Kretschmar v. First National Bank

43 So. 474, 90 Miss. 363

Opinion

Whiteield, C. J.,

delivered the opinion of the court.

After the most careful consideration we adhere to the view announced in Union & Planters’ Bank v. Duncan, 84 Miss., 467, 36 South., 690. The equitable rule was first authoritatively announced in England in 1868, by Lord Kellock. This equitable rule was expressly abrogated by the British Parliament about 1873, by the Judicative act of August 5, 1875, and the amendment of August 11, 1875. If, therefore, this court were to adopt and persist in that so-called equitable rule, it would be itself in the attitude of following a rule of distribution expressly abrogated in England, whence the doctrine originally came to us, through Lord Kellock. This would be a most.anomalous condition.

Two other observations occur-: (1) That an assignment without preferences is practically the same as an assignment with the word “ratable” in it; and (2) that if the view urged with such marked ability by the counsel who argued this case orally, attempting to show that in any event a different view from the one announced in the Duncan case should prevail in the case of assignments which are administered under our statute in the chancery court, should be upheld, then we would have the singular condition of having three rules for distribution; the two between which the courts have been so divided— the Bankruptcy rule and the Equity rule — and the third, to-wit, a rule to be adopted in cases where assignments have been made in this state. It seems to us, after mature deliberation, that this would increase, instead of lessen, the confusion.

The decree is reversed, and ihe cause remanded for a decree in accordance with this opinion.

Calhoon, J., dissents.