Page:Federal Reporter, 1st Series, Volume 4.djvu/337

 lilNDEB r. XSWIS. $23 �I have not treated the overruling of theae demurrers as don- clusive on this point, because the bill alleges that these leyies of execution were iraudùlent and coUusive, and tberôfore preferences underthebankruptlaw; and as the ground otthe demurrers was general want of equity, and not the improper joiader of causes of action or multifariousness, and no rea- Bons were assigned by the leamed judge who overruled the demurrers, his decision may possibly bave been made on the averments that these levies were unlawful preferences. No proof, however, bas been given to sustain these averments. Tbere seems to be no force in the suggestion that the ques- tion whether the assignment was absolutely void by the law of New York could not be raised and tried in this suit. In fact, that defence is set up in the answer, and put in issue by the replications. It bas been tried and determined adversçly to the defendants. If it had been determined in their favor, it seems that they would have been entitled to a decree dis- missing the bill as to them. In re Biesenthal, 18 N. B. E. 120. �It is further objected that the complainant is not entitled to a decree against these defendants because it is neither averred nor proved that the complainant, before suit brought, made a demand for the money now sought to be recovered, and that the defendants refused to pay it. The objection comes rather late and bas no especial merit, but possibly it is open at this stage of the case. The cases, however, cited to the effect that, where a party has corne lawf ully to the pos- session of property, replevin or trover will not lie till after a demand and refusai, do not apply to a case where, before suit brought, the defendant has actually disposed. of the goods, and put it out of his power to restore them. �It is also suggested that the assignment was absolutely void, because, at the time of the levy, schedules and a bond bad not been filed, as required by the laws of New Tork. This point seems not to have been made upon the former hearing, nor is any authority cited in support of it now. The argument against the assignment before was that it was not intended for the benefit of creditors, but was fraudulent, in ����