(concurring). — There is nothing in the decision rendered which is in any way opposed to the opinion of Mr. Commissioner Philips in Rieper v. Rieper, 79 Mo. 352. The ruling in that case, denying the plaintiff any priority, whs placed on the ground that she was a mere general creditor, and did not, by the institution of the suit against her husband, acquire :a lien on the goods. The proposition thus stated is the converse of the proposition, decided both by the supreme court and this court, that 'one who institutes a suit against a married woman in equity, to charge her separate estate with the payment of her debt to him, .acquires no lien on such separate estate prior to the rendition of the decree. Davis v. Smith, 75 Mo. 224; Boatmen's Saving Bank v. McMenamy, 35 Mo. 204.
But the maxims, “ vigilantibus etnon dormdentibus jura subveniunt," and “ qui prior est tempore, potior •est jure," are as good in equity as at law. That they *599are applicable to a case of this character has been intimated in George v. Williamson, 26 Mo. 190, and expressly decided in Jackman v. Robinson, 64 Mo. 292. The present case is a far stronger one than either of those cases, because, in Pendleton v. Perkins, 49 Mo. 565, and subsequent cases, this process is treated as an equitable garnishment.
As the liability of the city to the plaintiffs who file bills can be sustained neither on the theory of trust nor on the theory of equitable assignment, the natural result of the holding of the dissenting judge would be that a creditor of the contractor, by the institution of such a suit, would gain nothing, and the city, like any other debtor, could pay the money to its creditor, the contractor, even after the institution of the suit. Nor can I see, if such were the law, on what theory it could, defend a suit brought by its creditor for these very funds.
Whatever views we may entertain as to the propriety of permitting preferences between creditors of an insolvent debtor, the doctrine that such preferences may be gained either by the voluntary act of the deb cor or by superior diligence of the creditor, is too firmly established in our jurisprudence to be now disturbed. The understanding of the law by the bench and bar in this state, ever since the ruling in George v. Williamson, supra, was certainly in conformity with that opinion, and with the foregoing opinion.