Page:Federal Reporter, 1st Series, Volume 1.djvu/604

696 FBDEBAL EEPOETEB. �in the defendant 's hands by the assertion of a superior title conferred upon him by the bankrupt law. The defendant is in no better position than if the money had been paid to him directly by the bankrupt in fraud of the law. Therefore, as against the assignee, he cannot retain the money. Moreover, Lindsay, Sterrett & Co., it will be perceived, having taken nothing by their execution, are thrown upon the general assets of the bankrupt, and justice to the general creditors requires that the fund in the defendant's hands — the fruit of an unlaw- f ul execution — shall corne to the assignee for distribution pro rata among the creditors. �Upon the questions of law raised by the defendant's lifth, sixth and seventh points the opinion of the court is with the plaintif. �The verdict of the jury was for the value of the goods sold by the sheriiï. But clearly the defendant's liability does not extend so far. His writ did not authorize the sheriflf to sell more of the bankrupt's goods than was necessary to satisfy that execution. In fact the sherifF sold by virtue of three writs oîji.fa., andone of these was unimpeachable. Part of the prooeeds of sale went to the second execution creditor, against whom the assignee is prosecuting a suit to recover the money so paid to him. The extent of the defendant's liability is indicated in his fourth point. The sheriff applied to thecosts of his writ $128.45, and to his judgment $803.46, or in ail $931.91. The plaintifï, therefore, is only entitled to recover in this action the last mentioned sum, with interest from the time of payment to the defendant, March 6, 1876. Upon that basis the true verdict, on May 30, 1879, would have been for the sum of $1,112.62. �And now, to-wit, February 17, 1880, it is ordered that judgment be entered upon the questions of law, reserved in favor of the plaiiitilï, ;or the sum of $1,112.63, with interest from May 30, 1879, ion ohsiante verdicto. ��� �