Decision.—Decree of the chancellor reversed, and decree •declaring that Henry B. Wardell holds the assigned property as trustee for the complainants to the extent of their debt; and that he pay the same, together with their costs in the court of chancery, out of the fund in his hands.
For affirmance, Ruggles and Jones, JJ.
For reversal, Jewett, Bronson, Gardiner, Wright, Johnson, and Gray, JJ.
Note.—Wriq-ht, J. Held, that these assignments (to Henry B. Wardell) were made in fraud of the act, and of the rights of the appellants, acquired thereunder ; and it was plainly to he perceived; were so intended by the respondents themselves. For if, as they then contended, the statutory assignee would take for the benefit of all creditors, why, pending the proceedings, voluntarily make * assignments having the'like effect ? Nothing could be more undoubted than that the respondents contemplated a fraudulent interference with the statutory assignment.
Bronson, J.—Held, that although the appellants acquired no lien upon the property by commencing proceedings under the act, they acquired the right to a preference over the other creditors, which could not be defeated by a voluntary assignment; and the transfer of the property to Henry B. Wardell was a fraud upon the law and the appellants, which a court of equity should not permit to succeed.
Reported 1 Comstock, 144.