Reports of Cases Argued and Determined in the District Courts of the United States Within the Second Circuit

changes are so frequent upon the bench, what it was to have a judge upon the bench for forty years, as he was. He reached great age, and gave an example to us all of the results of a quiet and uniform and industrious life of moral and domestic virtue. His death calls upon us all to prepare for that end of life to which we must all come, and which few of us can expect to have deferred as long as it was in his case."

Judge BEEBE then spoke as follows: "Perhaps I, too, should say a word on the occasion which has called so many members of the bar together. When a boy I commenced a student's life in the office of my friend who has just sat down, and soon gained familiarity with the business in that office, and therefore with the business of this Court. And in my practice since that time I have experienced many kindnesses and often indulgence at the hands of Judge Betts. When I was a boy I always received from him treatment which gave me courage and hope, and during my long acquaintance with him there has been no jar in our friendship. I have always had the utmost respect and affection for him, and we all reverence his memory now that he is gone. Few men reached the years which he reached or the honors which he attained. He was a man of extraordinary industry, who never allowed any matter to pass before him without careful consideration, and a great many hours and years of labor were spent in elaboration, which he conscientiously believed to be his duty, for he was a man instant in season and out of season in the performance of duty. He has passed away, and it is due to us who remain to pay respect to his memory, and I again second the motion that the Court adjourn."

Judge BENEDICT said: "My own relations with Judge Betts were perhaps somewhat different from those of any one present. I first began to know him as a student; my first cause I tried before him; I practiced before him as long as I continued at the bar, and when I took my seat upon the bench I was in some sense associated with him as judge. To his kindness to me as a lad, to his patience with me while at the bar, and to his uniform kindness to me while on the bench, I desire to bear my testimony, and the motion seems to me eminently proper."

Judge BLATCHFORD said: "I can add but little to what has been said. Sitting in this place as the successor of Judge Betts, and brought into intimate familiarity as I am daily with his decisions in all branches of the law administered here, I cannot but express the obligations

VOL. II. -36.

which both the bench and the bar are under to this distinguished judge for the light which he has shed upon the path of this Court. My acquaintance with him began some twenty years ago, and my relations with him have been intimate since then. He was always kind, encouraging, faithful, industrious, and conscientious in the discharge of every judicial duty. Of one branch of his judicial career I can speak better, perhaps, than any other person. I refer to the great services which he rendered to his country and to the law, in the prize cases which came before the Court during the late rebellion. In preparing his decisions in those cases for the press, as I did, I was amazed at the industry with which the judge, from the seventy-eighth to the eightysecond year of his life, went through the mass of papers in those cases, going over the evidence in each, digesting it and spreading it out in an opinion, so that the volume now stands for the information of all who have need of information on any branch of that subject. As it was the first great war that the country had waged, he was, as it were, treading a new path, using principles which had been already discussed, but adapting them to entirely new circumstances. And it was done with a clearness and a care which made the work a fitting close to his career. He has added to the reputation of the country by it, and I think the country owes a greater debt to him than to any other man in this branch of the law. I cordially accede to the request of the bar, and direct the Court to stand adjourned till Friday, and this motion to be entered on the minutes."

INDEX.

ARREST.

Held, That on that affidavit the claim
against the bankrupt was a debt cre-
ated by the defalcation of the bank-
rupt, while acting in a fiduciary capa-
city, and he was not entitled to be dis-
charged from the arrest. Kimball's
Case,
554

See BANKRUPTCY, 13, 15, 16, 17.
PRACTICE IN BANKRUPTCY,
17, 18.

ASSIGNMENT.

1. Where a firm had chartered a vessel
for a voyage to New Orleans, and ob-
tained advances on the bills of lading
of her cargo from T., who took them
under an agreement that the cargo
should be sold in New Orleans by D.,
and the whole proceeds remitted to
T., who was to take his advances out
of it and pay the rest over to the firm,
and the firm, being indebted to other
parties, gave them a draft on D., "pay-
able out of proceeds of consignment"
by the vessel, which draft was not ac-
cepted, but D. gave T. notice of its
presentation; and where, in a suit by
the owners of the vessel, to recover
the charter money, an attachment was
served on T., who afterward received
the proceeds of the cargo from D., and,
claimed the right to reimburse him-
self therefrom for his advances, and
for the amount of the draft, which he
had paid after receiving such pro-
ceeds, taking a bond of indemnity:

Held, That the proceeds which came
into T.'s hands were unincumbered by
any appropriation or assignment which
could bind him or them, and the sur-
plus above his advances became sub-
ject to the attachment, and must be
paid to the libellants, with costs. Mc
Loon v. Linquist,

200, 217, 490, 502

...

122, 147

BANKRUPTCY.

1. Where a debtor, before the passage of
the Bankruptcy Act, procured a ficti-
tious judgment to be entered in a State
Court against himself, to enable him to
coerce creditors who were pressing
him, and, after the passage of the Act,
took no steps to have it set aside, and
in October, 1867, the debtor being
then insolvent, execution was issued
on it to a sheriff, who levied on what
was substantially all the property of
the debtor:

Held, That the inaction of the debt-
or, in taking no steps to set aside the
fictitious judgment, and to prevent ex-
ecution being issued on it, was a pro-
curing or suffering by him of his
property to be taken on legal process.
Schicks' Case,

That the transaction was, in effect,
within the provisions of section thirty-
nine of the Bankruptcy Act, a transfer
of the debtor's property with intent to
delay, hinder, and defraud his credi-
tors, and the debtor, therefore, must be
adjudicated a bankrupt; but there was
nothing in the adjudication to preclude

2. Where, before proceedings were taken
in involuntary bankruptcy, a judgment
was entered against the bankrupt in a
State Court by default, on which an
execution was issued and a levy made,
and the bankrupt unsuccessfully en-
deavored to have the judgment, execu-
tion, and levy set aside, and the sheriff
then advertised the property for sale,
but was stopped by an injunction from
the Bankruptcy Court, which injunc-
tion was, on a representation that the
goods were perishable, modified so as
to allow the sheriff to sell, directing
him to hold the proceeds subject to the
order of this court, and the sheriff sold
them, and an application was then
made to dissolve the injunction, there
being no impeachment of the bona fides
of the judgment, execution, and levy:

Held, That the lien of the levy was
preserved by the Bankruptcy Act and
should be respected by this court, and
that the sheriff should be directed to ap-
ply the proceeds of the property in his
hands to the satisfaction of the execu-
tion, paying the overplus to the bank-
rupt's assignee, or, if there was no
assignee, to the clerk of the court.
Bernstein's Case,

6. Where a suit was commenced in a
State Court against a bankrupt, and the
judgment was entered and execution
issued, and a levy made by the sheriff
before the petition in bankruptcy was
filed:

Held, That as the judgment was not
fraudulent, the judgment creditors, by
their levy, acquired a security for their
debt in the property which is not in-
validated by the bankruptcy act;

That as it appeared that the proper-
ty levied on would bring more money
if sold by the assignee in bankruptcy
at private sale than if sold by the
sheriff under the execution, and as no
objection was made by the creditors
to the taking of such a course, the as-
signee must take the property and sell
it, with leave to the judgment credi-
tors to apply for an order directing
payment of their judgment out of the
proceeds. Schnepf's Case,

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Reports of Cases Argued and Determined in the District Courts of ..., Volume 2