Boardman v. Halliday , 3 Sarat. Ch. Sent. 21 ( 1843 )

The chancellor decided in this case that an assignment of ° ⅜ a debtor’s property in trust for the payment of his debts, r r J r which confers upon the assignee a power to give future preferences among the creditors, or to pay the debts of the assignor in such order of priority as the assignees should judge most just and equitable, is fraudulent and void. !

■Deputy shorin'; after resignation of sheriff rnideS\r/acl,>’

That the office of a deputy sheriff is vacated by the resist nation ot the sheriff; and that to enable a deputy rightfully t0 discharge the duties of the office under the person upon whom the duties of sheriff devolve, upon his resignation, (i. e. the under sheriff,) a new appointment must be made by the under sheriff, and recorded in the county clerk’s office ; and the deputy must be resworn.

That where there is but one office there cannot be an officer de jure and an officer de facto, both in possession of the office at the samo time.

That where an under sheriff is in the rightful possession of the office of sheriff, a defacto deputy of the former sheriff cannot legally levy an execution. But that to make such levy valid as to third persons it must appear he was de facto in the exercise of the office of a deputy of the then acting sheriff.

Decree declaring assignment void as against complainants, so far as relates to the real estate upon which they had a lien or would have had a lien but for the assignment, and which had not been conveyed to a bona fide purchaser at the time of docketing their judgment. As to the rest of the property bill dismissed without prejudice &c. No costs to either party.