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(234 S. W.)

ly cause such offender or offenders to be apprehended and brought before them or some other justice of the peace for the county in which such offense may be committed, who shall on the proof of the offense, fine them not exceeding five dollars, or bind them in sufficient security for their appearance at the next circuit court, when they shall be proceeded against according to the provisions of the act [of 1801, chapter 35].

"2. It shall be the duty of all coroners, sheriffs, and constables, whenever any offense may be committed within the meaning of this act, against the rules or regulations of any worshipping assembly, or to the disturbance or annoyance thereof, and which may happen within their own knowledge, or observation, they are hereby authorized and required forthwith to bring such offenders before some justice or justices of the peace, for the county, there to be dealt with as required by the first section of this act."

ing different punishments for the same offense, said:

"To effect a repeal, it is not necessary that the latter statute should have an express repealing clause; if it be a legislation upon the same subject, and contain different or inconsistent provisions, it operates as a repeal. And as it regards the case now before the court, the doctrine seems to be well settled in many cases to be found in the books.

"It is a doctrine, to the correctness of which we know of no exception in any of the reported cases, that in all cases where a statute creates a different punishment, the former mode is thereby repealed and the rule operates whether the punishment thus altered, is diminished or increased. 6 Bac. Abr. (Am. Ed.) 372; 1 Leach, 306. 4 Burr, 2086."

In that case the court was dealing with the statute of 1799 (Acts 1799, c. 20), which prescribed death as punishment to be inflict

The compilers of the Code of 1858 consoli-ed on those guilty of horse stealing, and the dated these provisions of the Acts of 1801 and 1815 and carried them into the Code as section 1511 in the language which we have heretofore quoted.

The provisions of section 4853 became the law for the first time by the enactment of the Code of 1858.

It is quite manifest we think that there is irreconcilable conflict between the provisions of the two sections of the Code with respect to the punishment prescribed for the violation of the offense. Other provisions of the two sections may very well stand. Section 1511 deals with the duties of public officers with respect to arresting and bringing to trial offenders against or disturbers of religious assemblies. Section 4853 does not deal with that subject, but it does specifically provide that the offender shall be fined not less than $20 nor more than $200, and may also be imprisoned, not exceeding six months, in the county jail.

We recognize the well-established rule of interpretation of statutes in pari materia; that is, that they must be considered in connection with each other and be reconciled, if the language will reasonably permit, and the further rule of construction that repeals by implication are not favored. Nevertheless where there are irreconcilable conflicts between two statutes on the same subject, one or the other, or both, must necessarily fail. These two statutes having been brought into our Code at the same time, by the same act of Legislature, there is of course no express repeal by one of the other, and if one is repealed it must be by implication. Bennett v. State, 2 Yerg. 472. Bailey v. Drane, 96 Tenn. 16, 33 S. W. 573.

"The test always is," as said by the court in the Bennett case, “did the Legislature intend by the latter statute to repeal the former."

In the case of Roberts v. State, 2 Overt. 425, the court, dealing with statutes provid

statute of 1807 (Acts 1807, c. 73, § 4), which provided that a person guilty of horse stealing should receive on his or her bare back a number of lashes, not exceeding 39, and be imprisoned at the discretion of the court for not less than six months and not more than two years, should sit in the pillory two hours on three different days, and should be rendered infamous-and be branded with the letters H. F. in such manner and on such part of the person as the court shall direct. Al though there was no repealing clause in the latter act, the court held that it did repeal by implication the act of 1799.

In the case of Taylor v. State, 7 Humph. 510, the defendant was indicted for selling spirituous liquors to a negro slave without a written permission from his owner. The defendant demurred to the indictment upon the ground that the charge of selling spirituous liquors to a slave without written permission of his owner was brought under chapter 74 of the Act of 1829, whereas chapter 141 of the Acts of 1841-42 provides that no person shall sell intoxicating liquors in any quantity to a slave without permission from his owner." The latter statute enlarges the prohibition of the act of 1829 and increases the punishment. The court said, with respect to the repeal of the former act by the latter act:

"Now this statute enlarges the prohibition of the act of 1829, and increases the punishment. of 1842 necessarily repeals the act of 1829, and Upon principles of construction, then, the act no bill of indictment can now be preferred under the act of 1829."

The present case falls clearly within the doctrine of the cases just referred to. Section 4853 fixes the minimum penalty larger that the maximum penalty prescribed by section 1511 for the same offense. Both statutes cannot stand.

The only difficulty in determining which of the two statutes shall stand grows out of the

fact that both statutes were brought into the Code of 1858, which Code was adopted by one act. We find, however, that section 1511 is practically a compilation of previous acts of the Legislature, whereas section 4853 came into force for the first time by the enactment of the Code. Under these facts section 4853 is the latest expression of the Legislature on the subject. Adkins v. Arnold, 238 U. S. 417, 35 Sup. Ct. 118, 59 L. Ed., p. 294. [3] It results, therefore, that the punishment prescribed by section 1511 of the Code is by implication repealed by section 4853, and, as the judgment pleaded as a former conviction imposed a fine less than the minimum fixed by section 4853, that judgment cannot be successfully pleaded in bar of the indictment in this case. State v. Layne, su

pra.

The judgment of the circuit court is therefore affirmed.

rupt and "all of the rights, title, claims, interest, and demands, both in law and equity, of the trustee in bankruptcy, as such in," etc., assignee was entitled to bring suit to recover under a contract void as being in restraint of money paid to a third person by the corporation trade.

6. Bankruptcy ~268 Where trustee discharged assignee of bankrupt's assets should sue in own name.

Where assignee of assets of bankrupt was entitled to sue third person to recover money paid by bankrupt under void contract, the suit should be brought in the name of the assignee, trustee in bankruptcy having been discharged, in view of Thomp. Shan. Code, § 4492; but where a suit was brought in the name of the trustee for the use of the assignee, the name of the trustee as a nominal plaintiff should have been rejected as surplusage, and it was error to dismiss the bill.

Appeal from Chancery Court, Knox County; Chas. Hays Brown, Chancellor.

Suit by J. S. Adcock, trustee, for the use of S. L. Lewis, against the New Crystal Ice

ADCOCK v. NEW CRYSTAL ICE CO. et al. Company and another. Decree for defend

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Where, in determining validity of claim, bankruptcy court held that a contract under which claim was made was void, the claimant, in an action in state court by assignee of bankrupt to recover money paid under the contract, cannot claim the legality of the contract.

2. Corporations ~547(1)—Creditors can recover money paid out under void contract.

Creditors of a bankrupt corporation may recover money paid by it to a third party under a contract void because in restraint of trade, since equity regards the property of the corporation as held in trust for the payment of debts of the corporation.

3. Bankruptcy 245, 250(1) Trustee has rights of creditors; trustee may recover money paid out under void contract.

Trustee of bankrupt corporation may in general assert the right of creditors respecting the bankrupt estate, and may recover money paid out by the corporation under a contract void as being in restraint of trade.

4. Assignments 27-Conveyance of property not void because grantee may have to bring suit.

A bare right of action cannot be assigned, but a conveyance of property is not void because the grantee may have to bring suit to enforce his right to the property conveyed.

ants, and plaintiff appeals. Reversed and rendered.

L. C. Ely, of Knoxville, for J. S. Adcock. Lucky, Jones & Andrews, of Knoxville, for New Crystal Ice Company.

GREEN, J. This suit was brought by J. S. Adcock, trustee, for the use of S. L. Lewis, against the New Crystal Ice Company and J. H. Lynn, one of the officers of that company, for the purpose hereafter appearing. The chancellor dismissed the bill, and the complainants have appealed to this court. J. S. Adcock is or was the trustee in bank

ruptcy of the North Star Ice & Coal Company, a concern formerly doing business in Knoxville. Lewis purchased the assets of the concern at the trustee's sale. The defendant New Crystal Ice Company has been for a number of years engaged in the manufacture and sale of ice in Knoxville.

In the spring of 1917 a contract was made between the two ice companies, the nature of which was set out in the report of the referee in bankruptcy during the administration of the affairs of the North Star Ice & Coal Company in that court. The New Crystal Ice Company filed a petition in that cause setting up a claim for about $3,400 alleged to have been due it from the bankrupt corporation. This claim was disallowed by the referee. Speaking of the contract between the two corporations on which the claim was founded, he said:

"Just what the specific terms of the agree5. Bankruptcy 268-Assignee held entitled ment were the referee was unable to deterto sue for money paid out by corporation un- mine; but he found that the substance and efder void contract. fect of the agreement was that the claimant Where trustee of a bankrupt corporation was to refrain from manufacturing and selling conveyed to assignee the property of the bank-ice in the city of Knoxville, Tenn., during the

(234 S. W.)

year 1917 for a consideration of $5,000; which, right of creditors to pursue it into whosesoever consideration in part is the basis of the claim possession it may be transferred, unless it in controversy. The referee found as a fact has passed into the hands of a bona fide purthat the claimant did not lease nor turn over chaser." Vance & Kirby v. McNabb Coal, etc., the possession of its plant to the bankrupt as Co., 92 Tenn. 47, 60, 20 S. W. 424. lessee, nor contract that the same should be operated in any way by the bankrupt as lessor. He also found that the contract was not for the sale of 4,000 tons or any other amount of ice. He found that the contract was one to prohibit the production of ice by claimant's plant during the heated season of the year 1917, and was for the purpose of reducing the volume of ice production in the city of Knoxville during that season, destroying competition in the ice trade, and thereby bolstering up the selling price of ice to the consumer during that season."

"The doctrine that corporate assets are a trust fund, at least to the extent that creditors are entitled in equity to payment of their debts before any distribution of corporate property is made among stockholders, is fully established in Tennessee, and creditors have a right to follow its assets or property into the hands of any one who is not a holder in good faith in the ordinary course of business." Jennings, Neff & Co. v. Ice Co., 128 Tenn. 231, 236, 159 S. W. 1088, 47 L. R. A. (N. S.) 1058.

Clearly, therefore, these creditors might successfully maintain a suit to regain this

The referee announced his conclusion as fund diverted to an unlawful purpose, the follows:

"That this contract was illegal and void, because in restraint of trade under the common law; that it was illegal and void because in violation of the statutes of Tennessee prohibiting unlawful trusts and trade combinations; and that therefore the notes based upon that contract and proven in this cause by claimant were not enforceable against this estate in bankruptcy."

Upon review the judge of the United States District Court confirmed the foregoing finding of fact by the referee and adjudged the conclusion of law reached by the referee was likewise sound.

This controversy in the bankruptcy court arose by reason of an effort of the New Crystal Ice Company to collect the balance due it under such contract. The bill herein filed is one by the assignee of the trustee in bankruptcy of the insolvent corporation to recover some $1,700 paid by the bankrupt corporation to the New Crystal Ice Company in pursuance of the terms of said contract. [1] The determinative question here, therefore, was the same question presented to the bankruptcy court, and the decision there is determinative of the matter here. This suit is between one of the parties and the privy in estate of the other party to the former controversy. The record of the bankruptcy court is properly brought before us. The question of the legality of the contract between the two corporations having been determined in a court of competent jurisdiction cannot be raised again in litigation between the same parties, although the form of action is different. Gudger v. Barnes, 51 Tenn. (4 Heisk.) 571; State v. Bank, 95 Tenn. 221, 31 S. W. 989; Memphis City Bank V. Smith. 110 Tenn. 337, 75 S. W. 1065.

[2] There can be no doubt but that the creditors of the bankrupt corporation might have recovered from the defendant herein the sum of money paid to the latter on account of this illegal contract.

"Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the 234 S.W.-22

trustee out of the way.

Benner v.

[3] That the trustee himself might have recovered is equally clear, for he takes not only the right and title of the bankrupt, but represents the bankrupt's creditors, and may in general assert the rights of creditors respecting the bankrupt estate. Scandinavian-American Bank, 73 Wash. 488, 131 Pac. 1149, Ann. Cas. 1914D, 702; Bailey v. Wood, 211 Mass. 37, 97 N. E. 902, Ann. Cas. 1913A, 950; Sherrill v. Hutson, 187 Ala. 189, 65 South. 538, 32 Am. Bankr. Rep. 532; Mackall v. Pocock, 136 Minn. 8, 161 N. W. 228, L. R. A. 1917C, 390, 38 Am. Bankr. Rep. 680; Collier on Bankruptcy (15th Ed.) p. 70; Loveland on Bankruptcy (3d Ed.) p. 619; 3 R. C. L. 220.

The status of a trustee in bankruptcy differs from that of an assignee of a conveyance for the benefit of creditors in the respect just noted. The latter succeeds only to such rights as the assignor has. The doctrine in pari delicto applied in Memphis Lbr. Co. v. Security Bank & Trust Co., 143 Tenn. 136, 226 S. W. 182, to repel the suit of an assignee, cannot be applied to a trustee in bankruptcy who by statute represented the creditors.

It is contended by the defendant that the right to bring this suit did not, however, pass to Lewis under the trustee's sale of the bankrupt estate. Certainly the deed of the trustee to Lewis made in conformity to the direction of the court was broad enough in its terms to carry the right to bring this suit.

The description contained in that deed concludes as follows:

interest and demands, both in law and equity, "And finally all of the rights, title, claims, of the trustee in bankruptcy as such in, to, and against all the assets of the bankrupt as above set out, and against all persons, firms, and corporation, and including the good will of the bankrupt's business, with right to sue and defend the same in as full a manner as the trustee could and should, as such trustee, sue and defend the same, so as to place him, said S. L. Lewis, the purchaser, in the same attitude and in possession of all rights which the bankrupt itself or the trustee in bankruptcy, had or has

in relation to said estate at the time the sale incidental to the property conveyed." Traer v. bankruptcy was made and confirmed, and which Clews, 115 U. S. 528, 6 Sup. Ct. 155, 29 L. Ed. have resulted from the filing of the petition in bankruptcy and the adjudication thereunder."

[4] It is said, however, that a bare right

of action cannot be assigned, and this is true. A conveyance of property, however, is not void because the grantee may have to bring suit to enforce his right to the property conveyed.

The Supreme Court of the United States in disposing of a similar contention involving the validity of a transfer by a trustee in bankruptcy said:

"The rule is that an assignment of a mere right to file a bill in equity for fraud committed upon the assignor will be void as contrary to public policy and savoring of maintenance. But when property is conveyed, the fact that the grantee may be compelled to bring a suit to enforce his right to the property does not render the conveyance void. This distinction is taken in the case of Dickinson v. Burrell, L. R. 1 Eq. 337. The facts in that case were that a conveyance of an interest in an estate had been fraudulently procured from Dickinson, by his own solicitor, to a third party for the solicitor's benefit, and for a very inadequate consideration. Dickinson, ascertaining the fraud, by a conveyance which recited the facts, and that he disputed the validity of the first conveyance,

transferred all his share in the estate to trustees for the benefit of himself and children. The trustees filed a bill to set aside the fraudulent conveyance, upon repayment of the consideration money and interest, and to establish the trust. The Master of the Rolls, Lord Romilly, in sustaining the bill, said: "The distinction is this: if James Dickinson had sold or conveyed the right to sue to set aside the indenture of December, 1860, without conveying the property, or his interest in the property, which is the subject of that indenture, that would not have enabled the grantee, A. B., to maintain this bill; but if A. B. had bought the whole interest of James Dickinson in the property, then it would. The right of suit is a right in

467.

[5] The New Crystal Ice Company held the the illegal contract as a trustee in its own sum of money received by it on account of wrong for the benefit of the creditors of the itors had the equitable title to such fund North Star Ice & Coal Company. The credwhich passed to the trustee in bankruptcy, and he, as their representative, sold this property for their benefit to Lewis, his assignee. The assignee accordingly is entitled to bring this suit to enforce his right to the property.

[6] Some objection has been made to the manner in which this suit was brought in the name of Adcock, trustee for the use of Lewis. It is said that Adcock had been discharged as trustee before the bill herein was filed. This is true. Thompson's Shannon's Code, § 4492, provides:

"In all suits prosecuted in the name of one person for the use of another, the person for whose use the suit is brought shall be held the real plaintiff of record."

Lewis being entitled to sue himself, it was altogether unnecessary to bring the suit in the name of Adcock, trustee for his use, and the unnecessary use of the name of a nominal plaintiff will be rejected as surplusage. Enley v. Nowlin, 60 Tenn. (1 Baxt.) 163; Kyle v. Ewing, 73 Tenn. (5 Lea) 580.

We are therefore of opinion that the chancellor was in error in dismissing this bill, and a decree will be entered here in accordance with the prayer of the bill for the amount paid on account of said contract by the North Star Ice & Coal Company to the New Crystal Ice Company, together with interest from the filing of the bill and the cost of this cause.

(284 S.W.)

STATE, ex inf. MCALLISTER, Atty. Gen., ex rel. MANION et al. v. ALBANY DRAINAGE DIST. (No. 22599.)

(Supreme Court of Missouri, in Banc. Oct. 8, 1921.)

1. Quo warranto-33-Attorney General may file information in any matter affecting public interest.

Kelso & Kelso, of Grant City, Perry S. Rader, of Jefferson City, and C. E. Gibbany, of Albany, for relators.

J. W. Peery and D. D. Reeves, both of Albany, for respondent.

WALKER, J. The Attorney General, at the relation of certain individuals, has instituted this proceeding by quo warranto, alleging that the respondent is unlawfully exercising the franchises and privileges of a drainage district over the lands of the in

The Attorney General may, at any time without leave, file in the Supreme Court an information in the nature of a quo warranto individual relators. The information admits any matter in which the public interest is involved.

the corporate character of the respondent as
a drainage district under the laws of the
state, but alleges that in its attempt to ex-
tend its boundaries and exercise authority
over the relators' lands that it is exercising

2. Drains 15-Owner may not attack va-
lidity of annexation to drainage district in
absence of showing of injury to public.
Owner of land annexed to drainage dis-powers not authorized by its charter.
trict under Laws 1913, p. 232, cannot, in the
absence of a showing of resultant injury to the
public generally, attack validity of annexation
on the ground that sections 9, 10, 12-16, 37,
had not been complied with, that annexed land
did not constitute, with land originally includ-
ed, a contiguous body of swamp, wet, or over-
flowed land under section 2, and that section
40, if it authorized such annexation, was in
violation of Const. Mo. art. 2, § 4, article 4, §
53, subd. 26, and Const. U. S. Amend. 14, though
the proceeding is in the form of one to test the
district's corporate franchises, on theory of
misuser thereof, since the proceeding does not
affect the matter of public interest; the pub-
lic generally having no interest in the contro-
versy.

The respondent was organized as the Al-
bany Drainage District under a decree of the
circuit court of Gentry county, May 22, 1917,
under and in conformity with what is termed
the Circuit Court Drainage Act (Laws 1913,
p. 232). The district as originally organized
comprised 5,704.06 acres. On December 9,
1918, the circuit court of Gentry county ren-
dered a judgment extending the boundary
lines of said district so as to add thereto
11,039.22 acres, making the total area in-
clude 16,743.28 acres.
of this addition are owned by the relators,
More than 3,350 acres
who are protesting, in this proceeding,
against the inclusion of their lands in the
district. The grounds of objection of relat-

3. Drains 13-Drainage districts are "pub-ors against the legality of the decree of the lic corporations."

"Drainage districts" are public corporations or corporate subdivisions of the state authorized to exercise the powers granted to them for the purposes of their creation within their territorial jurisdiction as fully and with like authority as municipal corporations exercise their powers.

4. Drains 14(4) Legality of district's organization not to be collaterally attacked or inquired into at suit of individuals.

A drainage district being a municipal corporation, the legality of its organization cannot be collaterally attacked or inquired into at the suit of individuals.

5. Quo warranto 3-Action of court having jurisdiction not reviewable by writ of quo

warranto.

Where circuit court has jurisdiction in proceeding to enlarge drainage district because of filing therein a petition to extend the boundaries of the district under Laws 1913, p. 232, the action of the court is not subject to review by writ of quo warranto; such writ not being a writ of review.

Quo warranto by the State, on the information of Frank W. McAllister, at the relation of E. W. Manion and others, against the Albany Drainage District. Writ denied.

circuit court, making their lands a part of the district, may be summarized as follows:

"(1) That no plan was adopted by the district board of supervisors prior to the filing of the petition to extend the boundaries for the drainage, leveeing, and reclaiming the lands contained in the district organized as is required by sections 9 and 10 of the act of 1913, page 237, no certified copy of a plan for reclaiming said lands had been made and transmitted by the secretary of the board to the circuit clerk, as required by section 12 of said act, and no commissioners had been appointed to assess benefits and damages for the reclamation of said lands, as is required by sections 12 to 16; and that until all said things were done and it had been shown that the cost of constructing necessary drainage works for the lands contained in the district did not exceed the benefits to such lands, the district could not be held to have been organized in good faith or had a right to corporate existence, under sections 16 and 37; and hence the proceeding to extend the boundaries was premature, and should have been dismissed.

"2. That the burden was upon the supervisors to demonstrate: (1) That it was necessary for the proper reclamation of the lands within the district organized that its boundary lines be extended so as to include relators' lands and the other lands added; and (2) that the lands added by the extension of the bound

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