Page:Federal Reporter, 1st Series, Volume 1.djvu/603

 ANSHUTZ V. HOEBB. 59& �as a preference, the assignee may maintain an action against the crediter to recover the proceeds of sale in his hands, or the value of the property. Showan v. Wherritt, 7 How. 627; Clarion Bank v. Jones, 21 Wall. 325. The^e cases, it seems to me, authoratively determine that the assignee of Nicholas Wurzell, Sr., was not concluded by the distribution made in the state court. �But it is strenuously argued that as the execution of Lind- say, Sterrett & Co. was confessedly good, and would have taken the f und produced by the sherifï's sale had Hoerr's exe- cution been set aside or exoluded, the assigaee had no interest in the fund. To sustain this position the defendant relies upon the cases of Wilcoeks v. Waln, 10 Ser, & Eaw. 380 ; Manufacturers' e Mechantes' Bank v. Bank of Pa. 7 Watts & Ser. 335; Schultz's Appeal, 1 Barr. 251; and Tomh's Ap- peal, 9 Barr. 61. The principle of these cases is that the last of three or more liens, in the order of their succession, being superior to the first but inferior to the second, gains no practical advantage from its priority, because it could not be preferred to the first without also beiug preferred to the sec- ond, to which it is subsequent. And the argument here is that the assignee could not have taken the fund from Lind- say, Sterrett & Co., because their execution was valid ; and as- he was not entitled to it as against them, he could not pre- vent the application of the fund to Hoerr's execution, -which was prier to that of Lindsay, Sterrett & Co. In other words,. it is claimed that the fund raised by the sheriff 's sale belonged to one or the other of these execution creditors, to the exclu- sion of the assignee. �But, as applicable to the case before us, vire cannot accept as Sound the defendant's reasoning, or adopt the conclusion to which it leads. It is not now necessary.to consider what would have been the proper disposition of the fund realized by the sherifif's sale had the assignee been a claimant in the court of common pleas. He was not bound to go into that court, and, as we have seen, is not concluded by the distribu- tion there made. The case in hand is not a contest for prior- ity between lien creditors. The assignee recovers the money ��� �