David S. Whintringham, Appellant, v. William A. Dibble, Assignee, etc., Respondent

David S. Whintringham, Appellant, v. William A. Dibble, Assignee, etc., Respondent. (Argued May 29, 1876; decided June 6, 1876.) Upon an issue as to whether an assignee for the benefit of creditors has paid a preferred creditor, evidence tending to show that the assignee has not paid another preferred creditor in the same class is incompetent. This action was brought by plaintiff, as creditor of the firm of Acker & Hams, against defendant as assignee to recover the amount of his debt. Said firm, having failed, made an assignment to defendant for the benefit of creditors. The assignment made preferences, and plaintiff was in the first class of preferred creditors. Defendant alleged that he had paid plaintiff’s claim, and the only issue was as to payment. Defendant testified, on the trial, that he paid the first class in full. He was asked as to one Demorest, a creditor in that class, and he testified that he paid Demorest’s claim to some one who had purchased it, or who represented him. Demorest was subsequently called as a witness by plaintiff, and was asked: “ Did you ever receive from him (defendant) any amount whatever, and if so, what amount?” This was objected to and the objection sustained. Held, no error; that evidence tending to show that he had not paid Demorest had no bearing upon the issue, and the evidence was not competent as discrediting defendant, as he had not testified that he paid any thing directly to Demorest. Defendant testified that he paid the first class in full, and paid a dividend upon the second class. He was then asked, on cross-examination, what dividend he made on the second class. This was objected to, and objection sustained. Held, no error; that the evidence was wholly immaterial. C. Bamh'idge Smith for the appellant. Jamies M. Smith for the respondent. [MAJORITY — Per Qwriam] Per Qwriam opinion for affirmance. All concur. Judgment affirmed.