The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-04

committed the act ofybsnkruptcy of suspending m
maud OF the law-they had but one thing to DO
and thar was to come into this court &c bankrupts
and pass over their assets for the benefit of al
their creditors. Milton says: They also serve
who only stand and waltz" and it is equally true
that they also ciotate, who only stand and wait
suspension, of itself, lie but Inactivity aud hav.
ing 1t In their power to have put into the hands OF
their creditors every dollar of these earnings,
stop me pay OF these officers, to continue it from
the mist OF January down to the time when this
| petition was fled say that in the eye of the
payment.
do not mean by that that there was any actu.
ally wrongful purpose 10 the minds of these di.
rectors-not at all-but mean that the baakrup
law having said to them :" If you are insolvent,
and you suspend the payment of your paper, and
DO not resume 1t for fourteen days. that Is an act
Of bankruptcy." That if they icere irsolvent,
1ney nad the intent not to conform to the law.
That is all the fraud the law means. As read the
bankrupt law, person who is insoIvent, and who.
upon the petition of his creditors Is proved to be
lnsovent. any insction with funds in the debtors
hands, and his notes overdue. any action by way
OF paying one creditor and not Others is an act of
bankruptcy. Mr. James says in his notes that this
ID very strange provision about fraudulent sus-
pension. So 1t is but be it strange or be Il com.
mon, there 1t is, and when taken in connection
with the provision prohibiting preference and
payment-because payment on the part of an
insolvent is preference-there leaves but one
thing for him to do, namely to come into bank.
ruptcy, and that Judge Blstchford says, in effect.
Then say they t,'audedeatly suspended. tIa
We come then 10 the second act of bank
ruptcy charged in the petition and that is. the
payment OF these $4,000 Of coupons some time
In February last. IL is said that suit had been
commenced on one or all of these coupons. We
do not deny it. Ii is said that after suit was
commenced note or notes were given and thew
were paid and that that is not q preferences.
because you sued u.s." Then IL you sue me
and see you are going to get your judgment,
and pay you, that is not q preference. Well,
now, If the court please, it is preference. |
know there are authorities, and there are
great many authorities to that effect-under
some bankrupt laws. But IL is not the case
under our bankrupt law-under the law which
we are now considering because down to the
last instant before the execution is levied. be-
tore tie levying officer has placed lien upon
the property. the debtor has one way OF avoid
ing q preference-to come into court and pre-.
sent his voluntary petition. Now, if the view
OF the law which they contend for be correct,
whatis the utility Of the bankruptcies? The Law de.
clares its object. 1t is to secure an exactly equal
and rateable distribution Of the property of the
debtor; but If, by virtue Of being sued. he may
go on and pay one after another Of hts creditors
cision that she bankrupt law was designed to pre-
vent all race of diligence between creditors-if
their view be true then it must follow that he NAV
go on paying as fast as he is sued, creditor after
number OF his creditors being paid, his property
Is exhausted. What sort of application of the
bankrupt law is that, the law declaring that its
OBJECT Is, the moment it goes into execution, to
secure 10 these creditors an equal and rateable
distribution of this property, which can be de.
feated merely by bringing suit against the
debtor! No; they had a choice; thew could
have come in here into bankruptcy, and let
this creditor, who was suing, follow them here.
But because they did not-because thew paid |
0y virtue of that thav al
Df bankruptcy. The more we look at it the clearer
and more certainly correct will be that view Be. |
cause wish to impress upon your honor that IL |
he contrary is true-if when am sued and in |
when be sues me, creditor number two when he |
'ues, and 30 on, and IL creditor number three ex. |
lausts all my property-that that would be the
best way Of avoiding the force Of the bankrupt
aw 10 the world. The bankrupt law was too wise
q It's provisions to admit of such q construction.
I says: " II they shall prefer a creditor ;n-pre.
er, or do what ?-if he shall prefer instead of
coming into the court of bankruptcy; and as long
IS there was that option left to these respondents,
md they pad they preferred.
Then say that the third act of bankruptcy was
hat committed in the presence OF your honor. 10
ne presence OF US all, and in the face of this COM
nunity.
was little annoyed, perhaps, because did
lot understand exactly What the gentleman said
mt there seemed to be view that this third act
4 bankruptcy was not before this court. but il
he court examines the record, you will find that
" express agreement, and in order to avoid the
Veariness and trouble of second struggle, most
wisely the counsel for the defendant said 1--WE
will go to trial on that issue now, and try the
Whole together" Now, what is that allegation |
hat, with the intent to defeat aud delay the oper.
tion OF the bankrupt act, and with intent to pre-
er certain creditors. they transferred certain
property. to-wit $500 to these creditors. Did
hey transfer that property? No doubt about
hat. But did they do il with the intent TO prefer
hose creditors! Why, they didn't attempt to pay
nybody else. Then they did do with the intent
0 prefer. They transferred it went into the Gus.
ody of the clerk, and we could have taken it in
ne OF those days; and it Is now in Mr.. Cohen's
ocket. merely as the custodian of the court, not
his money, Will the gentleman make legal
ender, and then put the money in his pocket as
Is own! That money Is in the hands of the |
curt, and in the eyes Of the law stays with the
curt. Because the party refuses the tender, that |
oes not revest the money in the party rendering
merely holds 1t as the custodian OF the court |
nd they just as truly transferred il, VIXEN il was
his pocket as If II had staid In his pocket asfif
had staid In the bank. And say they did 1t with
he intent to prefer these two creditors; and say
so they did 1t with the intent to defeat and delay
le operation of the bankrupt act.
What else did they do, Here was a petition |
led. the prayer of which was that they should be
Judged bankrupts; and to defeat that petition
hich is nothing but defeating the operation of
e bankrupt act itself-they come 10 and make
~ tcuucf! lneu tnere was an act OF bank. |
lptcy, they being insolvent, committed in the
resence Of your honor, and is part of the
cords of this very case.
pass now to consider, in the fourth place the
oJections they have urged to the standing of the
etitioners before the court. They say, If il be
ne, that the bankrupt law includes this corpo- |
tion-f II be true that they were and have been ,
solvent-if it be true that they have committed
It's of bankruptcy-the acts of bankruptcy al
ged in the petition and amended petition-still,
le pettioniDg creditors in this case, Mr.. Tucker
I'd MIR. Conand, cannot stand before this coart to
lege these facts. !
Now. the first objection they urge is that this !
,bt is not provable. Their reason is that this !
upon carried with il the privilege of q mort
age, but the very fling of this petition and !
aiming this whole debt, swearing that it is prov
Die Is a complete renunciation OF this privilege
is charge, for 1t IL that rather than privilege.
ut In addition to that here is q formal release
ed and made part of the record. The obec- .
On which supposed they would urge to the re-
ase, either implied or expressed, is that there is I
, assignee. But there Is q general assignee. II
e debtors are bankrupts the release operates
aIRs 1Ss esBsgTRs 10 tS. tbswssIyss Ss,
'mpetent for these petitioners by deed poll,
bouncing to whomever it might concern, to '
I'VE extiDgushed effectually and forever this 8
viege or charge. By the affidavit that the | ,
bt is "provable " they have renounced. The | q
,glish authorities on this point are conclusive.
( parte Spotteswood. Font; Elk parte Soloman
Glyn. and l., page &c.