conflict with the law of Congress than a suit prosecuted to judgment and execution; in either case the assignee in bankruptcy would take the debtor's property out of the control of the State court. The power given to Congress over this subject is plenary, and when it has been exercised, all State legislation, and all proceedings in State courts, which actually come in conflict with it, must yield to the paramount authority of the general government. It would seem necessarily to result, that when Congress has constitutionally passed a law upon this subject, State law, designed to accomplish substantially the same purpose, must fall.

Uniformity cannot exist with jurisdiction in the State and federal courts in operation at the same time over the same subject-matter, to secure substantially the same result.

The fact that under certain conditions the State courts are vested with authority to control and administer the debtor's property for the benefit of creditors, is not, of itself, conclusive as to the vitality of the State law.

It is held that a State insolvent law, which supplies the mode of administering insolvent estates under such assignments made by debtors for the benefit of creditors as would be valid at common law, without the aid of any statute, and which could be enforced by a court of equity like any other trust, is not suspended. Hawkins' Appeal, 8 Am. L. R. 205; Beck v. Parker, 65 Penn. 262.

So when a bankrupt act expressly excepts a class of cases, it must have been the intention of Congress not to interfere in such specified class with the laws of the several States. In re Wintermitz, 18 Pittsburgh L. J. 61.

This recognizes the corollary that in a case not provided for by the national authority, the force of State legislation is undisturbed, for no conflict can possibly arise between the two jurisdictions.

Our State law in question is of this class, where a debtor, prior to the institution of proceedings in bankruptcy, is imprisoned on civil process issued out of the State court, the federal law furnishes no means of discharging him from confinement, and therefore, if this State law is held to be suspended, the prisoner is without relief, and subject to lifelong incarceration When the federal law is put into actual operation, the superior title of the assignee in bankruptcy to property of the debtor would assert itself in the same way that it would prevail over the title of the sheriff acquired by virtue of his executions, in certain specified cases.

1 The Poor Debtor laws of Massachusetts continued to be enforced during the existence of the bankruptcy act of 1867 and the provisions for imprisonment of the debtor in case of fraud were held unaffected by the provision of the national act that "no bankrupt should be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action unless the same is founded on some debt or claim from which his discharge would not release him." Stockwell . Silloway, 100 Mass. 287, 105 Mass. 517. Similarly in Pennsylvania, Scully v. Kirkpatrick, 79 Pa. 324.

A law giving a creditor a right to prevent his debtor from leaving the State

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But if our insolvent laws shall be regarded as bankrupt laws, and it is held that they are superseded or suspended, the act under which this bond is given is still in full force, and the bond is obligatory. Under that construction, it may be questioned whether, while the act of April 15th, 1856, remains upon our statute book, the sheriff could refuse to accept the bond. The condition is, that the debtor shall apply for the benefit of the insolvent laws of this State, and if he fails to be discharged, shall surrender himself to the officer The undertaking is in the alternative, either to obtain a discharge under a law which is no longer effective, or to return to the condition from which he was released. Failing in the former, he must perform the latter; this obligation is neither to do that which is unlawful or impossible. When application is made to the State court for a discharge, the debtor would be remanded to custody, either because he did not comply with the provisions of the State law, or for the reason that the State court had no power in the premises.

As the pleadings stand, the defendant has failed to comply with the condition of his bond, and the demurrer, therefore, should be overruled, with costs.1

SUPREME JUDICIAL COURT OF NEW HAMPSHIRE, JUNE TERM, 1874. [Reported in 54 New Hampshire, 333.]

SARGENT, C. J. The motion to dismiss in this case is founded upon Gen. Stats., c. 167, § 10, as follows: "When, upon representation of the guardian of any insane person or spendthrift, the judge is satisfied that estate of the ward is not sufficient to discharge the just debts due therefrom, he may decree that said estate be set

remained in force concurrently with a national act.
885.

Gollschalk v. Meyer, 28 La. An.

An assignment made under insolvent laws of Pennsylvania, the object of these laws being to discharge the debtor from liability to imprisonment only, was held valid though the debtor was subsequently adjudicated a bankrupt under the national act of 1841. Sullivan v. Hieskill, Crabbe, 525. See also Ex parte Rank, Crabbe, 493, and conf. Barber v. Rodgers 71 Pa. 362. So, under a similar statute in New York, Berthelon v. Betts, 4 Hill, 577. See also Shears v. Solhinger, 10 Abbott's Prac N. s. 287. In Rhode Island the law for the relief of poor debtors was held to continue in force after the passage of a national act: Jordan v. Hale, 9 R. I. 218; but the insolvent law was held to be suspended, though the debtor was not by its terms discharged from his debts, and the only material difference between it and the law for the relief of poor debtors was that the former relieved the debtor from liability to arrest for any of his debts while the latter only relieved him from liability to arrest for a particular debt. In the matter of Reynolds, 8 R. I. 485. This decision seems, however, somewhat discredited by Jordan v. Hale, 9 R. I. 218, 222.

1 Conf. Barber v. Rodgers, 71 Pa. 362.

tled as insolvent, and thereupon such proceedings shall be had, decrees made, appeals allowed, suits disposed of, and the accounts of the guardian adjusted, as in the case of insolvent estates of deceased persons."

In this case, it is agreed that the defendant was duly decreed to be an insane person by the Probate Court, and a guardian was appointed. The guardian made the proper representation to the Probate Court, and the defendant's estate was thereupon decreed to be administered as insolvent; and after this, at this term, the guardian appears and moves that this action, which was commenced October 24, 1873, be dismissed in consequence of such proceedings in the Probate Court.

This is the same way a suit would be disposed of in case of a deceased person whose estate was decreed to be administered as insolvent. No action shall be commenced or prosecuted against an administrator after the estate is decreed to be administered as insolvent, but the cause of action may be presented to the commissioner and allowed, with the costs of any action pending at the time of such decree - Gen. Stats., c. 179, § 8; and in such cases no plea is necessary setting forth the decease or the insolvency. When the facts are suggested, and the court is satisfied that such decrees have been made in the court of probate, the actions are discontinued in this court at once.

It is urged in argument that the plaintiffs should be heard upon the question whether the party is insane, etc., but that could not be in this court. The Probate Court is the tribunal selected by law to settle that question; and, when once settled there, it is settled for all other places and all other courts. This must be so from the nature of the case. If it were not so, the same man might be held both sane and insane at the same time. The case of Jones v. Jones, 45 N. H. 123, is directly in point, under provisions of the statute precisely like the present, and must control this case.

The authorities cited, that the general bankrupt law of the United States supersedes all State insolvent laws, do not apply. The laws for the settlement of the estates of deceased persons, though they may provide for settling estates in the insolvent course, yet are not regarded as general insolvent laws. It would not be claimed, probably, that the statute for the settlement of the estates of deceased persons in the insolvent course was superseded by the general bankrupt law; and if not, then this would not be, because this statute provides for settling the estates of insane persons in all respects like the settling of the estates of persons deceased.

The motion to dismiss must be granted.

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EBERSOLE & MCCARTY v. ADAMS, &c.

COURT OF APPEALS OF KENTUCKY, WINTER TERM, 1873.

[Reported in 10 Bush, 83.]

JUDGE LINDSAY delivered the opinion of the court.

The petition in this action was framed under the provisions of the act approved March 10, 1856, entitled "An act to prevent fraudulent assignments in trust for creditors and other fraudulent conveyances." It is alleged that the conveyance from Adams and wife to Kirk was made and executed in contemplation of insolvency, and with the design. to prefer one or more creditors to the exclusion in whole or in part of others; and under the general prayer for relief the court is authorized to declare that said conveyance operated as an assignment and transfer by Adams of all his property and effects for the benefit of all his creditors, to take possession of such property and effects, and make distribution among the creditors as directed by said act.

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To the petition appellees demurred, upon the ground that the act of 1856 is " a State system of bankruptcy," . . . and that it was superseded and in effect repealed by the act of Congress of the United States, passed in pursuance of express constitutional power, entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867.

The demurrer was sustained, a personal judgment rendered against the debtor Adams, and the petition to the extent that relief was asked against Kirk, under the provisions of the act of 1856 dismissed.

This act is not a bankrupt law nor an insolvent act. It has none of the characteristics of either, except that it provides for the appropriation of the property of the debtor to the payment pro tanto of all his creditors.

An assignment or transfer made in contemplatiom of insolvency, and to prefer creditors, is an act of bankruptcy under the act of Congress; but this fact does not deprive creditors of the right to apply to the State courts for relief, in case they choose to do so. Notwithstanding the Federal Bankrupt Act, the State courts have full and complete power to relieve against all frauds, actual or constructive, except in cases in which a court of bankruptcy has first taken jurisdiction, or where the relief asked in the State courts is subversive of the rights of parties to a pending proceeding in bankruptcy subsequently instituted. If the act of 1856 be regarded as a State bankrupt law, there is still no reason why the Circuit Court should not enforce it.

State legislatures have the power to pass bankrupt or insolvent laws, provided there be no act of Congress in force establishing a uniform system of bankruptcy conflicting with such law. It was so held by Mr. Justice Johnson of the Supreme Court in the case of Ogden v. Saunders, 12 Wheat. 273. And in the subsequent case of Boyle v.

tion

"the

Zacharie, 6 Pet. 348, Chief Justice Marshall stated that judges who were in the minority of the court upon the general quesas to the constitutionality of State insolvent laws, concurred in the opinion of Mr. Justice Johnson in the case of Ogden v Saunders," and hence that that opinion was therefore to be considered as no longer leaving the question open for controversy. The binding force of this decision was again recognized by the Supreme Court in the case of Baldwin v. Hale, 1 Wall. 223. Judge Cooley, after reviewing all the cases bearing upon this subject, states the settled law to be that "the several states have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is permanent, and State enactments in conflict with those of Congress upon the subject must give way."

The State law under consideration does not conflict with the law of Congress. Except to the extent that the distribution by the State court of the assets of the debtor's estate relieves him from liability to his creditors, his obligation and the right of the creditors still to look to him and to his future acquisitions for such amounts as may remain unpaid continue unimpaired.

All the creditors may make themselves parties to the proceeding in the State court, and the assets of the debtor are marshalled and distributed substantially in the same manner as the act of Congress provides shall be done in a proceeding in bankruptcy.

The State law being in every essential consistent with the act of Congress, there is no reason why the latter act shall be regarded as superseding or repealing the former. The court below erred in sustaining the demurrer, and in dismissing appellants' petition.

The judgment is reversed, and the cause remanded with instructions to overrule the demurrer, and for further proceedings consistent with this opinion.

The appeal is dismissed as to Mrs. Adams, it not appearing that appellants have any claim against her, and no reason being shown for making her a party either to the proceedings in the Circuit Court or to this appeal.1

Linthicum v. Fenley, 11 Bush, 131 acc.

Statutes making a preference operate as a general assignment or as ground for a receiver of all the debtor's property exist also in New Mexico, Tennessee, Wisconsin. In Tobin v. Trump, 3 Brewst. 288, it was held that a national bankruptcy act superseded a law of Pennsylvania authorizing the attachment and transfer to trustees of all the property of a debtor who absconded or concealed himself with intent to defraud.

A receiver may be appointed by a State court of an insolvent corporation, though proceedings in bankruptcy might have been begun, and unless the corporation is afterwards put into bankruptcy the receiver may distribute the assets of the corporation. Chandler v. Siddle, 10 B. R. 236; State v. Superior Court, 20 Wash. 545. See also Watson r. Citizens' Savings Bank, 5 S. C. 159. Nor is requesting or allowing the appointment of a receiver in itself an act of bankruptcy under the present statute. v. Security Bank, 103 Fed. Rep. 436 (C. C. A).

Vaccaro