This is an action to recover the price of twenty-six bags of pepper, sold by Ritchie, Moore & Co., to the defendants.

The general issue was plead, and the statement of facts presents the following case for decision:—

On the 5th of April, Sands, Kelshow & Co. lent to Ritchie, Moore & Co. $ 500. On the 12th, they purchased the merchandise stated in the petition; and on the 16th of same month, Ritchie, Moore & Co. filed their petition, to have the benefit of the laws of this state for the relief of insolvent debtors.

The question then is, as to the validity of a payment of this kind, made out of the ordinary course of business, and on the eve of bank*705ruptcy. The principle which decides it has been fully examined in the cases of Brown vs. Kenner & al. 3 Martin, 277. Meeker's ass. vs. Williamson & al. syndics, 4 Martin, 625. I concur entirely with the opinions there expressed; and as it is unnecessary to repeat the reasoning on which the court, in those cases, came to the conclusion, that debtors immediately before their declared insolvency, could not discharge their debts in the manner it was attempted to have been done here, I think that the judgment of the district court should be annulled, avoided and reversed, and that the plaintiff do recover of the defendants, the sum of $ 311 85 cents, with costs.

The case of Brown vs. Kenner, was decided before I came to this court, and I am perfectly satisfied therewith. I concur with judge Porter.

I concur with my colleagues.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the plaintiff recover from the defendants, the sum of $ 311 85 cents, with costs.