Page:Federal Reporter, 1st Series, Volume 4.djvu/333

LINDEB V. LEWIS. 819 �made against tbem. It is suggested on the part of the com- plainant that the proper way to raise this question is upon an application for a rehearing. The respondents have the right, on the application for a final deoree, to raise the question. At the final hearing of the cause aU the previous interlocutory orders in relation to the merits are open for revision and under the control of the court. �If, therefore, there has been, as is suggested, an obvions error of law in the former decision, this is a proper stage of the case for its correction, {Towniquet Y.Perkins, 16 How. 82;) and as the points now urged in favor of these respondents were not presented to the court upon the former hearing, I bave carefully considered tbem, treating them as undeter- mined in the decision herein before rendered. The facts bave been already stated. The sheriff levied on the property included in the voluntary assignment, and the goods were sold, and the proceeds paid over to the judgment creditorsin satisfaction of their executions after the execution and deliv- ery of the voluntary assignment, and before the filing of the original petition in bankruptcy. The suit is brought against the voluntary assignee, the sherifip, and the judgment cred- itors — First, to avoid the assignment as in contravention of the bankrupt law ; and, secondly, to recover of the respond- ents the property, or the proceeds of such parts of it as they bave disposed of. It has been determined in the case that the assignment -was void, as against the assignee in bank- ruptcy, on the ground alleged in the bill, that it was made in contemplation of insolvency, with intent to def eat the oper- ation of the bankrupt law, and it has been set aside. And it has been held that under the authority of the case of In re Biesenthal, 15 N. B. E. 228, the title of the assignee in bank- ruptcy related back to the time of the execution of the volun- tary assignment, and the execution creditors took notbing by their levy. �It is now suggested that, upon this theory of the case, the only remedy of the assignee in bankruptcy is by an action at law in the nature of an action of trespass for interfering with his property, or of an action o£ trover for its conversion; ����