Fletcher M. Thrasher, Respondent, v. Elvira Bentley, Appellant

Fletcher M. Thrasher, Respondent, v. Elvira Bentley, Appellant. An assignment for the benefit of creditors by an insolvent debtor which gives no preference to any creditor, and where no proceedings in bankruptcy have been taken by or against him, is not void as in hostility to the bankrupt act. (Argued December 11, 1874; decided December 22, 1874.) Such an assignment is not rendered void by the fact that the bond oí the assignee is not approved by the county judge as required by the act oí 1860. (Chap. 348, Laws of 1860.) The giving of the bond is not a prerequisite to the validity of the assignment; and if the former, when given, is irregular and-void, it does not affect the validity of the latter. A special county judge, elected under and by virtue of legislative authority, with power to perform the duties of the county judge, has the power to approve such a bond. This action was brought by plaintiff, as assignee for the benefit of creditors of one Charles M. Syme, to recover for goods alleged to have been sold by him to defendant. The defence was that the act of 1860, in reference to such assignments (chap. 348, Laws of 1860) is suspended by the bankrupt act of the United States, and that therefore the assignment under which plaintiff claimed was void; that it was void, also, because no legal bond was given by the assignee; also, that the goods were sold and delivered as a part of the purchase-price of a house and lot contracted by parol to be sold by defendant to plaintiff’s assignor. The assignment was in trust to pay all the creditors of Syme equally, and it did not appear that any proceedings had been instituted by or against him under the bankrupt act. Held, that conceding the law of 1860 to be suspended, the right to make an assignment for the benefit of creditors was not created by that act but existed at common law, and that the assignment itself was not in hostility to the bankrupt act. (Sedgwick v. Place, 1 Bk. Reg., 204; Hawkins' Appeal, 34 Conn., 548.) The objection to the bond was that it was approved by the special county judge of Monroe county, instead of by the county judge. Held, that even if the bond was invalid for that reason, it did not affect the validity of the assignment; but that as the special county judge was elected under authority of the Constitution (Const, of 1846, art. 6, § 15, as amended in 1869, art. 6, § 16) and of an act of the legislature (chap. 363, Laws of 1864), with power to perform the duties of county judge, the bond was properly approved by him. (Seymour v. Mercer, 13 How., 564; People v. Main, 20 N. Y., 434.) The referee found, from evidence the court deemed sufficient, that the parol contract for the sale of the real estate was abandoned by mutual consent of the parties. He thereupon allowed plaintiff the amount of the account, as proved,, less the value of the use and occupation of the premises while Syme was in possession. Held, no error. J. M. Dunning for the appellant. George W. Miller for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.