45 Barb. 317 | N.Y. Sup. Ct. | 1866
The deed conveying the real estate, and the bill of sale of the personal property, executed by O’Neill to the plaintiff, and the article of agreement between them, all bearing- the same date and relating to the same subject matter, must be read and construed together as though the whole was contained in one instrument. Bead and construed in this manner they oonstitpje pothing more por less than au
It appears, however, that no inventory or account of the creditors of the debtor, or of the amount owing to each, or in gross, had ever been made, and no bond had ever been given "by the plaintiff, as required by the second and third sections of the act of 1860, on the subject of assignments for
The precise point to be determined is, whether these provisions of the statute are mandatory, or directory merely, in their character. This precise question was decided in this court, in the sixth district, in the case of Juliand v. Rathbone, (39 Barb. 97,) all four of the judges concurring, Balcom and Mason, Justices, each delivering elaborate opinions. It was there held that these provisions were directory merely, and that an assignment, in other respects good, was valid, 'and vested a perfect title in the assignee, although not followed by the schedule, or the bond, provided for by sections two and three of the act. It is our practice to hold these decisions of our own court in other districts binding upon us until they are reversed, either by this court or by the Court of Appeals, unless they are so clearly erroneous that we should reverse had they been.made in our own district.
I am disposed to place our decision, in this case, upon the authority of the decision in the case above cited, although I am not quite certain that I should have so held were it an
Welles, E. Darwin Smith and Johnson, Justices.]