Loomis agt. Bowers.

tute, and numbered to distinguish them from each other, and not to organize new courts of special jurisdiction by that name. (See Laws 1852, p. 471, District Court Act, §1.)

III. The amendment of section 53 of the Code permits justices' courts to have jurisdiction in actions for claim and delivery of personal property to a certain amount; and district courts, as we have before seen, are justices' courts with their powers extended. (See first point.)

A familiar rule for the construction of statutes is, that in laws which permit anything to be done, the consequence is drawn from the greater to the lesser. Thus, those who have a right to give away their goods for nothing, have much more a right to sell them. And in a like manner, those who have a right to appoint executors by testament, have, with much greater reason, a right to bequeath particular legacies. (See Smith's Construction of Statutes,

§ 473, p. 623.)

IV. If the legislature had intended that said amendment was not to apply to the said district courts, they would have excepted them by special words, as they have in section 354 of the Code.

V. Section 3 of district court act has virtually adopted section 53 of the Code as a part of itself, and if so, any after-amendment to section 53 applies to all courts that have adopted it.

1. It has always been a principle in the construction of statutes, that where one statute is enlarged by a second, and a third is passed reciting the first, the second is regarded as virtually recited in the last. (See Smith's Con. Statutes, p. 758, § 642.)

2. Thus, the superior court of the city of New York, the superior court of the city of Buffalo, and the city court of Brooklyn, when they were organized, adopted some parts the Code and practice of the supreme court; and it is undisputed, that after-amendments to the Code apply as well to said courts without recital, as to the supreme court.

Loomis agt. Bowers.

By the court, HILTON, J. The single question this appeal presents is, whether the district courts in the city of New York have jurisdiction of actions claiming the delivery of personal property wrongfully withheld or detained, and to recover the possession thereof.

By the act of April 13, 1857, under which these courts were organized, they had conferred upon them jurisdiction in actions similar to those provided by sections 53 and 54 of the Code of Procedure, when the sum recovered should not exceed $250. (Sess. Laws 1857, vol. 1, p. 307, § 3.) At that time an action of this character was not specified in the sections of the Code referred to.

Subsequently, in 1860, an act was passed entitled "An act to amend section 53 of the Code of Procedure, and to extend the jurisdiction of Justices' Courts, and to provide for proceeding therein," (Sess. Laws, 1860, p. 209,) which amended the section by adding to it a tenth subdivision, by which justices' courts were vested with jurisdiction of actions to recover the possession of personal property claimed where its value should not exceed $100. Then follow twelve sections devoted to the proceedings which are necessary to be adhered to in such actions, and which are nearly analogous to those prescribed by chap. 2, title 7, part 2 of the Code, (§ 206 to 218,) respecting actions for the claim and delivery of personal property, when brought in a court of record.

In 1861 another act was passed amending section 53 of the Code, by increasing the jurisdiction of justices of the peace, and extending it to all the cases there named where the amount claimed does not exceed $200, they having been previously limited to actions where the sum claimed did not exceed $100; and it was declared that this act should not be construed to repeal, impair, modify, or in any manner affect the previous act passed in 1860.

In connection with these two acts it may be remarked, that although the act of 1860 amended section 53 of the

Loomis agt. Bowers.

Code by adding to it a tenth subdivision, yet the act of 1861, which declares that the section shall be amended so as to read only as there given, omits the subdivision previously added, and concludes with a section declaring as above stated.

Applying the familiar legal principle that inferior courts, not of record and not proceeding according to the course of the common law, are confined strictly to the authority given them, taking nothing by implication, but must in every instance show an express power, (Jones agt. Reed, 1 John. Cases, 20; 4 Black. Com., 268; Rex agt. Whitear, 3 Burr., 1366,) it is obvious that the district courts have not jurisdiction of actions to recover the possession of personal property.

Under the act of 1857, they are limited to certain actions "when the sum recovered shall not exceed $250;" that is, they can entertain actions for the recovery of money only in specified cases, and no other.

It is true that, by the act of 1860, section 53 of the Code was amended by adding to it a subdivision by which courts of justices of the peace acquired jurisdiction over actions to recover the possession of personal property where its value does not exceed $100, but the jurisdiction there given is in the nature of a special statutory proceeding, and which must be pursued by the justice in the particular manner there prescribed. The provisions respecting the form of the proceeding it will not be pretended are applicable to any other than justices' courts, and therefore, if it ever should be conceded that by the amendment of section 53 of the Code, the district courts became vested with power over actions of this nature, they would still be left without any law prescribing the manner in which such a special and peculiar jurisdiction could be exercised-unless it may imply that it should be pursued in the same manner as in courts of justices of the peace. This we cannot do. The judgment should therefore be reversed.

Taylor agt. Hatch. Belmont agt. Lane.

RICHARD H. TAYLOR, &c. agt. WILLIAM S. HATCH, &C.

Per curiam.-For the reasons assigned in Loomis agt. Bowers, this judgment must be reversed.

SUPREME COURT.

AUGUST BELMONT and others agt. WILLIAM G. LANE and others.

An attachment for the purpose of taking the property of debtors in the hands of an assignee, held under an assignment for the benefit of creditors, cannot be sustained on the ground of alleged fraudulent transactions of the debtors prior to the making of the assignment.

The attachment must be sustained on the ground that the assignment was a fraudulent assignment or disposition of the property of the assignors within the meaning of the Code, (§ 229,) which means actual or moral fraud.

It seems, that an assignment may be held fradulent and void on its face, as hindering or delaying creditors within the provisions of the Revised Statutes, and yet not alone justify an attachment under the Code, as a fraudulent disposition or assignment of property.

New York General Term, January, 1862.

CLERKE, ALLEN and SUTHERLAND, Justices.

By the court, SUTHERLAND, Justice. However fraudulent the transactions prior to the making of the assigment detailed in the affidavits on which the attachment was issued, uncontradicted or unexplained, might be, such fraud did not and could not deprive Lanes, Boyce & Co. of the right to make an honest assignment for the benefit of their creditors with preferences.

Lanes, Boyce & Co. did, sometime after the alleged fraudulent acts or transactions, make an assignment for the benefit of creditors with preferences; and that assignment must be deemed fraudulent to authorize the issuing of an attachment to take the assigned property, or any part of it, from the hands of the assignees, and give it to a creditor, or to creditors, not preferred in the assignment.

Belmont agt. Lane.

The attachment, then, issued in this case, must be sustained on the ground that the assignment was a fraudulent assignment or disposition of the property of the assignors within the meaning of the Code, section 229.

The Code, I think, means actual or moral fraud.

The assignment might, I think, be held fraudulent and void on its face as hindering or delaying creditors, within the provisions of the Revised Statutes, and yet not alone justify an attachment under the Code, as a fraudulent disposition or assignment of property.

It is insisted on the part of the plaintiffs, that it being shown outside of the assignment that all the members of the firm of Lanes, Boyce & Co., the assignors, were also members of the firm of Lanes & Ker Boyce-the two firms being composed of the same members with the exception of James P. Boyce, who was a special partner of the latter firm, but not of the first-and the assignment including among the preferred creditors, Lanes & Ker Boyce, to about the amount of $71,000, that the assignment is thus shown to be for the benefit of the assignors, among others, and that the assignment was therefore in judgment of law made to defraud, hinder and delay their creditors, and was and is void by the statute of frauds.

I repeat, conceding this proposition to be true, that I do not think it follows that an attachment under the Code could rightfully issue on that ground alone.

But looking at the provision in the third clause of the assignment explaining the purpose and the intended practical operation of the preference in favor of Lanes & Ker Boyce, it is not clear, I think, that the assignment is fraudlent and void, even in judgment of law, on the ground of such preference. That provision is certainly somewhat complicated; but the substance and effect of it is, that the amount for which Lanes & Ker Boyce are preferred, or so much of it as shall be necessary, in addition to other assets of Lanes & Ker Boyce, to pay all their debts, and to return