Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1844-11-15
DISTRICT COURT or THE UNITED STATES
VERMONT DISTRICT,
OCT TERM, 1sii-IN BANKRUPTCY.
IN The matter of Timothy Reed.

GhmQNl OlDl hlClJ
OCT. TERM Is4i-IN BANKRUPTCY.
IN The matter Of Timothy Reed.
This was an application by Timothy Reed,
bankrupt for discharge The facts in the case,
well as the objections filed by the opposing cred
itors, will sufficiently appear from the opinion de-
lvored by the court.
PRENTIss, j. Three objections are nterposed
to the allowance of discharge to the bankrupt
The first alleges fraudulent concealment of prop
erty, by willfully emitting to insert in his schedule
several articles of personal property particularly
enumerated and specified. This objection requires
no further notice, than to say that it is not supper
ted by the proofs.
The second and third objections may be consid-
cred together; the one alleging various fraudulent
conveyances and transfers, without any adequate
valid consideration, to certain individuals named in
the objections of real and personal estate to large
amount within the second clause of the second
section Of the bankrupt act; the other alleging the
giving of fraudulent preferences to the same per-
sons, by the conveyances and transfers of the same
property, within the first clause of the same sec
ton of the act
1t should be observed here, for the sake of prop
er discrimination and dstinctncss that much Of the
testimony taken in the case, which, by the by, is
quite vouminous and presents variety of transac-
tons has no direct application to any of the ques-
tons arising out Of either of the objections. The
inquiry, by the rules and practice Of the court is
limited TO such transactions as are embraced in the
objections, and to them the testimony should, regu-
larry and properly, have been confined At any
rate, all beyond, if not wholly ir eevant to the
matters in issue, cannot be considered us having
any other purpose or effect than the general one
to shew the state and condition Of the bankrupts
affairs at the time the conveyances and transfers
were made which form the stated grounds of oh
lection.
Passing by, then, such of the testimony as ap-
pears to have no direct bearing upon the objections
the material facts necessary to be advcred to, are
these: On the 10th of January 1872 after the
bankrupt law was passed, but before it went into
operation, the several persons mentioned in the OBJ
ectons, being creditors Of the bankrupt instituted
suits on their respective debts and attached all the
real and personal estate of the bankrupt, being the
same estate alleged in the objections to have been
conveyed and transferred to them. The suits were
instituted for TIE Joint benefit of the several attach
ing creditors under understanding that the avails
OF the property attached should be divided among
them in proportion to their respective debts and
without, as some of the creditors who have been
examined as witnesses say, the procurement of the
bankrupt, or any concert whatever with him. The
personal property, thus attached, consisted of hor-
ses, cattle, Sheep hay, grain, and farming utensils,
and was sold by the attaching officer at public auc-
ton after being regularly advertised, on the 9th
of January, before judgment, with the consent of
the bankrupt and the creditors in writing and the
availS of the property so sold were afterwards ap
porioned among the several creditors according to
the understanding existing between them judg-
ments being obtained for the debts in suit by con-
iesson. The bankrupt, on application of the cred
itors quitclamed to them all his interest in the re-
al estate attached consisting of an equity of re-
demptiou, worth, according TO the estimate made,
about 1856.
The testimony is very full to shew, that the at
taching creditors were bona fde creditors to an a.
mount greatly exceeding both the proceeds of the
personal property and the value of the interest in
the real estate; and from the facts proved, there
can be doubt of the integrity or fairness of the
transactions, considered independent of the bank
rupt law, although the creditors thereby obtained
preference. Whether the transactions constitute
such preference the law forbids, is the question
which remains to be considered.
As the bankrupt, at the time of the attachments,
was deeply insolvent, his real estate being incum-
bered by mortgages to heavy amount, and owing,
he did other debts far beyond his means of pay.
ment, the case would be a clear one against him,
if there was any evidence of collision between
him and the attaching creditors, or such collision
could be firly infer ed from the transactions them
selves. But instead of there being any such evil
dence, or any such inference being allowable, the
testimony shews that the attachments were wholly
and exclusively at the instance Of the creditors,
and that the proceeding on their part was really
ana altogether adverse We have only to consider,
then, the nature and extent of the right acquired
b. the creditors by virtue of the attachments and
the effect of the bankrupts consent to the sale of
the personal property before judgment, and of his
qutcaim of his interest in the real estate, connec
ted with the fact of his confessions Of judgment in
the suits.
| have no disposition to enter into any further
discussion of the question, whether an attachment
! is lien within the saving clause of the bankrupt
act. That question has been already sufficiently
discussed by the courts of the United States, here
and elsewhere, and must be considered as settled,
in this district at least, by the Of Downer Us.
Bracket, 5 Law Reporter, 800, H1ughton rs. Ells-
lis, Law Reporter, sos, and the matter of Rocell,
! 6 Law Reporter, 1858. These decisions have been
| followed up by decision of the Supreme Court of
this state to the same effect, made in December
last but not yet reported; and by a corresponding
determination of the Supreme Court Of New Hamp-
shire in the case of Kittredge rs. Wdrren, Law
! Reporter, H. The concurrence in these two
states of their highest courts upon the same ques-
ton, composed, as the court in each state is, Of
Judges of large experience, sound judicial discre-
ton, and acknowledged learning and ability, whose
opinions are entitled to great weight upon any
question, and especially upon one depending main.
ly upon local law, such as the nature and effect Of
an attachment would seem to be confirmation, quite
sufficient, of the decision first made upon the ques-
ton in this court and afterwards affirmed in the
Circuit Court. Still, however unnecessary or un.
called for it may be, | will advert in very few
words to one or two isolated points, intending by
no means to 20 into the general argument.
1t is said that an attachment is a conditional con-
tngent lien, dependent on the judgment in the ac-
ton and being thus conditional and contingent, it
is not a lien within the meaning of the bankrupt
law. 1t is true that an attachment is dependent
To-, final effect on the result of the suit and
other proceedings to be had and 50 far, and in
that sense, the lien is conditional and contingent
But it is not on that account any the less an abso-
lutte and fixed lien BY the term absolute, do not
mean that the lien is unconditional, but that it is
complete aud perfect lien during its continu-
ance, as much as a lien by judgment or any 9th
err lien 1t is created by the attachment, and de
rives its force and efficacy from the attachment 1t
exists anterior to- distinct FROM and independent OF
the Judgment, and is for the express and specific
purpose of giving to the creditor security for his
debt in advance of the judgment. a judgment, IL
be sure is necessary to enable the creditor to avail
himself of The benpGt of the lion and so is n OK.