The New York herald., 1868-03-15

give TO one Lewis Van Dcren one OF his creditors,
on the nth day Of August, 1857 confession OF
be entered thereon for the sum Of S5is II. and on
said day an execution thereon to the Sheriff; that
these confessions OF Judgment were given by
Craft TO the creditors named with intent to give
them preference and delay the operation OF the
Bankrupt act; that the Sheriff has, under the execu
TO satisfy the executions in favor Of Jones and Van
Doren, and that the proceeds OF the sale OF the
property amounting TO over the sum OF s., 100 has
ofen @ Judgment "a against ca On the
return OF the order to show cause on
bankruptcy set forth and demanded trial by the
court. Thereupon the court, under section thirty.
eight OF TINS act referred the case to United States
Commissioner 70 take testimony offered either by
creditors or debtor upon the issues raised by the
petition and denial The Commissioner has Ia
mony MOI IS full to s. show wv that % crayt was legally
insolvent when he confessed the Jones jadg-
ment. and that after the sale Of his property
under the Jones execution he had no property
whatever with which TO pay his debts. The con-
fession OF the Jones Judgment was made BY Craft
long standing and frequent demands having been
made for payment Of 1t, and legal proceedings on Il
being threatened by Jones, and he also threatening
TO foreclose chattel mortgage which he held
70 confess the Judgment did not emanate
from Craft, but from Jones. Nothing was said
between the parties about bankruptcy. Graft did
not contemplate bankruptcy, and did not know there
was such law as the Bankrupt law The debt to
Jones was In all respects bona nde and fully due.
Craft could have prevented the taking OF his property
on legal process by going into voluntary bank
ruptcy, and, being insolvent, 1t was his duty 10
have done so, but he allowed his property to be
taken by legal process. The result OF this was
TO give preference TO Jones. The presumption of
that law is that Craft intended to effect this result
II Is for him TO rebut that presumption. he
has not done so. On the contrary. all the
going very fully through the facts and law OF the
matter, Judge Blatchiord says the petition does
not aver that Craft Is or was insolvent, or con-
IN
he did the acts alleged "in contemplation Of
bankruptcy" Those words, as used In the Bank
ruptcy act O.! ls4l were defined by the Supreme
Court In Buckingham Vs. Mclean, Us. Howard. 1880
1917 TO mean, IN contemplation OF committing what
was made by the act an act OF bankruptcy or OF vol
unfairly applying 10 be decreed a bankrupt.
think they have the same meaning as usual In the
sense Craft did not commit this act OF suiierance
in contemplation OF bankruptcy II will not do to
say that the act OF making transfer OF property to
be taken on legal process, with the intent named, Is
otherwise shown to be bankrupt or insolvent
or TO be contemplating bankruptcy or insolvency,
on the idea that the act becomes, tpSO
[acto one in contemplation Of bankruptcy bankruptcy
and thus being bankruptcy, the doing of 1t must
have been in contemplation Of bankruptcy. This Is
reasoning IN circle, and such view would not re-
qutre that the debtor should even be nsovent or con-
template insolvency and would virtually strike those
words out OF the section; for II 1t were shown that
the debtor had done the act named with the intent
named the fact that he had done 1t IN contempla-
ton OF bankruptcy would follow as an Inevitable
legal conclusion, and insolvency or the contemplation
OF IL would never become an operation prerequisite.
In conclusion Judge Blatchford holds that an amend
ment OF the petition Is proper To prevent failure OF
justice. The decision on the petition and denial is
therefore suspended to allow the amendment.
Messrs. Benedict and Boardman for the creditors.
Mr. Edwin James for the debtor.