6th. IN REGARD TO THE CONSTITUTIONALITY OR UN- which should be uniform throughout the states; and had authority to point out how that law should be [N. Y. Amer. executed.




It will be seen by the following statement that Julge Wells, of the U. States district court, for the district of Missouri, has decided the bankrupt law to Notice required. The Phildelaphia Inquirer a s: be unconstitutional, as far as relates to voluntary bank-It is apprehended that some of the applicants for the ruptcy: We extract from the St. Louis Era, Sept. 19. benefit of the bankrupt law labor under an erroneous On Saturday last, Judge Wells delivered his opin-impression, that, after the first hearing-that is, on ion in a case arising under the voluntary provisions of the petition for decree, no further action is necessary. the bankrupt law, declaring such provisions uncon- This is a very great mistake; for without filing the stitutional and therefore void, and refusing to the second petition for discharge, which requires seventy petitioner the discharge which the law directs the days notice, the applicant stands precisely in the judge to grant in such case. The grounds of this same relation to his creditors as before the bankrupt opinion are stated in an article which is annexed, law was enacted. We unand which may be relied upon as correct. derstand, that an appeal has been taken to the supreme court of the United States, in this case; that it will go up at the next term of that court, in January; and that, meanwhile, all the cases of voluntary bankruptcy in the district court of this state will be continued, until the supreme court reverses this deci sion, as it will unquestionably do. In such event, it is understood, that a special term of the district court will be held, and the judge will proceed to execute the law: meantime, the position of the petitioners is in no respect changed.

A day or two after the New Era says:

The information received this morning from Jefferson city, that Judge Wells has decided the bankrupt law to be unconstitutional, will doubtless create some excitement and anxiety in this city as well as in other parts of the state and country. The opinion of Judge Wells was prepared, I understand, with great deliberation and labor, and will be published, that the public may know the grounds upon which his opinion is based.

I give you a brief statement of the points made by Judge Wells, as he was understood in the delivery of his opinion.

We are authorized to make this statement for the information of such as are concerned, and therefore repeat, that, without the final action being had on the petition for discharge, all previous proceedings are utterly valueless.

United States district court—in bankrupcy-March 3.
Judge Betts presiding. The number of petitions yes-
terday was twenty-seven. The following only were
were opposed:

Stephen S. Clark,-two days given to file objec-
tions. The same in the case of Horace James,
Theodore P. Bogert and Thomas D. Lee.
Wm. T. Palmer-objections filed; referred to Og-
den Edwards.

Mr. Goddard, who appeared for the petitioners,
asked the court if it was necessary that there should
be a daily notice of the second notice, published for
seventy days, or whether the act would not be com-
He thought it was in
plied with if published once.
the power of the court to order such notice as it

deemed sufficient.

His honor said, the two judges had given this much deliberation, and they did not understand it to be the usage of courts, that when publication was ordered 1st. The court assumes that the framers of the for a certain number of days, it could be satisfied constitution used the term "bankrupt," or "bankrupt- with any shorter period-it was not the case in any cies," in a technical and restricted sense, having re-judicial proceedings, in any department of govern ference and looking to the bankrupt system of Great ment. He thought there would be great hazard, and Britain, existing at that time; and, therefore, the indeed injustice, in directing a shorter publication; power of congress to establish "uniform laws on the and indeed it might become the ground for setting subject of bankruptcies," is limited, in substance, to proceedings aside. When the law said 70 days it the system established by the British parliament, and meant 70 days; and if the court ruled that one, two consequently, congress has not the power to provide or three days would satisfy it, the insufficiency of for cases of voluntary bankruptcy, nor for the discharge notice might be made the ground of opposition, and of a debtor without his first obtaining the assent of the whole of the proceedings have to be gone over four-fifths, or a majority, of his creditors. again.

2d. That congress has not the power to impair the obligation of contracts, that the prohibition to the states to pass any law impairing the obligation of contracts, affords sufficient proof that the framers of the constitution intended to extend the same inhibition to the congress, express power to pass such laws not having been delegated.

The court argues, that this law, providing for the discharge of a debtor from his debts,on his own voluntary application, without the consent of his creditors, or a majority of them, impairs the obligation of contracts, and is therefore in contravention of the consti-, tution of the United States, and void.

As this opinion was given in a case of voluntary bankruptcy, the other branch of the law was not necessarily considered. Judge Wells, however, left but little doubt as to his opinion in cases of involuntary bankruptcy, provided for under this law. He was understood to say, in effect, that congress had the power under the constitution to provide for eases of this kind, and that this law, so far as it made provision for involuntary bankruptcy, is valid.

The foregoing are, in substance, the grounds of the decision of Judge Wells. Of course it is not as full and explicit as contained in the opinion delivered by the judge himself.

It would seem, his honor said, that the bankrupt only was to be considered; but the court thought that they were bound to consider the interest of the creditor, and though any particular arrangement might be convenient to the bankrupt, they could not abridge any of the privileges, or deprive the creditor of any of his rights. The court had adopted the course that they thought expedient, so to execute the law as to secure to the creditor every right, and put the bankrupt to no hazard; and this had better be submitted to, until the question had been decided by the higher court.

They had communicated with the judges of the supreme court, who were desirous of adopting some rule, which should be uniform throughout the Union. and he regretted that he had not heard from them: it would seem that it was either not sufficiently clear, and required some consideration, or so clear as not to require any further rule.

His honor said he saw no reason to make any alteration, particularly as he had sent to the supreme court, who would probably devise a rule to be unifrm throughout the states. He however did not see the necessity of publishing in more than one paper, and should make such order in all proceedings before



In a few days the opinion will be before the pub- He should also make a rule that in case of the
lic? and, as it is a question of vital importance, both sickness or absence of the judge upon any return
as affecting the powers of our government as well as day, the period for showing cause should be contin-
other important interests, 1 may have occasion here- ued until the next sitting of the court.
after to notice this decision-not for the purpose of
calling into question either the motives, integrity, or
legal abilities of the court, but for the purpose of
considering a question growing out of this decision Legal decisions. The United States, upon relation
(if it be correct), vitally affecting the powers and of Jonathan Ramaley, vs. J. W. Dobbins, constable,
Sovereignty of the government of the United States, United States district court. Habeas corpus.
in matters purely local to this government, and in
which the people of the United States alone are in-

12th day of March next, for the hearing of Relator and his creditors, and that notice of this order was published according to law.

The court decided that the relator being thus according to law, brought within the jurisdiction of the court and being bound at all times to abide its orders and decrees in the matter of his petition, he was entitled to its protection, by being privileged from arrest in the case before them, pending the proceedings in his application for relief under the bankrupt law, and it therefore ordered that the said relator be discharged from his arrest, and that the arresting creditor pay the cost of the proceeding on the writ [Pittsburg Chronicle.

of habeas corpus.

A case was decided during the present week in one of the state courts at Philadel hia, in which the decisions heretofore made in the United States district courts by judges Story, Heath, Betts and Gilchrist were further confirmed. A motion was made to discharge a person from arrest, because he had been decreed a bankrupt in the district court of the United States on the 26th of April last. The state court after hearing the remarks of counsel, pro and con, decided as follows:

We have no doubt about this case, the debtor is not entitled to his discharge from arrest until he has attained his final certificate. In the meantime any

creditor may arrest him, except when he is actually attending before the court or the commissioner, or on his way to or thence. The decree of bankruptcy the estate of the bankrupt in assignees, for the is for the benefit of creditors, and only serves to vest equal benefit of all his creditors. It does not protect the debtor from process against his person.

Rule refused.

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The Pittsburg Chronicle notices the following decision in bankruptcy, made in that city last week.It is in accordance with others which have been made here and elsewhere:

In the case of Roland vs. Haveland, which was recently brought before his honor Judge Grier, on motion of T. Hamilton, esq., rule on plaintiff to show cause of action, and why the defeudant should not be discharged on common bail because defendant had been declared a bankrupt; the court refused to grant such rule, the defendant not having obtained his final discharge under the bankrupt law.

BANKRUPT LAW. John Durham, (M.) was yesterday brought before Judge Harrington of the superior court of this state, on a habeas corpus directed to the sheriff and gaolor of Kent county, who returned that he had the petitioner in custody under two writs of capias ad satisfaciendum issued on the 28th June and 14th July, 1842.

Mr. Comegys for the petitioner produced a certificate that the petitioner had been declared a bankrupt by the District court of the Delaware district, on the 28th July, 1842, upon his petition filed before the issuing of the writs of ca. sa.; and he moved his discharge from prison on the ground that the decree of bankruptcy entitled him to such relief. He argued that the bankrupt law suspended the operations of the state insolvent laws at least so far as they were in conflict. That law contemplates the presence and aid of the bankrupt to assist the assignee in the collection of his assets, and it requires his personal presence in court at all times to answer such interrogatories as may be put to him by his creditors. His presence is necessary to a successful prosecution of his petition in the bankrupt court; and if a creditor A New York paper says in relation to the promay throw him in prison pending his application, or ceedings in one of their courts "Judge Betts has de- By the return of the habeas corpus, it appeared keep him there after he is decreed to be a bankrupt, cided the following points in the affirmative, 1st, that the relator, Jonathan Ramaley, was arrested it might defeat his petition and, so far, frustrate the Whether the law is constitutional-2d, Whether the on an executien issued by an alderman of the city object and design of the bankrupt law. He argued court has jurisdiction-and 3d, Whether commis- of Pittsburg; that previously to said arrest, the rela- also that the imprisonment could only be with a view sioners may take the oaths to the petitions."-again: tor had filed his petition in due form in the said court to extort from him money or property which by the In the district court N. York, in the case of Ze- for the benefit of the bankrupt law; that the schedule decree was vested in the assignee and no longer unrega, Judge Betts decided that the bankrupt law annexed to said petition contained the name and der his control: and if its object could be effected it was constitutional; that congress had power to legis. amount of the debt, &c., of the arresting creditor; would be in fraud of the bankrupt law which requires late on the subject of bankruptcies, and to pass a law that the said court had made an order, appointing the


On motion of T. Mellon, esq., and presentation of the proper petition in the court, his honor, judge Irwin, granted a writ of habeas corpus, returnable at 3 o'clock, P. M. on Saturday last.

an equal distribution of the bankrupt's effects.



The court (Judge Judson presiding), overruled the beas corpus for bringing him there for that purpose; thus leaving it to the state courts, on application objections on both points, and decided that the demade to them, to allow such operation to the pro- fendant had committed acts of bankruptcy, and ought Circuit court of the United States-In bankruptcy.— ceedings in bankruptcy as they may feel bound by to be declared bankrupt by the court. the law, to do.

But the judge refused the motion; and said, that the act of congress gives no such effect to the decree of bankruptcy as now claimed for it. Such decree operates as an assignment of the property, but not as a discharge of either the person or the debt. The final certificate does both; but, before that, he did not consider that the bankrupt law arrested the operation. 9th. PERSONS APPLYING WHETHER PARTNERS, MER- Opinions were delivered in two cases, which came

district court.


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before the district court on the report of a commissioner and were adjourned into the circuit court. The first was the case of William Ingalls of Bosis the sum of $796, of which sum $53 33 belong to ton, in which it appeared, that the balance in court the estate of said William Ingalls; and $742 67 befrom which the costs taxed are first to be deducted, An important point was recently decided in a case long to the estate of Harvey & Ingalls, of which firm of bankruptcy, before the United States district court Ingalls was a member. The petition for the benefit for the middle district of Tennessee. If it should be of the act of congress was presented by William Insustained by future decisions, it will be of much conDebts to the amount of $65 have been proved asequence in relation to mercantile partnerships.galls, and no decree of bankruptcy has been entered The decision was, that if the partners become insol- against Harvey and Ingalls. vent, they can be declared bankrupts under the four53 against Harvey and Ingalls. teenth section of the act of congress, on account of gainst William Ingalls, and to the amount of $1,392 their insolvency alone.

In the case of a bankrupt firm, in Boston, one of the state laws at least to the extent of annulling: that which was lawfully done by state process before the first decrce. He doubted whether it would ruber of which resided in that city, and the other before the final decree. The petitioner was lawfully in New Hampshire, Judge Story decided, that the in prison in execution for debt; he had commenced latter could get his discharge through the Boston proceedings for a discharge under the bankrupt law, and had been decreed a bankrupt, but it was not certain that he would yet obtain his discharge without which he would be entitled to none of the benefits of that law. If his petition in the bankrupt court should be finally dismissed how would the judge justify decision on the present motion discharging him from these executions? Or how would the petitioner be returned to prison after he was once discharged from these ca. sa's. The petitioner's creditors having lawfully thrown him in prison had a right to keep him there until discharged by due course of law;

law of congress.


which, without payment of the debt, can only be by resort to our state insolvent laws, or the paramount But this law makes no provision for the discharge of the person of a bankrupt only as that results from a discharge of his debts which takes place on the final decree and certificate in bankrupt


The questions submitted to the court were (1) How shall the costs be apportioned? (2) How shall the funds be distributed between the private creditors Harvey & Ingalls? of William Ingalls and the partnership creditors of

New York U. S. court--before Judge Belts. In the case of Levi Dodge, Judge Betts said objections had That the petitioner does not show that the been made to the sufficiency of the petitioner's paStory, J. upon these questions, was of opinion. (1) pers. various firms of which he was a member are insolvent, and that they are not in a situation to apply for that the costs of the proceedings ought to be appor!poo the joint fund of the partners in proportion to the benefit of the law. There are other objections tioned upon the separate funds of the bankrupt, and as to the manner in which certain judgments are set forth. The general allegation is that the schedule the relative value thereof pro rata. (2) That the If the petitioner is subjected to inconvenience in is uncertain and indefinite; that the inventory is loose separate creditors of the bankrupt are solely entitled the prosecution of his petition in the district court it and uncertain in the description. The main objec- to be paid out of the separate estate of the bankrupt, is one of the misfortunes of his condition resulting tion, however, is, that the petitioner was a member and the joint creditors are entitled solely to be paid from the lawful exercise of his creditors' power over of various firms, and it is not stated if they are dis-out of the joint estate of the partnership, there being him. His confinement does not stop those proceed solved. The provisions of the act do not look to the no surplus beyond the amount due to the creditors ings as his personal presence in court is not necessa condition of other parties with whom the petitioner upon either fund or estate. In the case of Henry B. Williams, of Boston, it ap ry except for examination when that is required;and if that necessity arises, he will have ample relief by of which he was a member was insolvent or not. costs are to be deducted, is the sum of $578 70, the It may happen that a firm may be perfectly sol-peared that the balance in court, from which the That objecapplication to the bankrupt court which has power whole of which sum belongs to the separate estate vent, while one of the partners is not. to carry out the act of congress in all cases. obvious form would be by a motion in that court for a tion cannot be made available. A person may ape of said Williams. The bankrupt, Williams, was a ply for the benefit of this law, without averring the habeas corpus to bring him up for the purpose of such examination but not for his discharge. When dissolution of a copartnership, or the insolvency of member of the firms of E. Whiting & Co. and Turhave been proved against H. B. Williams, and to the that object was effected he would be remanded to others with whom he may be connected. The ob- pin & Williams. Debts to the amount of $917 12 prison until by a full discharge of his debts his per-jections on these grounds are not sustained. Objections are also made to the manner in which the real amount of $1,075 against E. Whiting & Co. or rather sonal discharge was effected. estate is set forth in the schedule. He states the against Williams as a member of that firm. county and town, and gives the name of the grantor. That is sufficiently accurate. The objections are everruled.



be connected. It is immaterial whether the firm

The judge added, that even if he was wrong in the opinion that this imprisonment was not in confict with any rights the petitioner has under the bankrupt law in the present state of the matter, the motion for In the case of Otis P. Jewett, objections are roade his discharge, being grounded upon a supposed intrference with the proceedings in the district court, to his schedule as not being accurate and sufficient. That court is fully There is no doubt that the schedule is very loose and ought to be made in that court. coinpetent to sustain its own jurisdiction and to re- vague, and without any thing to exculpate that looselieve from proceedings in the state courts by enjoin-ness, the court would certainly not receive it. But ing the parties; but the application to a state judge must be founded on the want of lawful authority to imprison upon the ca. sa. and minst show a discharge of the judgment or other immunity of the person from arrest.

The prisoner was remanded to custody.

[Delaware Journal.

er statement.

he says under oath that he has made it as accurate as he possibly could, and he gives his reasons for not having made it more full and complete. If he has not made a prompt, fair and full statement, such as he should have made, that may be shown on proof and it will vitiate the proceedings. As a question of law the papers are deemed sufficient, but the opposJudge Dickerson, of New Jersey, has decided that ing party may go on and show if he can bring proof the day appointed to show cause against the Latk-that the petitioner could have made a fuller and fairrupt's discharge, is too late for an opposing creditor to come in, file his reasons against such discharge and apply for an order to take testimony. He must have appeared earlier, and must have his testimony ready, with the report of the commissioner thereon, so that the matter may be heard and determined on Still, if the the day appointed for showing cause. creditor show to the court any good cause for his delay, the court will give him further time to take or complete his proofs.

Upon these facts the question submitted to the individually, and the creditors of E. Whiting & Co. court was, whether the creditors of the said Williams shall share pari passu the funds in court, in propor tion to their respective claims, or in what manner the funds shall be distributed?

Story J. upon this question, was of opinion, that
the fund was exclusively distributable among the se-
parate creditors of the said bankrupt. Williams, and
[Boston Daily Adv.
that there being no surplus, the joint creditors of the
firm of E. Whiting & Co. are not entitled to any
share in the said fund.


It has been

that whilst a petition of creditors praying that a decided in Boston, in the U. States district court, debtor may be declared backrupt, is pending, said injunction to prevent him was ordered to be issued. debtor has no right to dispose of his property, and an

In New York, in a case where one of the credi tors of the applicant excepted to his being decreed a bankrupt upon the ground that he was owing debts which had been created by reason of a defal cation while acting in a fiduciary capacity, the court overruled the exception, and decided that any per son (otherwise qualified) may become a volunteer bankrupt under the act, who is owing debts which shall not have been created in consequence of a de

The decision in the case of Chester S. Kasson, on the question whether jewelry can be retained by a The only petitioner opposed yesterday was John Petitioner, will be given this day. [New York Courier. Newman. Involuntary bankruptcy. The New Haven Herald contains a report of a case tried a few days since before the U. S. circuit court sitting at Hartford, wherein David Wakeman, as creditor, was petitioner Another point decided was that the court will not, for a decree of bankruptcy against Rufus Hoyt, a falcation as a public officer, or as executor, adminisexcept in extreme cases, exercise its extraordinary carriage manufacturer residing in Fairfield county. The materials used in the manufacture were pur-trator, guardian or trustee, or while acting in any power of suspending the operation of the process of The facts in the case are thus stated: the state courts; but will leave the assignee to pursue his own rights by regular process of law. Hence if chased at Bridgeport, New York, and other places. other fidudiary capacity, although he may at the execution is ne against the bankrupt's property after On the 15th of June, 1842, Hoyt being deeply embar- same time, owe other debts which have been thas he has becu decreed a bankrupt, the assignee must rassed and pressed for security by the petitioning cre- created. pursue his remedy in proper courts, the same as any ditor, executed to certain family connexions to whom third person whose property is levied on improperly. he was indebted, mortgages and assignments of all If execution be issued after the filing of the petition, his property, including the stock, tools, &c. in his and before such decree, the course is the same. The carriage establishment, for the purpose of securing to assignee, when one is appointed, must follow the the mortgagees a preference over his general credigoods in whosesoever hands they may be provided tors. There was no evidence or claim that at the time of making the mortgages on which the petition he has any right to them; the court expressed its opinion, however, that in such a case the executioning creditor relied as constituting acts of bankruptcy, creditor's lien must prevail; and that the property of the assignee, in the goods, &c., of the bankrupt, relates back no farther than the time of the decree of bankruptcy.

So, also where the bankrupt is under arrest, or is imprisoned under civil process, the court will not interfere with the operation of such process; but if the bankrupt's presence is necessary before the court, or a commin to be exami ved, &c. it will grant a ha

Hoyt had any intention of applying for the benefit of
the bankrupt act.

It has been discovered in the N. York U. S. district court by Judge Betis, that the creditors of a bankrupt who fail to file and prove their claims within the time limited in the notice to creditors, are shut out from any dividend directed to be made to those who have so filed and proved their claims. If any future dividend should be declared they may come in and present their claims.

In Kentucky, before Judge Morris, in a petition of creditors to have a man declared an involuntary The application was opposed on two grounds: 1. That Hoyt was not "a merchant or using the bankrupt, on the ground that, being a retail dealer, trade of merchandise, or a retailer of merchandise," he had in January, 1842, in contemplation of bankwithin the meaning of the act; and 2, that the mort-ruptcy, fraudulently conveyed away all his proper gages, &c. though made with the intent to secure a ty, preferring some and excluding other creditors; cy, such conveyances must be fraudulent according preference to particular creditors, were not frauda- it was decided that to constitute an act of bankrupt lent, and did not constitute acts of bankruptcy.

to the laws of Kentucky---it is not sufficient that it 2. That it was not made in contemplation of bank-
was fraudulent as violating the policy of the bankruptcy, as the respondent at the time avowed his de-
rupt law.
termination not to apply for the benefit of the bank-
rupt law.

Before the same judge a man petitioned to be a declared bankrupt. It appeared that the petitioner was a defaulter as former clerk of the Louisville city council. Held, that defaulters are not entitled to the benefits of the bankrupt law, as voluntary ap; plicants, to a discharge from any of their debts, and that the applicant was a defaulter within the meaning of the act.

The Richmond Compiler says: "In the case of Ezekiel Daws, a merchant owing debts to the amount of $2,000, a petition having been filed by creditors to whom he owed more than $500, praying that he might be declared a bankrupt, and the question being whether he had made a fraudulent conveyance, Judge Mason yesterday decided that a deed of trust by such a merchant, made when he was insolvent, for the purpose of giving some creditors preference or priority over others, is to be considered in contemplation of bankruptcy, within the meaning of the second section of the bankrupt act, and fraudulent within the meaning of the first section. This decision is a preliminary step to a bill by the assignee in bankruptcy against the trustees on the deed, to have the trust fund disposed of rateably amongst all the bona fide creditors of Daws.

In another case, the same question which is decided by Jude Mason, has been adjourned into the circuit court, to be determined by Judge Daniel.

Judge Conklin, of the northern district of New York, has given an important opinion in a recent case of bankruptcy. An assignment was made by a firm in Oneida county, on the 20th of April last. They directed, in that instrument, that all their property, and the proceeds thereof, should be divided and distributed among their creditors by their assignees, in the same manner as if the same were in the hands of an assignee under the bankrupt act of the United States, by virtue of proceedings duly had in bankruptcy. Their assignment was excepted to by some of their creditors, as in itself an act of bankruptcy, or at least as contravening the purpose of the bankrupt act, and they were petitioned against in bankruptcy. The decision of his honor, Judge Conklin, declares their assignment void, and at the same time notifies the world that voluntary assignments, whether they give preferences or do not give them, inust henceforth cease under the bankrupt law of the United States. Probably a consent in writing, for consideration, signed by all the creditors, might uphold a voluntary assignment. By acquiescence, too, on the part of all the creditors, in a particular instance, the trust created by such an instrument might be executed, and not be disturbed afterwards. But in either of these cases, the debtor should not himself become a petitioner in bankruptcy, until the completion of the trust."

3. That it was yielded to the importunity of his creditors.

dry debts and sums of money owing by said Henry Breneman, which he is unable to pay at present." It would be difficult indeed to establish that any act was done in contemplation of bankruptcy within the meaning of the act of congress, if this is not such an act. Again, it is said this assignment was yielded to the importunity of his creditors and therefore it is not an act of bankruptcy.

In England it has been decided that a debtor, who

was no moral fraud-that all the debts preferred were
Judge Randall.—It is admitted that in this case there
bona fide, and justly due and that under the laws of
Pennsylvania, independently of the bankrupt law, yielding to the importunity of his creditor delivers
the legality of the assignment could not be question him a portion of his property in satisfaction of his
ed. It was the exercise of a power resulting from debt whereby the creditor obtains more than the
the ownership of property which the law had not re
other creditors will receive in an equal distribution,
strained. But there are many cases in which the does not thereby commit an act of bankruptcy. But
acts of parties who intend nothing that is dishonest no case can be found in which a debtor surrendered
or immoral, become legally fraudulent as being con-
the whole of his property, to the importunity of his
trary to the policy of law, a familiar instance of which creditors which was not declared an act of bankrupt-
is the sale of personal property for a valuable con- . Because by the surrender of the whole and
sideration, where the property is left in the posses- breaking up of his business the debtor does not re-
sion of the vendor. This, although perfectly honest lieve himself from any present difficulty which is
and binding between the parties, is, in law, fraudu- considered the motive, for such an act when really
lent as to creditors, because it enables the debtor to done under the pressure of a threat, but in this caso
obtain credit by the possession of goods to which that question can hardly be said to arise under the
he is not entitled. The whole policy of the bankrupt evidence. The proof of pressure by any one before
law is equality among the creditors. It was intend- the assignment is extremely slight and several per-
ed to prevent the debtor from giving all his property
sons are preferred who do not appear to have made a
to some relative or favorite creditor, to the exclusion demand of the amount due them.
of all the rest, and declares that such disposition of
his property shall be void, as a fraud upon the credi.
tors not preferred. That such was the intention of
congress in passing the Jaw now in force cannot be

The second section of the act provides for the case of mvoluntary bankrupts, by declaring that all future payments, securities, conveyances. &c. made or given by any bankrupt, in contemplation of bankruptcy shall be void and a fraud on the act, and the assignee under the bankruptcy shall be entitled to claim the property as part of the bankrupt's estate; and then provides that in case of a voluntary application, if any such assignment had been made by the petitioner after the 1st of January, 1841, (upwards of seven months before the passage of the law, and more than a year before it took effect,) in contemplation of the passage of a bankrupt law he should not be entitled to his discharge, unless assented to by a majority of the creditors not preferred, thus showing a marked distinction between the cases of voluntary and involuntary bankrupts.

The law was intended for the benefit of creditors as well as debtors, but the construction of the respondent would render it for the benefit of debtors

In my opinion the petitioners have fully established their right to the decree prayed for, and it is accordingly accorded to them.

Judge Conklin, of the northern district, New York, has decided in a bankrupt case, that voluntary assignments, whether they give preferences, or do not give them, are utterly void under the bankrupt law.

Some of the creditors of Walker & Kennet, of this

city, filed a petition praying a decree of bankruptcy against them. An issue was made, and on the trial it appeared that W. & K. being in failing circumstances, in April last, made an assignment of all their property and effects to trustees for the benefit of their peared to have been made, and the preference given, creditors, preferring some of them. The deed apbecause of the inability of W. & K. to pay all their debts-and it was held that it was fraudulent and void, and the making thereof an act of bankruptcy. A decree was accordingly entered.

A similar petition was filed against John J. Anderson, he having made a similar assignment. A jury was empannelled to try the issues. On the trial the court instructed the jury

1. That if they should find from the evidence, that A. at the time he made the deed, was insoivent-that the deed was made; and the preferences therein provided for given, because of such insolvency-then then said deed is fraudulent and void, and the making thereof an act of bankruptcy. And,

A's circumstances, it appeared that they knew of no 2d. If by the testimony of persons acquainted with preperty of A. not included in the assignment, it devolved on A. to prove that he had other property; otherwise it must be presumed that the assignment included the whole.

The jury, after receiving the charge of the judge, was adjourned until the following day. [St. Louis New Era, September 17.

prevent a respondent, named Davis, from disposing In Boston, last week, an application was made to of his property, by conveying it by mortgage to preferred creditors, during the pendency of a petition to

quently he sold some of his property, and put the moey in his pocket. The court ordered that an injunction be issued forthwith.

Again, it is made the duty of the assignee to claim the property as part of the assets of the bankruptcy but how can this be done, unless the party be declar ed a bankrupt, for until the decree of bankruptcy there can be no assignee. The doctrine contended for by the respondent's counsel would completely nullify so much of the law as prohibits a preference of one creditor over another. A man might assign the whole of his estate to one or more favorite creditors. to whom he was bona fide indebted, and not apply for the benefit of the bankrupt law, but, if pressSome time in March last, Henry Breneman, mer-ed by his other creditors, be content with an exempchant in Columbia, made an assignment of all his tion from personal arrest, by a discharge under the effects under the insolvent laws of this state, prefer- state insolvent law, and if his creditors cannot proring certain of his creditors. A petition was after-ceed against him and have him declared a bankrupt, wards presented to the district court, Judge Ran- by adverse proceedings the assignment would remain dall, by two of his Philadelphia creditors, praying to effectual. Such I conceive could not have been the have said Breneman declared a bankrupt under the intention of congress. law of congress. The case was under examination in Philadelphia for several days, when Judge Randall delivered his opinion, deciding that the petition of said creditors ought to be granted, and according only. It has been said that congress has no power to the court that he might be declared bankrupt. Subsely declared Breneman a bankrupt. This decsion, of pass a law which would have the effect of making course, takes his property out of the hands of his void an assignment recognized by the laws of Pennassignees and divides it equally among all his credi-sylvania. This argument was not much pressed; intors, and decides also that the insolvent laws of the deed it could not be, for independent of the express state are superceded by the general bankrupt law, power given to congress, by the eighth section of the In a recent case at Pittsburg where the sheriff in cases where a man's debts exceed $2,000, the only first article of the constitution of the United States, levied upon various articles of household furniture case in which he can be declared a bankrupt against the decisions which recognise the validity of assign- which had previously been returned by the owners, ments with such preferences recognize them express on their application for the benefit of the bankrupt A highly important decision, as to the effect of the ly on the ground that there was no bankrupt law in law, in their schedule for the benefit of their creditors, bankrupt law, in cases of voluntary assignments for existence at the time. But it is said the respondent Judge Irwin gave it as his opinion, that "from the the benefit of certain preferred creditors, was had in never intended applying for the benefit of the bank- time of filing a petition in bankruptcy, the petitionthe district court of Philadelphia, on Saturday the rupt law and therefore the assignment was not made er is by law deemed a bankrupt, and the property 21st ult. before judge Randall, in which Henry Bre- in contemplation of bankruptcy. Bankruptcy howe- mentioned in his schedule, if not secured, by previneman, late merchant of Columbia, Lancaster coun- ver does not consist in the proceedings in court; it ous lien, belonged to his creditors generally, and could ty, was declared a bankrupt, on the application of takes place in the course of a man's business, and the not be legally seized upon execution by any of them. certain Philadelphia creditors. Mr. B. had convey proceedings in court are to ascertain whether the That if it remained in possession of the petitioner it ed all his property by deed of assignment on the 10th party was or was not a bankrupt at the time the origi- was in trust for his creditors, and that after the deMarch, 1842, to Reuben Mullison, in trust to pay nal petition was filed. Bankruptcy is said to be the cree in bankruptcy, their rights related back to the certain preferred creditors On the seventh day of state of a man unable to pursue his business and meet tune of filing the petition, and that it would be the April last, certain creditors applied to have Mr. B. his engagements in consequence of the derangement duty of the assignee in bankruptcy to demand such declared a bankrupt-contending that the assignment of his affairs. Now what can more effectually ren- property, or sue for it or its value, as circumstances is in violation of the act of congress entitled "an act der a man unable to pursue his business and meet his might require. Unless, therefore, it was proved that to establish a uniform system of bankruptcy through- engagementss than a transfer of all his property for the application for the benefit of the bankrupt act was out the United States," passed August 19, 1841, and the benefit of some of his creditors and to the exclu- not bona fide made, an injunction would be directed therefore void, and is in itself an act of bankruptcy. sion of others. Can it be supposed he did not con- to Issac to prevent the sale of the property mentioned And the respondent contended, template the entire breaking up of his business and in the execution unti further order, with permission his inability to meet his engagements at the time he to the respondents to move to have it dissolved, in executed the assignment. In this case the instru- case the petition is not prosecuted, or in caso a decree ment itself avers as part of the consideration “sun-, in bankruptcy should not be granted."”

his will.

1. That the assignment is not fraudulent within the meaning of the act of congress, as all the preferred debts are honestly and justly due.



Decision of the supreme, circuit, and district courts of
the United States.


A case has been recently determined by the hon. | sue him, and hurry their suits to judgment and exe- | owes debts in a fiduciary capacity is entitled to a disU. S. Heath in bankruptcy, which involves principles cution. The debtor makes no resistance, and so the charge under the law, and if so, of what nature and A creditor attaches property and pays himself,-after effect. Story, J., on Tuesday proceeded to deliver his opiof much importance to debtors and crediters. petition was filed by two creditors of Mr. Thos. which the debtor applies for the benefit of the bankJ. Flack, of this city, alleging him to be insolvont, rupt act, and with clean hands too, for he has given nion upon the question, whether the circumstances and to have been guilty of a fraud in giving prefer- no preferences; and in fact done nothing at all; and urged against the discharge of the bankrupt, constiences to creditors in contemplation of bankruptcy, yet all his preferred creditors are as snugly provided tuted any valid objection to his right to a discharge and claiming, consequently, that he should be de- for as they would have been in the worst days of as- and certificate; he was sorry to say there was room the apparent conflict of decisions in other circuits. clared a bankrupt. It was the first contested case of signments. Here is a hole through which a bear or for doubt, and that doubt was greatly increased by In Virginia it had been held by one of his learned "involuntary bankruptcy." Much testimony was of bull may go without scratching his sides. [Journal of Commerce. fered upon Mr. Flack's condition. Mr. Flack failed [The following article is from Kinne's Law Com- brothers, Mr. Justice Daniel, that a person who owes fiduciary debts, is not entitled to the benefit of in March last. It appears that he was brought into the bankrupt act, and is not within the scope of its sudden difficulty by liabilities he had incurred for a pendium, is on the same subject.] provisions, and could not be declared a bankrupt so merchant who had failed, but who had, when the liabilities were assumed, assigned a number of claims long as he remains in that predicament. On the other hand, in Ohio and in New York, two others of his as security to Mr. Flack exceeding in amount the sum of the liabilities. There was no very specific 1. Has not an insolvent debtor, a right to prefer learned brothers held the contrary doctrine, that such testimony to show what probably the securities would yield-but one of the creditors testified that reducing one creditor to another in payment by an assignment? person is within the scope of the bankrupt act, and He has, if made bona fide and no subsequent attach- may be declared a bankrupt, notwithstanding he owes fiduciary debts. them to one-half of their nominal value, and making Mr. Justice M'Lean, of Ohio, holds, (1) that no large deductions from other assets of Mr. Flack, he ment, or subsequent acquired lien will avoid such was likely, if allowed to liquidate his affairs himself, assignment, may include choses in action as a policy to pay all his debts and retain a surplus of several of insurance, &c. Nor is it necessary that such an relief can, under the bankrupt act, be given against thousand dollars. and meanwhile maintian his family. assignment should be accompanied by an actual de-a fiduciary debt. (2) That the debt in that case, And the disposition of the creditors at large, (the livery of the policy. So also an assignment is good having been contracted before the passage of the petitioning creditors excepted), seemed to be to per- against a subsequent attachment although the credi- bankrupt act, the applicant was not thereby deprived mit Mr. Flack to continue undisturbed in his busi- tors were not originally parties to the assignment, if of the benefit of the act as to other debts. ness and to pay them as means should accrue to him; they have in fact assented thereto before the attachconfidence being strongly entertained in his integrity,ment, and the assignment is valid if the creditor and prudence, and industry. There was no attempt, have actually received the benefit of it. And it is but on the contrary a disclaimer of all purpose, to no objection to such an assignment, that it defeats show any fraud, in fact, on the part of Mr. Flack- all other creditors of their legal remedies? even if abut the fraud charged to him was only constructive mounting to a majority in number and value; unless in 1st paying his creditors on debts incurred in his there be some express provision of a bankrupt law to own business; 2d. having made an assignment of invalidate the deed. It is not fraud upon an attachclaims due to him out of Maryland, for the benefit of ing creditor, to provide for the payment of all the his creditors generally, but with the object declared creditors, in preference to one, who means to attach on the face of the assignment to prevent attachments by process, the property conveyed. It has never been abroad of his means. It was as to this assignment in alleged in the United States that a general assignproof that the trustee under it was in the habit of ment of all a man's property for the benefit of his paying over to Mr. Flack the sums he received as creditors is per se fraudulent. The right to make it the trustee, and that Mr. Flack applied those pay results from the absolute ownership which every man It is not even ments to satisfy his, Mr. Flack's, debts arising on his claims over that which is his own. own business. It was argued that this conduct of necessary to the validity of a deed of assignment for the trustee indicated the actual design of the assign the benefit of creditors, that creditors should be conment to be to keep Mr. Flack in control of the claims, sulted at all.-Spring et al. v. and that therefore the assignment was void. The rance Co., 8 Wheaton, 268. 5 Cond, R., 434. v. Minturn, 2 Gall. C. C. R. 557. Halsey v. Whitjudge overruled this objection, and decided the asBrooks v. Marburry, ney, 4 Mason C. C. Rep., 206. signment to be fair and meritorious. 11 Wheaton, 78. 6 Cond. Rep. 223. Brashear v. West 7 Peters, 608.

Mr. Justice Thompson, of New York, holds, (1) That the existence of a fiduciary debt does not preclude the party from taking the benefit of the bankrupt act as to all other debts. (2) That the bankrupt act being intended for the benefit of creditors, a fiduciary creditor is not bound to come in and take his dividend under the act, but he has an election to do so if he chooses. (3) That unless the fiduciary creditor does not elect to come in under the bankruptcy, his debt is not discharged thereby, but that the bankrupt is or may be entitled to a discharge from all other debts.

In this state of the authorities, Mr. Justice Story said he was reluctantly compelled to examine the question de novo; and upon the best consideration be had been able to bestow upon the subject, his opinion was that the existence of fiduciary debts, owing by the petitioner, constituted no positive incapacity, or valid South Carolina Insu- objection to his being declared a bankrupt, and obtainBrowning the benefit of the act, if he owes other debts, not of a fiduciary character.

On the other ground the testimony was, that Mr. Flack had, since his failure, paid a number of notes An assignment of a debtor of all his effects for the as they fell due, which were upon his own business transactions; and such payments were insisted to be benefit of such of his creditors as should release their undue preferences and a fraud on the bankrupt act, debts in sixty days from the date of the assignment, and "fraudulent" acts within the terms of the law as where there was no fraud, was held to be the instances in which a debtor may be coerced Pierpont & Lord v. Graham, 4 Wash. C. C. R.232. into bankruptcy. The court determined:-1. That The debtor may prefer one creditor, pay him fully, preferences to creditors when the debtor contem- and exhaust his whole property, leaving nothing for plates bankruptcy, are frauds which might authorise others equally meritorious.-Clark et al. v. White. 12 a debtor to be declared a bankrupt involuntarily. 2. Peters, 178. That positive proof of an intention to become a bankrupt under the act, or of expectation of being compelled into bankruptcy as an involuntary bankrupt, was not necessary; but that the contemplation or anticipation of such an event or measure might be inferred from circumstances, as the desperate condition of the debtor's affairs, and his having no prospect of arranging with his creditors. 3. That inabiy to pay promptly was not an insolvency which was to argue a view to technical bankruptcy; that to preclude any such inference it was enough to show that the debtor was likely eventually to pay his debts, or to a great extent.




Upon the other questions in the case, the learned come to the following conclusions: judge said, that after considerable reflection, he had

1. That fiduciary debts are provable under the proceedings in bankruptcy equally with the other debts,

at the creditor's election.


2. That if the fiduciary creditor elects to come in and prove his debt, and to take a dividend, he is barred of all other remedy therefor, except out of the 3. Upon another point he had felt more difficulty, namely, whether fiduciary debts, not proved under the proceedings in bankruptcy, are extinguished by hesitation, he had come to the conclusion that they a discharge and certificate under the act. After some DECISION IN BANKRUPTCY. Judge Story, says the are not. Upon this construction of the acts, as sayBoston Post, lately delivered a decision as to fiduciary ing the right of the fiduciary creditors, and exempting debts under the bankrupt law, in the United States them at their option from the operation of the act, circuit court in that city, as follows: "First that the from motives of public policy, and the design of putexistence of fiduciary debts, contracted before the ting strong marks of distinction and reprobation passage of the act, would not deprive the petitioner upon official and fiduciary defalcations, we might of a right to a discharge in bankruptcy from all his readily see why the party may still be permitted to other debts. Secondly that the claims of those hav- obtain the benefit of the act, as to other debts, withing legal demands against the administrator would out in any manner impairing this policy. It leaves still remain good against him, notwithstanding his the party, as to his fiduciary debts, where he finds Thirdly that if these him, to the justice, and it may be, to the mercy of discharge in bankruptcy. By the fourth section of the act, the bankrupt is The judge fully reviewing all the facts of the case, creditors came in with the other creditors for a share the creditors. determined that there was no ground for imputing to in the assets of the bankrupts, they would be stopMr. Flack a contemplation of bankruptcy in making ped from further proceeding against him after his denied any discharge, or certificate, if after the passthe payments complained of-but that, or the con- discharge; and fourthly-that fiduciary debts, con- ing of the act, he shall apply trust funds to his own trary, there was every thing in his course of pro- tracted subsequently to the day of the passage of the use." It was plain that such a misapplication after ceeding to show that he had no such a result in view, bankrupt law, would entirely prevent the discharge the passing of the act, is treated as a gross fraud, and that there was nothing in his situation to en- of the bankrupt. force the conclusion that a bankrupt process was to The Boston Daily Advertiser furnishes a report of be anticipated by him as unavoidable. The judge commented at much length on the testimony to de-a case before the circuit court of the United States, scribe the condition of Mr. Flack's affairs, and to illustrate the good faith of his conduct since his failure. He dismissed the petition.

Counsel for the petitioning creditors, J. Glenn and J. M. Campbell, esqs.; for Mr. Flack, D. Stuart and [Ball. Clipper. Charles F. Mayer, esqs.

in which an elaborate opinion was delivered by Judge Story, involving important questions relative to the rights under the bankrupt law of persons owing debts in a fiduciary capacity. The question arose upon the petition of J. C. Tebbets, to be discharged from his debts-his application being opposed on the ground, that in 1836 he was appointed A Hole in the bankrupt law. One of the chief bene-administrator of an estate and received the sum of $12,404, belonging to the estate which he had never fits which the bankrupt law was expected to secure, was the prevention of frauds in regard to confidential accounted for. debts. The law provides that no man shall be liberated from his debts under it, who has given any preference to one creditor over another. But mark the short vision of legislators. The way the thing is doing is this:-a man fails; he gives no preference to any body. But certain creditors among his friends immediately

which ought to deprive a party of any discharges or
certificate under the act as to all his debts whatsoever,
not only such as are fiduciary, but all others.
In this mode of construing the act, the learned
judge said, the distinction between the fiduciary debts
and others is constantly preserved. Misapplication
of fiduciary funds before the passing of the act, de-
prives the party of all right to a discharge from them
only; misapplication after the passage of the act, de-
prives him of all right to a discharge from any debts

The remaining question was as to the form of the bankrupt's discharge. Ought it be in a general form, or with a special exception of fiduciary debts? He In the list of his debts, this debt appeared as among thought it should be in a general form,-first, bethe ordinary individual debts due from him or his cause no other form was contemplated by the act; copartners, whereas in fact, the debt was created in and secondly, there was no necessity to except fidu Upon and certificate, for if they are by implication exconsequence of a defalcation by him, while acting ciary debts from the general term of the discharge in his fiduciary capacity as administrator. this, the question arose, whether a bankrupt who cepted from the operations of the act, where the

fiduciary creditor does not come in, prove his debt. and take a dividend under the proceedings, it is plain that the terms of the discharge, however general, cannot vary or control his rights; and that his debt will not be barred or extinguished thereby; but he may, if the discharge and certificate are pleaded to any suit for his debt, reply the fact that it is a fiduciary debt.

The result of the whole opinion, therefore, was, in discharge, but it will operate only upon those debts this particular case, that the bankrupt might have his which he does not owe in a fiduciary capacity. In regard to such he will still be liable, unless the persons to whom they are owing come in and prove them, and take a dividend.

There were one or two other questions, of minor importance, discussed, for which we have no room


In conclusion, the judge said, he agreed with Mr. Justice Thompson, of New York, in every particular. He also agreed with Mr. Justice M'Lean, of Ohio, as far as he went. It was the misfortune of all three, that they differed toto cælo from their learned brother, Mr. Justice Daniel, of Virginia, in his opinion, before referred to.

It will be recollected that Mr. Justice Story in the case of John Tebbetts, decided, among other things, that although a bankrupt could not ordinarily be discharged of fiduciary debts, yet if the fiduciary creditor comes in and proves his debts, he is barred of all other remedy therefor, except out of the assets. Before this decision was made, the city of Lowell

proved a debt of several thousand dollars against Brain Morse, who was formerly a collector of that city, and a defaulter. The city proved the debt for the express purpose of objecting to the discharge of the bankrupt. But by the decision of the circuit court they were in fact barred by this very act. They accordingly petitioned the district court on Saturday, for leave to withdraw their petition.

The point was argued by Colby, of Lowell, for the city, and by Morse, of Lowell, for the bankrupt. Srague, J. was clearly of opinion, that, under the circumstances, the petitioners ought to be permitted to withdraw their proof of debt, and he ordered accordingly. [Boston Daily Adv. Sept. 12. Judge McLean, of Ohio, has decided in a recent bankrupt case, that where the bankrupt owed debts of a fiduciary nature within the law, which were

contracted before its passage, he might be discharged

from his other debts not of a fiduciary character, but if the indebtedness originated since the passage of the law, he could obtain no discharge under it from any debt.

"Alia lex Romæ, alia Athenis." Another discrepancy of construction in regard to our uniform system of bankruptcy has shown itself. other securities of property real or personal, which The law declares that nothing therein contained shall be construed to impair any liens, mortgages, or may be valid by the laws of the states respectively, &c. The laws of Massachusetts and Vermont authorize a creditor to acquire a lien by the attachment of a debtor's property on mesne process. In Massachusetts Judge Story has decided that all such attachments are dissolved by the insolvent's being

his defalcation as a public officer; and that he might against such debts. Mr. Justice Thompson, of New
be discharged of the latter also, or not, as the credi-York, it is believed, concurs more nearly in opinion
tor might elvet to prove it against his bankrupt es- with Judge Story than do the judges before men-
tate, or stand-out. This construction was not enter- tioned. Thus then we have one law for Massachu-
tained by the court, on the ground that the declara-setts, another for Ohio, and a third for Virginia:
tion in the 4th section, that the "discharge and cer-
tificate shall be a full and complete discharge of all
debts, contracts, and other engagements of the bank-
rupt which are proveable under this act," does not
whatever, to depend upon whether it be proved by
leave the effect of the discharge in bar of any debt
the creditor and claimed against the estate or not;
and from the fact that this form of expression could
not have been employed to narrow the effect of the
certificate, but was probably selected to embrace all
"Contingent and uncertain demand, the holders of
which are expressly permitted by the succeeding
section "to come in and prove under the act."
declared a bankrupt; in Vermont, Judge Thompson
The court further expressed the opinion,-
"That the object of the section of the law having made by creditors, before an act of bankruptcy and
holds to the opposite doctrine, and attachments
reference to this matter, was most manifestly to ex-in good faith, are declared to be valid liens, and are
clude every person owing debts in consequence of sustained. Thus again, one law for one state and
of the federal government, they had, but six days be- have no bankrupt law, for the district judge of that
his defalcation as a public officer,-which, in officers another law for another. Finally, in Missouri they
fore, declared should be thenceforth deemed a felo- state (Wells) has declared the law to be unconstitu-
ny, together with all other persons coupled with
them in the exclusion, from entering this door of the tional, and from his decision there is no appeal.
court with their own original petitions for the bene-
fit of the act." The petition was dismissed.


We noticed a few days since, a decision in a federal court, in Missouri, shutting out defaulters and all persons who owed debts in a fiduciary relation from the benefit of the bankrupt law.



Landlord's and tenants. The hon. Thomas Irwin, of the United States district court sitting at Pittsburg has given a decision in the case of bankruptey of some importance to landlords and tenants. Individual rented a farm for two years, from April 1841, payable yearly. The year's rent due last April sented his petition in bankruptcy. Previous to the was not paid, and in June following, the tenant prehearing of the petition, the landlord distrained the

Judges Daniel and Mason, of Va., have just made a similar decision in the U. S. court for the 5th circuit held in Richmond. The Compiler says: The decision was upon questions adjourned from the Norfolk district court, as follows: 1st. Can the court decree the petitioner a bank-property on the premises for the rent due. The rupt under the act, &c., when in his petition and bankrupt obtained a rule to show cause why an inschedule, he does not include all his creditors and Junction should not issue to restrain proceedings under distress, and have the property restored. The the debts due them? 2d. Can the petitioner be so declared a bankrupting of opinion that the right of the landlord to discase was argued and the rule dismissed, the court be. whilst he owes a debt as administrator of a descen-train the property on the premises and to sell, was other debts not of a fiduciary character? dent's estate, which is unpaid, although he may owe The judges, after stating their arguments, and referring to the parts of the law bearing upon the in

terrogatories, decided:

creditors and property, to be rateably distributed
1st. That the statute designs a full disclosure of
amongst them-a suppression then as to the one or
the other, is not only a violation of the letter, but a
fraud upon the main purposes of the law.

2d. That a petitioner cannot be decreed a bank-
rupt while he owes a debt as executor or adminis-
trator, whilst he is a defaulter as a public officer, or
as a guardian or trustee, or whilst acting in any other
fiduciary character.

not impaired under the provisions of the bankrupt

law. It is not known whether the decision relative

to the rights of the landlord to distrain, extends to rent accruing after the filing of his petition, or whe

ther for such rent, property returned in the schedule Uniten States court for the western district of Vircan be exposed to sale. Judge Pennybacker; of the in bankruptcy, and the order of publication, the peginia, has decided that "after the filing the petition tion can be levied upon his effects, nor a landlond's titioner is exempt from a ca. sa. and that no execuwarrant of attachment. This is contrary to Judge Irwin's decision.

Decision. Judge Randall on Thursday dismissed a motion for an injunction to stay proceedings under a levy made by virtue of a landlord's warrant for rent which goods had been distrained afer the petitioner for the bankrupt act had been declared a bankrupt. The goods were liable under the produe, and stop the sale. cess, but the assignee might pay the amount of rent [Evening Journal.

In the U. States district court of Missouri sitting in bankruptcy, a decision was made by Judge Wells, which is of sufficient interest to be generally known. It appears that the petitioner for the benefit of the bankrupt act, independently of his ordinary debts, was a defaulter as an administrator on an estate. Objections having been made to his discharge on this This decision has been submitted to the chief jusground by his creditors, the petitioners' counsel con- tice, and we understand, has been approved by him. tended that he might be declared a bankrupt and ob-| "The congress shall have power to establish unitain a final discharge as to all debts not created in form laws on the subject of bankruptcies throughout consequence of such defalcation, notwithstanding the United States." [Constitution of the U. States. the debtor was a defaulter at the time of his appli- Congress, by virtue of this authority, has passed a cation. The Judge overruled the plea, and decided that the petitioner could not be declared a bank-law regulating insolvency primarily, and bankruptcy rupt, nor be discharged from any of his debts, in decisions of the courts are every day proving. This It is important for the safety of lessors, that leases The effect of the United States bankrupt act on leases. incidentally, and that it is not a uniform system the what way soever created. is not only not surprising, but it is the necessary con- hereafter made should make provision for the bankA decision was made by the U. S. district court sequence of the provisions of the act, for there is no ruptcy of the lessee, as on such an event his estate and of Kentucky, sitting in bankruptcy on the 30th ult. appellate power to regulate the eccentricities of the interest in the premises will pass to his assignees, at Lexington, in the case of a Mr. William Johnson, judges. The district court of the United States has if they choose to accept it, and not otherwise; if they which is of general interest. It appeared on the exclusive jurisdiction in all matters in bankruptcy, do accept it, they may transfer it to whom they petitioner's own showing that he was indebted some and is not bound to invoke the aid of any other tri-please--even to a beggar-and the assignees will six or eight hundred dollars to the city of Louisville, bunal; the district judge may, if he will, adjourn any not remain responsible for rent after such transfer. in consequence of his defalcation as clerk of the point or question into the circuit court to be there board of mayor and council, on account of monies heard and determined; but he is under no obligation law contains a special clause, avoiding the lease if In is insufficient and immaterial that the original received by him according to his duty as such officer, to do so, if he choose to execute the duty alone. the lessee should underlet, &c., because such a clause for licenses to hacks, coffee-houses, &c; and which Accordingly, the constructions put on this act by the applies only to voluntary transfers by the lessee, and different judges, are as various as might be expect- not to assignments by the act of law. Such a clause ed from men of various minds, learning, and ways will not prevent the interest of the lessee from passof thinking.

in the disposal of it.

he had failed to pay over according to the laws of the city. The court decided that Johnson was a public officer within the statute; and that although such terms, (i. e. public officers, &c.) may in some of Mr. Justice Daniel, of Virginia, one of the judges ing to his assignees, in bankruptcy, nor restrict them their predicaments in other acts of congress be con- of the supreme court, has decided that an insolvent fined to the officers of the federal government, yet, who owes debts arising from defalcation as a public In bankrupcy. On the 6th inst. Watson, Chew & regarding the subject of this statute with the con- officer, or as an executor, administrator, &c. cannot Co filed their petition, claiming that Leman & Adtext of the words, and their juxta position with the take the benefit of the bankrupt law. Mr. Justice dy should be declared bankrupts, and on the 7th inst. words executors, administrators and guardians, they Story, of Massachusetts, another of the judges of Mordecai Cohen distrained the goods of Leman & do here include all state officers; and that the officers the same court, has decided that such an insolvent Addy for rent due him on the 1st inst. The petitionof a city corporation, exercising within its territo- may be a voluntary bankrupt under the act, and maying creditors thereupon filed a bill for an injunction rial limits a portion of the public authority of the be discharged from all his debts except those of a against a sale under the landlord's distress, until a state, are literally and in the sense of the law, pub-fiduciary character, and from those likewise, if the decree of bankruptcy and the assignee could be aplic officers. creditors chouse to present and prove them. Mr. Justice McLean, of Ohio, another of the judges of the supreme court, holds that the insolvent who owes debts of this character may become a bankrupt, but that no relief under the bankrupt law can be given

The petitioner's counsel then contended for such a construction of the bankrupt act as that he might be declared a bankrupt and be discharged of all his debts except that which he owed in consequence of

pointed, to contest the landlord's right, or take steps for an advantageous sale of the debtors property for the benefit of all concerned. On this case his honor Judge Gilchrist ruled the following points yester day, in the court of bankruptcy:

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