13. Where a judgment by default was
rendered against a bankrupt in a State
Court, on a complaint which showed
that the debt, which the suit was
brought to recover, was contracted
by fraud:

Held, That the question, whether
the debt represented by the judgment
was created by the fraud of the bank-
rupt, was concluded by the judgment,

That, under the thirty-third section
of the Bankruptcy Act, the judgment
would not be affected by the dis-
charge, any more than the debt
which it represented;

That the bankrupt, therefore, was
not exempt from arrest on an execu-
tion issued on the judgment in ques-
tion. Patterson's Case,

155

charge, from arrest or imprisonment, of
a bankrupt arrested on process founded
on a claim provable in bankruptcy,
where that claim is one from which
his discharge in bankruptcy will not
release him, are not warranted by the
twenty-sixth section of the Act. id.

18. Where a firm, which owed debts
which it was not able to pay, owed
money to the brother of one of the part-
ners, which they were desirous of secur-
ing to him, and the two brothers con-
sulted a lawyer as to how that could
be done, who declined to advise them
both, but sent away the partner, and
then in behalf of the creditor, brought
suit against the firm to recover the
debt, the summons being served on
the creditor's brother alone, on which
service judgment was entered by de-
fault against the firm, and execution
was issued to the sheriff, who levied
on the firm property, whereupon pro-
ceedings in involuntary bankruptcy
were taken against the firm, and they
were adjudged bankrupts without op-
position, and, on the application of
the judgment-creditor, the sheriff
was directed to sell the property and
retain the proceeds to abide the order
of the court, and proof was ordered
to be taken of the facts attending the
entry of the judgment, and, on those
proofs, the assignee in bankruptcy
applied for an order directing the
sheriff to pay to him the proceeds of
the property in his hands:

Held, That on the facts, the firm
was insolvent, and suffered its prop-
erty to be taken on legal process,
with intent to give a preference to the
judgment-creditor, and that he had
reasonable cause to believe that the
firm was insolvent, and, therefore,
under the thirty-ninth section of the
Bankruptcy Act, the firm had com-
mitted an act of bankruptcy, and the
assignee in bankruptcy was entitled
to recover back the property so taken.
Black & Scor's Case,
196

19. That, as the creditor had submitted
himself to the jurisdiction of the court,
there was no need of an action by
the assignee to recover the property,
but the court would order the sheriff
to pay over the proceeds to him. id.

20. The word “insolvency,” as used in

21. If the act of a bankrupt does in fact
give a preference to a creditor, it is
competent to infer an intent on his
part to give such preference, unless
he prove to the contrary.
id.

22. Where a petition in involuntary
bankruptcy alleged that the debtor
had, "in contemplation of bankruptcy,”
given a confession of judgment to one
of his creditors, on which execution
had been issued and his property
taken, and that this was done with
intent to give a preference to the
creditor, and, on the proofs, it ap-
peared that the confession of judg
ment was given, and the property
levied on under execution and sold,
and that the debtor was insolvent at
the time, but did not contemplate
bankruptcy, or know that there was
such a law as the Bankruptcy law:

Held, That the facts made out a
case against the debtor, under the
thirty-ninth section of the Bankruptcy
Act, of suffering his property to be
taken on legal process, with intent to
give a preference to the creditor in
question, the debtor being at the time
insolvent. Craft's Case,

214

23. There are four species of acts for
which, when done by a person bankrupt
or insolvent, or in contemplation of
bankruptcy or insolvency, with intent
to give a preference to one or more
of his creditors, he may be put into
bankruptcy, viz.: (1.) Making a
transfer of his property; (2) Giving
a warrant to confess judgment; (3.)
Procuring his property to be taken
on legal process; and (4.) Suffering
his property to be taken on legal
process. The first three require
affirmative action on the part of the
debtor, but the last does not.

id.

24. Where the assets of a bankrupt con-
sisted of an interest in certain notes,
from which the assignee in bank-
ruptcy had collected nothing for
more than sixty days after the ad-
judication of bankruptcy:

Held, That, "no assets" had come
to the hands of the assignee, within
the meaning of section twenty-nine of
the Bankruptcy Act. Dodge's Case,
347

25. A bankrupt had married in 1860, his
wife having then no property, and
having inherited none subsequently,
and received none except from her
husband. In 1861, he failed in busi-
ness, and from that time did busi-
ness as agent, first for one M., and
then for his wife, in whose name he
transacted an extensive business.

Held, That, on the facts, a house
and lot which stood in the name of
the bankrupt's wife, was really his
property; that he had been guilty of
fraud in placing his property in his
wife's hands, and had willfully sworn
falsely in the bankruptcy proceed-
ings; and that a discharge must be
refused. Hill's Case,

349

26. A creditor who has proved his debt,
is subject to the jurisdiction of the
Bankruptcy court without regard to
his place of residence. Kyler's Case,

414

27. Where, after a bankrupt had filed his
petition and been adjudged a bank-
rupt, creditors who held judgments
against him, and had proved their
debts in the bankruptcy proceedings,
commenced a suit in a State Court
against him and others, charging that
certain real estate which stood in the
name of the bankrupt's wife, had been
bought by him and paid for with his
money in fraud of his creditors, and
that a trust had resulted in their favor
from such purchases, and praying
that their judgments might be satis-
fied out of such property:

Held, That, by proving their debts
in the bankruptcy proceedings, the
creditors waived all right of action
against the bankrupts, on either the
judgments or the original indebted-
ness; and that proceedings in such
suit must be stayed, under the 21st
section of the Bankruptcy Act. Mey-
ers' Case,

424

That, if the allegations of the credi-
tors were true, the money used by the
bankrupt in the purchase of the real
estate was "property conveyed by
the bankrupt in fraud of his credi-

30. Where a firm executed a mortgage
upon personal property in their store,
to secure a debt due to one of their
creditors, which mortgage was ex-
ecuted November 1st, 1867, and filed
November 26th, 1867, and on the 2d
of January, 1868, the mortgage was
foreclosed and the property sold, the
mortgagors having failed in business
in December, 1867, and it was not
alleged in the petition in involuntary
bankruptcy, which was filed against
the firm, that they were, when the
mortgage was given, bankrupt or in-
solvent, or then contemplated bank-
ruptcy or insolvency:

Held, That, though the mortgage
was not given for a present considera-
tion, within the fourteenth section of
the Bankruptcy Act, and although it
was made with the intent to give a
preference to a creditor, it was not
made with intent "to delay, defraud,
or hinder" the creditors of the mort-
gagors, within the meaning of the
thirty-ninth section of that Act. Dun-
ham & Orr's Case,

488

31. Where, in support of an allegation
that an act of bankruptcy had been
committed by the transfer of certain

property by the debtors, when bank-
rupt or insolvent, with intent to pre-
fer a creditor, an assignment of the
property in question was offered in
evidence, which had no Internal
Revenue stamp upon it, and which
was the only proof offered:

Held, That under the one hundred
and fifty-eighth section of the Internal
Revenue Act of June 30th, 1864 (13
U. S. Stat. at Large, p. 292), the as-
signment was void, and the allegation
of the petition in bankruptcy was not
sustained.
id.

and partnership assets existing.
James C. Jewett & Co.'s Case, 514

37. C. & S. applied for an adjudication of
bankruptcy against themselves and
J. as partners. The partnership did
not exist at the time the petition was
filed. There were partnership debts,
but no partnership assets except a
claim against B. & Co., for damages
arising out of their fraudulent recom-
mendation of a person to the firm, in
consequence of which the firm in-
trusted property to him, which he
failed to account for.

Held, That such a claim was not
within the description, in the four-
teenth section of the Act, of the assets
which pass to the assignee in bank-
ruptcy, and that the petition as to J.
must be dismissed with costs.

See ARREST.

PRACTICE IN BANKRUPTCY.

BILL OF LADING.

id.

1. Where a bill of lading specified that
the vessel was bound " for Catharine
street, East River, New York," and
also contained a clause as follows:
"demurrage $10 a day after four
days," and on the arrival of the ves-
sel at Catharine street, it was not
possible to discharge her there, ow-
ing to the wharf being out of repair,
and the consignee thereupon ordered
her to go to Dover street, and she
went and was unable to discharge her
cargo, owing to there being so many
vessels there that she could not get a
berth, until thirteen days had elapsed;
and where another bill of lading be-
tween the same parties described the
boat as "bound for New York, in-
structions at New Brunswick," and
had a similar provision as to demur-
rage, and the consignee sent her in-
structions at New Brunswick to go to
Dover street, whither she went and
was detained for the same cause for
sixteen days; and the owners of the
boats sued the consignee for demur-
rage, and he set up that, by usage,
the clause as to demurrage meant that
the boat should only be entitled to
demurrage, if detained more than
four days after she had got a berth:

Held, That where the consignee of
a cargo requires it to be taken to a

particular place, he ought to be held
liable for any delay caused at that
place, for which the vessel cannot be
shown to be directly chargeable;

That no usage ought to be allowed
to vary a plain contract for demur-
rage, under such circumstances;

That the consignee, therefore, was
bound to pay demurrage after four
days from the arrival of the vessel at
the specified place of delivery, with
interest on it from the day when it
was demanded. Phil. & Read, R. R.
Co. v. Northam,

1

Where cotton was shipped at Galves-
ton, on a vessel bound to New York, and
bills of lading were given therefor,
and, on the voyage, the vessel was
barratrously run ashore, and part of
the cotton was lost, and a part of it,
which had been saved in a damaged
condition, was libelled for salvage,
and the owners of the cotton paid the
amount of salvage decreed, and libel-
led the vessel on the bills of lading:

Held, That the vessel was liable to
the owners of the cotton for the value
of the cotton lost, and for the injury
to that which was saved, and for the
money paid by them as salvage.

In case of loss or damage to goods
covered by a bill of lading, the pre-
sumption of law is, that such loss or
damage was occasioned by the act or
default of the carrier. The William
Taber,

329

3. Where flour was shipped on board of a
vessel at New Orleans, bound for New
York, by two different shippers, the
flour being all branded, "Nonpareil
Mills," but the two different lots hav-
ing also other brands by which they
were easily distinguishable, and, for
one lot of 1,000 barrels, being of a
better quality and a higher value than
the other, which was shipped first, a
bill of lading was given, in which the
flour was stated to be "marked and
numbered as in the margin," the
entry in the margin being simply
"1,000 bbls. Nonpareil Mills,'" and
on the arrival of the ship at New
York, only 439 barrels of the 1,000
were delivered to the consignee, but,
all the flour marked Nonpareil
Mills" having been discharged on the
dock, a portion of the 1,000 barrels
was taken away by the consignee of

142 bales were discharged from the
vessel on the wharf, but thirteen of
them were not received by the con-
signee, and it did not appear what had
become of them, but, after all the
other consignees had received all the
cotton which they claimed, there re-
mained on the dock thirteen bales
without marks, which did not form
part of the 142 bales; the cotton hav-
ing been unladen bale by bale, and
the mate of the vessel having tried to
separate the various consignments
after the bales were landed, and hav-
ing required receipts to be given for
all the cotton that was removed from
the wharf before he would allow it to
be removed:

Held, That the vessel was not liable
for the value of the missing bales;

That the duty of the vessel, under
the bill of lading, was discharged
when the cotton was put on the dock;

That, under the bill of lading, the
consignees, having had due previous
notice, were bound to examine each
bale, as it left the vessel's tackles and
was deposited on the wharf, and see if
it was their cotton;

That any custody or control of the
cotton on the wharf which the mate
assumed to exercise over it was un-
authorized, and he had no right to de-
mand a receipt before allowing it to be
removed from the wharf.

Ed.

8. Where a libel alleged that 303 bales of
cotton were shipped on board a steamer
to be carried to New York, and that a
bill of lading therefor, a copy of which
was attached, was signed by the
agents of the vessel, and that seven
of the bales were not delivered, and
were not lost by perils of the sea, and
the answer admitted that the vessel
agreed to carry the 303 bales, and
that her agents signed a bill of lading,
and that a copy of it was attached
to the libel, and alleged that only 273
bales were ever received on board the
vessel, but that the rest were brought
to New York by another vessel, and
discharged upon the wharf, on due
notice to the consignee:

Held, That on the pleadings, the
authority of the agents to bind the
vessel by the contract in the bill of
lading must be considered as ad-
mitted;

That on the bill of lading, the bur