New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-04-05


tration extend? Does It extend to a ans
pension of proceedings taken for the puT
pose OF su6jecting portions of the estate
@@Ifehdered to sale un6er state process
tne answer to this ques ton is to he feunf
In the general powers conferred upon tht
court. "POH 'Al'
Until sale is made, the bankrupt is moi
seizure. = ~'iN0
The assignee appointed before sale made
acquires the bankrupt's interest, and ht
acquires 1t for the general benefit Of tn,
creditors.
| The interest of creditors, in suit wherein
| property IS seized, is represented by the
debtor, who has a standing in court, and {
power 10 intervene at any stage of the pro
| ceedlngs OF the case. But, by bankruptcy 8
new class of rights and interests are created
ana each and every creditor has, through
the assignee, a direct claim upon the estate
To permit single creditor to follow his per
sonal claim without reference to the com.
mon interest, might work great injustice.
The debtor, by his bankruptcy, is made
incompetent to act The law strips him of
MS properly by a summary decree. and
assumes the administration of his effects,
1t is In the nature of bankrupt act to deal
potentially (for the good of a class) with
private and personal interests, and to uphold
general and just policy.
me bankrupt act of 1867 undertakes to
establish 8 uniform system of bankruptcy.
" IN ut s4"h uniformity the bankrupt could
receive but partial relief; for the insolveut
laws of a ate operate effectively only upon
creditors siding within and upon property
being within the state of the insolyentis res.
ldence. Baldwin vs.. Hale, l Wallace. d.
223. bankrupt law operating upon credit
ors wherever resident throughout the Union
must nave q perfect control over all the
property OF the bankrupt in order to fulfill
It's purposes. A creditor residing without
the state in which the bankrupt resides is
brought involuntarily into court of the
United States sitting as court of bankrupt.
cy, and decree of that court discharging
the bankrupt binds the creditor. 1t is due
then. to the creditor that the court should
collect all the assets, adjust and liuuidate
all the membranes. and dispose of and
distribute all of the effects of the bankrupt
And such are the powers given to the dis.
trict court of the United States under and
by virtue Of the bankrupt act.
In the case OF en- porte Christie 8, H. 22I
the supreme court says Prompt and
ready action, without heavy charges or ex-
penses, could be safely relied on when the
whole Jurisdiction was confined to a single
court in the collection of the assets: in the
ascertainment and liquidation of the liens
and other specific claims thereon; in ad-
Justlng the various priorities and conflict
ing interests; in marshaling the different
funds and assets; in directing the sales at
such time and in such manner as should
best subserve the interests of all concerned; /;
in preventing, by injunction or otherwise,
any particular creditor from obtaining an
unjust and inequitable preference over the
general creditors, by an improper use of his
rights and remedies in the state tribunals:
and finally, In making due distribution of
the assets, and bringing to a close, within q
reasonable time, the whole proceedings in
bankruptcy" The first section of the
bankrupt act of 1867, is but repetition
of portion of this extract from the
opinion of the supreme court; and the whole
OF it is to be found in the act. The act SAYS
that the court has the entire direction of
sales to be made, and of accounts to be rem
dered; that it has full power and authority
to compel obedience to all orders and de.
crees made By it in bankruptcy, by process
OF contempt and other remedial process, to
the same extent that the circuit courts now
have in any suit pending in equity. Such
being the origin of the law, the court must
suppose that the eXpositions of the opinion
upon which it is based have been recognized
as correct.
The estate of the mortgage at common
law, is fee simple estate. A tender after the
law day does not discharge mortgage; re-
conveyance is necessary. The mortgagee
can not be required to do anything in equity,
other than submit to redemption. This right
OF redemption is, in equity, inherent in a
mortgage. "Once a mortgage always a mort
gage.' But no such qualities attach to
or are inherent in. mortgage in Louisi-
ana. Here the mortgage is not entitled to
possession; cani not claim profit until after
seizure, and instead of foreclosure can only
sell. After insolvency in Louisiana the
syndic sells, and all that the mortgagee can
ask for is that the sale may be sale for
cash. The bankrupt act does not, therefore
in Louisiana, impair any of those vested
rights which in England and America have
constitutional protection. 1t is not i'm
portant in these cases to consider how far
in other states vested rights are under the
dominion of bankrupt law; it is sufficient
to know that in Louisiana a sale of the land
is all that the mortgage bargains for; and
such sale is secured by the bankrupt act as
fully as by the laws of the state. The bank.
rupt act places in the court a discretion to
hx the time and place of sale; and precisely
this discretion exists in the insolvent sys-
tenn Of Louisiana. 1t has never been
unconstitutional congress may confer it.
The same power is conferred upon the
bankrupt courts of France to be exerted
after Tine UUnCUrdat is settled among the
creditors, and syndic is appointed: and
the same power is conferred upon the bank
rupt court of England, to be exerted in all
cases of liens, except those that convey a
right in the land itself-a jus in re.
The people of the thirteen original states,
when they created the present general gov.
ernment, gave to congress the power to
establish uniform laws on the subject of
bankruptcies throughout the United States;
and when congress put in execution that
power, all the state insolvent laws became
necessarily silent, and the property of the
bankrupt, even to the shadow OF an interest
In any estate whatsoever, was thereby sub
iected to the dominion of the courts of the
United States.
Orders will, therefore, be made and issued
In conformity with The prayers Of the petit
TONERS. E. H. DURELL,
-.-..... Judge.
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