The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-02-13

dscussion' the supreme Court decided that 1t was
the DUTY OF the Recorder to the mortgages,
and they affirmed the decision of the Parish Court,
after which the Recorder erased the mortgages
Now here were proceedings lasting in point Of time
about ten years. in the Of which, notification at
six different times given to the City Bank but without
Offering any opposition 10 the process Of the Court with
full knowledge Of its proceedings, with knowledge
Of the sale of the property with that that
sale WAS perhaps the most attractive and numerousy
attended sale that took place in tho city OF New
Orleans All this time, META murmur whisper of
opposition not the slightest obstacle thrown in the
italy true and correct narrative Of the ct
tending this case and It not until after the sale
was thus psrfsctsduntil after tho operation of the
Bankrupt Court had boon completed-until after the
property had been administered fully according to the
requirements shall endesvor to show presently of
he bankrupt sw-uut after the process Of the federal
authority was contaminated and exhausted that this
City Bank for the rst time puts itself in motion and
aside all these proceedings and of not only the
decision of the bankrupt court but the decision Of the
old Supreme Court Of Louisiana, and as shall also
to state what | mean to contend for in this
case, | beg cave to be permitted to state
40 mot d nnd 70 to, tor
the Bankrupt Court exclusive of the State Court and
it is not necessaryto maintain that during their pro.
gress can snjoin its proceedings and administer the
property Of the bankrupt mortgager 1t not
tor US to contend in this that they have made
concurrent jurisdiction between the Bankrupt and the
state Court, and that whichever of these CON
current tribunals according to the State law, first
gets hold of the case decides dsposes of the property
cludes the jurisdiction OF the other court during the
progress; and much after the termination Of the
to maintain in this CASE in order to secure to
client, limited, and extremely happy to find
upon review of the proceedings of this court that
cry member OF the BENCH as far opinion has been
In the case concurs in the principle that the
bankrupt court has power and authority under
the bankrupt act to aaa.inister the estates which
are encountered rs we'll as those which are free |
think 1t sunnecessary, indeed it would not be
what dsrss pectul to the Court to attempt the array
N tO hon whiC hava hopn
presented TO the Court in Christy,s and Boyds
think that your honors ought to vndicats the dignity
ever But there two three reflections which have
occurred to myself and which with great Difference
will submit not that think it at all necessary but since
it has besn insisted with much apparent sincerity
that the former decision erroneous trust shall
be and take leave in tho Arst plac. to
sent to the Court short view, such have taken of
this bankrupt set in relation to its provisions
The first section Of the act authorizes the institution
of suit by petition in which, Is have already stated
the plaintiff and his creditors are defend
ants He Is required to exhibit full schedule of all his
property Of every kind and nature whatever and
he is required TO verify the correctness OF the
schedule by oath or affirmation, as the case may
be. There is to be full disclosure made Of
creditors. And the suit thus upon petition
to proceed to ito final hearing and the decision of the
declares that dcto, without any further specific
proceeding for that purpose the whole of the property
surrendered by the bankrupt shall be vested in his
signee Now what's the property which thus vested!
not that which by the est section he required to
present schedule of Is it not all his property every
nature kind which he is compsled to exhibit to the
court? There be doubt about it. Well, then,
by another section Of this actthe tenth sectionit is
required OF the bankrupt court that make SALE and
cause to be reduced to cash all the assets of the bank
rupt, and to distribute them among his creditors The
arst section requires the of all the property
ton Of the among the creditors What assets
are to be reduced to cash and distributed? Those
which, by the third section, it is declared, to be
vested in the assignee most unquestionably Then put
these three sections together and it results that the
bankrupt himself ID required to render full schedule of
his property which to surrendered the assignee
and then be reduced cash and distributed among
the creditors, according to their respective claims
Now, what the rights, first of the bankrupt? The
power to transfer the estate to the assignee aud mort
gagged property throughout the States generally and in
Louisiana in particular part of the property which
other side says, that the bankrupt has right to the
possession of morgaged property He has SIR after for
sion but the bankrupt himself has only ths power to
transfer the estate to the assignee and he must into
court Of equity and be relieved And think it will
DO found according to practice at least, whatever the
theory may be- that in all the States the mortgsger
well as the MORTGAGE has the right to 60 into court
of equity aud ask sale of tue morgaged property
put the ola mortgage upon property worth twenty
times the amount of the debt the morgager having
other property He will not have right, according to
doctrine Of the gentleman to 60 into of the Court of
Equity and ask for the sale Of the property and the pay
ent to himself of the residue after the debts been
discharged Why, In the Of who had other
means would be preposterous that he could not effect
sale without prior payment whilst he is totally d.
vested OF all means OF payment md the
tice as stated to be in England is that it frequently
that the mortsager goes into court aud sale
OF the property aud it is granted The sale takes place
aud the proceeds are surrendered to him after the psy
ment of the amount of mortgage This is tie case,
aware also in Kentucky as well as many other States
pose of eRectng redemption Of the property upon pay
ment OF the money due upon mortgage. The objection,
il It does exist, only be made BY demurrer But
such objection dees exist But was proceeding to state
my views regarding the bank upt act Taking the first
third and tenth sections together the aggregate view of
petty and has oil rights which the bankrupt had that
he bound to effect sale to reduce the assets to cash.
and pay it ovsrto the creditors according to their
pectve claims This brings to consideration of the
provso In the second section OF the act And what is
that provso What is provided by the proviso? What
s expected from the operation Of il The provso SIM
ply Declares that the rights Of minors and of married
women, mortgages and other liens valid by tho laws of
the several States shall impaired annulled, or
destroyed Mr. Clay here quoted from the act Now,
may 1t please the Court It Ia not the property that is
exempted rsm the operation of ths property
are attached that Is excepted 1t is not the mortgaged
property that from the operation OF the laws
u y only the security only the rights only the interest
brances that excepted from the operation of the
law Now is very fair and very proper mode in the
construction OF statutes, to compare one part with
other of the same act and you find that the
has employed one particular mode of expression when
treating of analogous subject and another mode in an
other part OF the act the result is that there
difference Of purpose intention on the part Of the
legislature, though treating Of the same subject
ton OF your Honors to where Congress
really did intend to except from the operation OF law
not the rights in the thing the interest in the
thing but the thing itself You will find in the third
section this proviso Mr.. Clay then read the proviso
Now lift had been the intention of the legislature to
except properly from the law and simply to
the rights in the property the language this provso
would have been very different But | repeal
sir, it is not property which Is excepted it is the
interest in property Is tae ienit is the mortgage
it ia the right or interest which the woman
minor has in property The whole argument that has
NSH her I'M nj efprl he
ACT for which We contending has been ded
upon this erroneous assumption that 1t ths bankrupt
administer upon the property is destructive to the
rights Of mortgages ana lien holders But such thing
no such decision has been made No tribunal would
nave ventured to deny the obligation which it is
to respect the liens, mortgages the rights OF married
women aud infants that may exist Sir, | snail not
take up the time to the objections which my
worthy friend has made in regard to commissioners and
referees In any court Federal State there
tain commissioners and referees but believe they
not 80 great in the bankrupt court Of New Orleans
they would be in the State courts of louisiana But
pursue this subeot little further aud out
OF the consequences which would suit from the srgu