Page:Federal Reporter, 1st Series, Volume 1.djvu/602

 594 l'EûEiiAL EBPOaTEE. �he brought a suit, now pending in this court against Klein, to set aside the alleged unlawful preference acquired by him. But it is conceded on ail hands that the judgment and execu- tion of Lindsay, Sterrett & Co. were valid and unimpeachable. �At the trial of this case the defendant, Hoerr, prayed for the foUowing instructions, viz. : �"4. That the levy and sale by the sheriff having been made before commencement of proceedings in bankruptcy upon other executions, issued upon judgments which wereunques- tionably good and valid under the bankrupt law, the said sale cannot be impeached; and the only claim the assignee could make would be to the fund realized from the sale, and the defendant would only be liable for the amount of the fund received by him. �"5. That the evidence showingthat the execution of Lind- say, Sterrett & Co. would have been entitled to the fund pro- duced by the sheriff's sale, if execution of defendant was set aside, the assignee could have no interest in said fund, and cannot recover. �"6. That the sale of the sheriff having been regular, and having taken place before proceedings in bankruptcy were commenced, the assignes should bave made his claim to the state court, which had jurisdiction of the fund, and the money having been distributed according to law in said court, its judgment cannot now be impeached. �"7. That the declaration in this case claima the value of the goods as damages, and the said goods having been sold by dus prooess of law, under a judgment good under the pro- visions of the bankrupt law, there can be no recovery." �The questions raised by these four points are the question» of law reserved. The verdict of the jury establishes that Philip Hoerr's judgment and execution were fraudulent, as an unlawful preference under the bankrupt law. Now, it is well settled that a security or priority in fraud of the bankrupt act, gained by a suit in a state court, bas no better claim to protection than a payment by the debtor himself, and if the property of a bankrupt has been seized and sold under pro- cess from a state court, issued on a judgment which is void ��� �