession. His void deeds could not draw possession
testator, a native of Scotland, acquired a domicile in after them by construction. The constructive posses
New South Wales, where he was possessed of a station sion, if anywhere, was in the grantees of the United
called W., at which he, for some time, resided. The States from the beginning. And, inasmuch as Matte
portion of New South Wales in which W. was situated son was never in possession actually or constructively,
was afterward separated from the rest and made into it is difficult to see what difference there is between
an independent colony, under the name of Queenshis original and his present position. He is no more
land. Shortly before the separation the testator had excluded now than he has always been. We do not
ceased to reside permanently at W., and handed over comprehend how he can be said to have been evicted.
the management of the station to his partuer; but he An eviction, according to all the best authorities,
was still part owner of the station, and frequently means some change in the possession of the party by
visited it, and had expressed an intention to reside the disturbance of an actual or constructive possession,
there at a future time, and to be buried there. He which has been displaced by a paramount title to which
was a member of the Legislative Assembly of Queensthe party has been compelled by law or by satisfactory
land, and took au active part in the political business proof of genuineness to submit. Some of the authori
of the colony, but had no permanent residence there. ties hold that there can be no eviction of one who is
His wife and family lived at a house which he had not in actual possession. Others more liberally exterd
built in New South Wales. He died suddenly while the rule to a constructive possession. But it would be
on a visit to the station at W., and was buried there. going to an absurd leugth to hold that a person can be
Held (affirming the judgment of the court below), that said to have been disturbed or evicted, when he has
the testator was domiciled in New South Wales, not never had either kind of possession. As very well
in Queensland. Privy Council, January 23, 1878. remarked by the Supreme Court of New York in St.
Platt v. Attorney-General of New South Wales, 38 L. John v. Palmer, 5 Hill, 599: “The mere fact of a su
T. Rep. (N. S.) 74. perior title in a third person can never amount to a
EVIDENCE. breach of the covenant of quiet enjoyment. The Inspection of documents : privilege: correspondence possession of the covenanter must be disturbed – he of solicitors: prior action against plaintiff, leading to
action over against defendant.— Where an action by A.
RECENT BANKRUPTCY DECISIONS. against B. gives rise to an action over by B. against C., the correspondence between the solicitors of A.
COMPOSITION. and B. is privileged from inspection by C. Q. B. Div., What debts included in: injunction - Provable debts February 14, 1878. Bulloch v. Corrie, 38 L. T. Rep. created by fraud are included in and bound by a com(N. S.) 102.
position in bankruptcy. An injunction to restrain the PARTNERSHIP.
prosecution of an action against the bankrupt in a What necessary to constitute : participation in profits.
State court, during the pendency of a composition, is - By an agreement entored into in 1871 betwen M.
proper where installments of the composition have and the trading firm of S. Brothers, M. agreed to pay
been tendered to the creditors, and the baukrupt is S. Brothers the sum of 20001., which was to be invested
not permitted to plead the composition as a bar to the by them in the purchase of a steamer, to be used for
action. U. S. Dist. Ct., New Jersey. In re Shafer & purposes of trade. For this sum M. was to receive
Wesselhoeft, 17 Nat. Bankr. Reg. 116. interest at the rate of 5 per cent per annum, and to
HOMESTEAD. have one-eighth interest in the steamer; i. e., to have Tenant in common.– The interest of a tenant in comone-eighth of the annual results after there had been mon, not exceeding five thousand dollars in value, in deducted therefrom the above-mentioned 5 per cent, the dwelling-house and land actually occupied by him all expenses of equipment, and a further sum of 10 as a homestead, is, by the Nevada Constitution and per cent on account of the annual depreciation in Laws, exempt from forced sale. U. S. Dist. Ct., value of the steamer. M. also agreed to pay 8. Nevada. In re Swearinger & Lamar, 17 Nat. Bankr. Brothers, within a year from the date of the agree
Reg. 138. ment, a further sum of 40001. ; and, on payment of the
JURISDICTION. last-mentioned sum, M. was to become interested in
1. Of State courts in actions against bankrupt: asall the business of the firm of S. Brothers to the ex
signee.-If the assignee does not choose to become a tent of three-sixteenths of the whole, and was to cease
party, voluntarily, to a suit pending in the name of the to have the said one-eighth interest in the steaner.
bankrupt, the court in which such suit is pending has M. duly paid to S. Brothers the 20001., and also paid them, at different times, various sums, not, however,
no power or authority to make him a party or to compel
him to submit to its jurisdiction and control. Sup. Ct., amounting altogether to 40001. Held, that the above
Louisiana. Serra é Hijo v. lloffman & Co., 17 Nat. mentioned agreement did not constitute M. a partner
Bankr. Reg. 124. with the firm of 8. Brothers in respect of the special
2. When assignee may not demand stay of proceedings. venture, i, e., the one steamer. Ch. D., January 22, 1878. Meyer v. Schacher, 38 L. T. Rep. (N. S.) 97.
- Where the assignee intervenes at a proper time to
defend a suit pending against the bankrupt, he has no SURETYSHIP.
right to demand a stay of proceedings; nor can he Surety: alteration in risk: alteration in principal's plead the final discharge in bar; the Bankrupt Act contract: landlord and tenant: bad notice to quit: fresh gives these privileges to the bankrupt alone. Ib. terms: new tenancy.-The defendants were sureties on
3. Where jurisdiction of State courts not affected.-The a bond for the re-delivery of a stock of 700 sheep, let jurisdiction of State courts over pending actions is not by the plaintiff, with a farm and lands called R., from
affected by the adjudication or discharge of a defendyear to year, to one G. B., such bond to be void if the
ant, unless such adjudication or discharge is pleaded. said G. B. should, at the determination of the said
Ib. tenancy, deliver up to the plaintiff, along with the
4. Appellate tribunals.- An appellate tribunal will said farm and premises, the like number, species and
take cognizance only of matters appearing upon the quality of good and sound sheep as were delivered to
record of the court below. A discharge obtained pend. the said G. B. The plaintiff gave G. B. potice to quit
ing the appeal cannot be pleaded in the appellate court. on a day named, which would have been bad as a no
Section 21 of the Bankrupt Act ($ 5106, U.S. R. S.) does tice for that day; but before that day the parties met
not apply to appellate tribunals. Ib. and agreed that from the day named in the notice to
5. Residence : partnership.- Residence or carrying quit the rent should be reduced by 101., and a field of
on of business in the district for six months is a juris
dictional fact, and the petition must contain an allethat this new agreement with the tenant had not
gation showing it. But, upon an application for a made any substantial or material difference in the re
discharge, the creditors may show that the alleged lation between the parties as regards the tenant's
ground of jurisdiction did not exist. In a proceeding capacity to do the things mentioned in the condition
against a copartnership the court must acquire jurisof the bond, and for the breach of which the action
diction over all the members of the firm in order to was brought. Held, that whether there is such a sub
have jurisdiction over any of them. Where the petistantial or material alteration in the risk as to dis
tion against a copartnership alleged as the ground of charge the surety is a question for the jury, but that
jurisdiction that all the members of the firm had rethere had been such an alteration in the contract
sided in the district for the necessary period, the fact between the plaintiff and G. B. as to constitute a dif
that one of such members has not so resided defeats ferent contract for a breach of which the defendants
the jurisdiction of the court as respects the entire were not liable; and, further, that the tenancy which
U. S. Dist. Ct., S. D. New York. In re Beals, was contemplated by the bond ceased by the operation
17 Nat. Bankr, Reg. 107. of the notice to quit, followed by the fresh agreement,
SET-OFF. and that the defendants consequently were not liable in respect of a deficiency of sheep arising at the ex- Storage receipt issued by bankrupt: tort.- The bankpiration of the new tenancy. C. P. Div., Dec. 21, 1877, rupt was extensively engaged in manufacturing flour Holme v. Brunskill, 38 L. T. Rep. (N. S.) 103.
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 bo 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.
SURETYSHIP. 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.
TRADESMAN. 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 oredit, 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.
Neglect to elect officers : rights of stockholders : statistory 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.]
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. Aller v. Meyer. Opinion per Curiam.
2. Order to take deposition of unwilling witness, under section 401 of old Code.- An order for taking the deposition of a witness who refuses to make an affidavit, under section 401 of the old Code, is authorized in case of an application for an attachment. Such application is a motion within the section. Ib.
3. Appealable order : order granting attachment. An order granting an attachment is not appealable to this court, unless it presents a question of law or absolute legal right. But if the order is granted in a case not authorized, or if there is an entire absence of facts proved justifying it, the case would present a question of law and be appealable. Ib. [Decided January 15, 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.]
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 couusel 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 defend. ant's counsel was proper and his exception was available to entitle defendant to a new trial. Ib. [Decided February 19, 1878.]
WILL. Conditions in policy: acts of agent : authority of Construction of : perpetuities. — The testator directed agent. – A fire insurance policy contained these con- his executors, at the expiration of four years after his ditions: “If the premises hereby insured shall become
decease, to sell his real estate and pay over the provacated by the removal of the owner or occupant, and
ceeds to the Bishop of Raphoe upon the trusts menso remain for more than fifteen days without notice to tioned, and until the sale he directed them to rent the the company and consent indorsed hereon, then the real estate, and after paying taxes, etc., to deposit the policy shall be void.” “And it is further expressly balance of the rents in a savings bank, and pay the covenanted by the parties hereto that no officer, agent money thus deposited, with the residue of his personal or representative of this company shall be held to have estate and the proceeds of the sale of his real estate, to waived any of the terms and conditions of the policy the Bishop of Raphoe upon the trusts mentioned. unless such waiver shall be indorsed hereon in Held, (1) that the direction to rent the real estate and writing.” “This policy is made and accepted upon deposit the rents during four years was a suspension the above express condition.” The house which was of the power of alienation not limited by life and was insured was vacated by its tenant, and the owner upon void; (2) that the direction as to the disposition of the the same or the next day asked the agent of the com- personal estate, and of the proceeds of the real estate pany, and the one from whom he had procured the at the end of four years to the Bishop of Raphoe, policy, if he would give consent, and asked him to would not be invalid if he was to receive them absolutely indorse it upon the policy. The ageut gave oral con- for his own use, but (3) as he was to receive them merely sent, and said it need not be indorsed on the policy, as as trustee for certain trusts, and consequently could he would make a memorandum of it in the register he not unite with the heirs or others in the disposition of kept of insurances. He made the inemorandum prom- this fund, the power of alienation would be suspended ised but did not indorse consent upon the policy. during the four years, and the provision was void as The company received no notice of these things. being against the statute relating to perpetuities. JudgHeld, that the act of the agent did not constitute a ment below affirmed. Garvey v. McDevitt. Opinion waiver of the condition so as to bind the company, and by Earl, J. the company was not liable upon the policy for a loss [Decided February 19, 1878. Reported below, 11 Hun, occurring more than fifteen days after the house had 457.] become vacant. Order below granting a new trial reversed. Walsh v. Hartford Fire Ins. Co. Opinion by
ASSIGNMENTS UNDER STATE LAW. Andrews, J. Allen, Rapallo and Earl, JJ., concurred. Church, C. J., and Folger and Miller, JJ., dissented.
N Williams v. Pitts, decided by Mr. Justice Angle [Decided March 19, 1878. Reported below, 9 Hun,
of the Supreme Court of this State at the Ontario 421.)
equity term, held on the third Monday of March, the
question was as to the validity of a general assignment RECORDING ACTS.
with preferences. The court held in substance as fol
lows: What necessary to entitle purchaser to benefit of : good faith. – A purchaser to have the benefit of the record
If Bostwick v. Burnett, 11 Hun, 301, be sound this iug acts must be a purchaser in good faith, that is,
motion should be granted, for it holds that an assignwithout notice actual or constructive of any outstand
ment giving preferences is not only void as against ing or other title, but also for a valuable consideration.
proceedings under the bankrupt act, but it also holds Judgment below affirmed. Wells v. Ross. Opinion
that it is void in the State courts as to persons claimby Allen, J.
ing under State adjudications or under the process of
State courts. The opinion in the above case, written WAIVER.
by Justice Barnard, and concurred in by Justice GilAction by State to recover moneys paid on contract
bert, refers to none of the adverse decisions and it is illegally entered into : ratification of contract after knowl
opposed to the following: edge of fraud. - In an action by the State to recover
Dodge v. Sheldon, 6 Hill, 9; Seaman v. Stoughton, 3 damages for the loss suffered by the State by reason of
Barb Ch. 344; Schryock v. Bashore, 13 Nat. Bankr. fraudulent canal contracts entered into between de
Reg. 481, 495; Atkins v. Speer, 8 Meto. 490; Maltbie v. fendants and the State, it was alleged that the State
Hotchkiss, 38 Coun. 80; S. C., 15 Nat. Bankr. was induced to enter into the contracts by a fraud
Reg. 485; S. C., 9 Am. Rep. 364; Bromley v. Goodrich, ulent combination between defendants and others and
40 Wis. 131; S. C., 22 Am. Rep. 685; In the matter of certain acts amounting to false representations, for
Beisenthal, 15 Nat. Bankr. Reg. 228. the purpose of preventing competition. As a defense If Bostwick v. Burnett were the only case in this it was set up that after the knowledge of these fraud- State on the point, I should obediently follow it, notulent acts had come to the State authorities and the withstanding the array of other authorities opposed, legislature the legislature directed the completion of but Dodge v. Shelden aud Seaman v. Stoughton are each the contracts or some of them, and payment to be
of equal dignity and authority with it in our own made in case the contracts were completed, and for State, although not so recent, and appear to me so the payment for work actually done in case the con.
plainly sound in principle that I deem myself at libertracts were annulled. Held, that the State, in accept- ty to follow these, and the numerous corresponding ing the work and making payment, manifested an in- decisions also cited and order judgment for the detention to waive its rights to recover damages for the fendant in this case, and by so doing hold that, alfraudulent combination through which the contracts though an assignment giving preferences is void under were entered into, and that it could not maintain the the bankrupt act under the conditions therein proaction. Judgment below affirmed. People v. Lord. vided, it is void only as to persons and proceedings Opinion by Rapallo, J.
under that act, and except as to such persons and pro[Decided January 15, 1878.]
ceedings it is as valid as ever.