The New York herald., 1870-06-10
T H E COU R T S.
Tho clarkBiningsr tigation-Important De-
eisiou-Ths Swiss Extradition Case-sen-
tencss ct General Sessions
UNITED STATES CIRCUIT cuusY-M BANKRUPTCY.

UNITED STATES CIRCUIT cuvsr-M BANKRUPTCY.
The Clark. Bininser Imbroslio-what Conssi-
sutes ap Acs Of Bankrupscy-Decree Ar.
Before Judge woodrun.
IN re clark rs Btnfnger. This long Ntgated do.
mestic imbroglio has at last passed through one
phase Of its course to ultimate conclusion. On the
appeal from Judge Blarchford's decision Judge
Woodruff goes over the whole ground Of controversy
and Of the legal points involved, finally arming the
decree granted by Judge Blatchford.
Judge Woodruff, In his decision epitomized below,
says:-The above named bankrup.s composed the
firm OF Bininger b Company. who for many years
carried on business In this city as merchants ana
traders.
On the petition Of Milton J. Hardy and others,
creditors OF the hrm they were, on the 22d day OF
December, 1859, decreed bankrupts, and the re-
spondent Clark has brought into this court for re-
view the proceedings had In the District Court upon
that petition and the decree pronounced thereon.
The petition, as originally ncd alleged as acts OF
bankruptcy that the respondents had frauduIenty
stopped, and had not resumed payment Of their
THAT thew on the Isih Of November. 1899 did in
substance effect transfer OF all their partnership
property 10 one Daniel Il. Hanranan, under coior OF
ceiver OF the property OF the hrm procured by the
respondent Clark, in proceeding instituted III the
respondent BIningar, and was suffered by the said
Binlnger with intent to hinder and delay the cred
tors OF the nrn.
The respondent Clark alone appeared and an
swered to this petition, and by his answer lie denied
that he OF his said firm had computed an act OF
bankruptcy set forth In tle said petition or other
wise, and demanded trial by jury. He alleged In
his answer that neither he nor his said firm are IN.
solvent but are on the contrary, fully able to pay all
their just debts and labftles and have large sur
plus: and he admits that on the 10Th OF November,
isos he commenced an action In the aforesaid court
luton, an accounting and for the appointment or
receiver that such court did appoint The receiver.
zion Of the property of the firm In this city, and was
IN possession when the petition OF The creditors was
fled. Ana he further alleged that such petition was
hed by colusion between his copartner Bining er
and their creditors.
On the trial. and upon the examination OF the said
Clark his own behalf, the pettloning creditors
obtained leave 10 add further allegations 10 their
petition, by way Of amendment. TO the granting OF
such leave the respondent objected and excepted.
TO the allegations thus added TO the petition the
respondent Clark answered by denial, and the
said Bininger thereupon appeared in form by his
solicitor but made no answer to the petition. The
riai then proceeded and AZ the close OF the testi
mony the Judge charged the jury IN effect that the
peiitoning creditors were entitled to q verdict,
finding that the respondents, being insolvent, did,
on the lstn day Of November 1899, suffer their pro-
et BY 0e such dspoaoY Y Of S bropery 10
defeat the operation OF the said act OF Congress.
!. In my Judgment there was no error In per-
hitting an amendment OF the petition. II belongs
TO courts OF justice as the general rule 10 permit
amendment OF proceedings before them when they
have obtained jurisdiction OF the person and Of the
subject matter and It would be strange the district
court IN the administration OF the bankrupt law
sho1ld be held incompetent TO allow such amend
ments. Here the appellant answered the amended
petition and The issue thereby created was tried and
determined.
a trader, concur In The views expressed by The
District Judge on the trial. aud they have singular
aptncss to the present case The alleged bankrupts
owed very large sum OF money They bad been
struggling tor months III q condition Of great en-
barrassment 30 raise money FOR the payment Of their
obligations as they mattred. They used means Or
dinary and extraordinary until even such means
failed to procure them funds, submitting TO the sales
OF their paper at an enormous discount that
purpose Ii Was clear thai ii they had been able to
money by continuing to enlarge their liabilities
IN the 1uture at such rate IN order to meet their
payments tie loss would absorb their entire estate.
Their real estate In this CITY was encountered They
had real estate Virginia which they had been long
some available form, but without success, and at
length they stopped payment for the want OF funds
wherewlth to pay. This. In my Judgment consii-
tued insolvency within the meaning OF that term,
as used in the Bankrupt law.
8. The remaining question is whether the firm
being insolven 1t was an act OF Bankruptcy TO ap.
ply 10 the State court to procure the appointment OF
receiver and al order Tor The delivery OF the pro-
perty OI the firm to him, and thereby prevent the
operation OF the Bankrupt law upon tile property
and the administration thereof. concur with
Judge Blatchord that the term legal process as used
in the Bank upt law Is not TO be confined To any par
ucular form OF writ, execution attachment or act.
The design and purpose Of the Bankrupt law IL that
creditors In the very mode pointed out thereby, with
all the facilities for Its appropriation, all the security
Tor us administration, al the salegaards against
false claims, fictitious debts and illegal or
inequitabe preferences, which that act pro.
vdes, and In the summary manner fn which the
proceedings may be conducted 1t IL not therefore,
for the Debtors for the debtors and some of the
creditors, to say we can devise better safer,
| more economical mode OF reaching the same fna
result II t were true, 1t would De only saying that
| we will resort an expedient to defeat the Bank
law
our plan Is wiser and better than that which Con
gress has seen lit to prescribe. have only to add
that the motive OF petitioners III prosecuting tht
petition, or the cooperation OF the copartner Bin
niger or his motive therefor, can have possible
effect IN determining the quality Of the acts alleged
to be acts Of bankruptcy, or the legal consequence
| OF such acts.
The rejection Of evidence tending to show collu.
between BIninger and the pettOnlng creditor
was not erroneous. However fully established the
decree must have followed as the right Of the ere
dltOrs. II the design was TO show purpose u
administer the bankrupts estate so as to defraut
Clark, his copartner that design appertains to tnt
future, the means % are abundant , 70 protect him
are competent IN adequacy and power to see that in
execution Of the law fu justice and protection are
awarded to all who are Interested.
The decree must be affirmed.
Decisions in Bankruptcy.
Before Judge Bhtchford.
Robert J. hubbard and Andre,o j. Herf,iOn a.
| Asstgisees In Bankruptcy OF The Ne,c York Maj
| Steamship Company rs. the Audtre WorEs.-This il
bill In equity, praying that Judgment rendered IL
favor Of the defendants against the bankrupts ant
| all proceedings hereunder, including an execution
| and issued thereon, and sale of property OF tn,
bankrupts on such execution, may be decreed TO bt
null and VOID; and that the defendants may be re
qnred to account for and pay over to the paintf.
such sums Of money as they have received by virtue
| OF the Judgment and the proceedings hereunder
| The defendants had claim againrs the bankrupis
amounting TO s4,65l A, with interest from october
lS, 1861 On October 2s, 1857, defendants commenced
n Ia nat tl,a hau IL
| rupts. The bankrupts consented that judgment
should be entered for the defendants which ac
cepted The plea in bar Of the bill that the
uon which followed and the levy made by the Sherif
| were made four months before the proceedings In
bankruptcy, and the Court decides that the pes
must be allowed, and bin be dismissed with costs.