, 1873-04-17
The Dofcndnnts Counsel Exposes the
Tactics by Which tho Ends Of
Justice Have. Dccn
Delayed.


Of Illinois, to obtain an adjudication OF bank-
ruptcy against tho Knickorbocker insurance
Company Of Chicago. Ono Of thoao petitiona
wnB by Gardner p. Comstook, tho second Was by
Brny1oy Peterson, and tho third was by Allon
Il Maokey. all Of whom arc mado defendants in
or1or. A donial ot the defendants OF bankruptcy
was intorponod on tho filing Of tho several peti-
tions, and on demand Of tho dobtor d Jury trial
was ordered by tho District Court, and was had
under tho first two petitions at tho instance
Of said Allon l. Mackoy, and resulted
in verdict that tho debtor was guilty Of having
given tho unlawful preferences alleged; and at
the July torn, 1879, motion made by tho dobt-
or for now trial being donlod, tho usual adjudica-
tion was ordored, and writ Of error to obtain =
roview Of tho proceedings by tho Circuit Court
was presented. Tho Circuit Court found no
warrant In tho statute for tho prosecution OF
such d writ in the gwen caso, and therefore dis
missed the writ for want Of jurisdiction, and,
upon a like witt tho dobtor thon asked the United
proceedings In tho Circuit Court.
Tho records show that the first petition waa
filed on Jan. s. 1872. The bankrupt filed denial
Of bankruptcy Jan. 16. The first sup
P1sap'nS;9 Pana aoni Pi'Sqa April was 'a vhsn @st'1
motion Of debtor. continuance WAS had. Tho
second supplemental petition WAS hlod June 10,
and denial onterod Juno 20. Tho jury trial took
plseo tho same day, and was continued until tho
'Sa''I'e was entered juno ''' 2s and d" oxol. T.
ruled On July J., when adjudication
vas entered. On July II tho Court gave ten
was filed on tho 21st July, utter which no fur
thor entries appoar on the records Of the Court.
Tho defendant In error, In his submitted argu-
mont, moves to dismissa tho writ Of error for
error has boon sued out Iy tic defendant on tho
assumption that it is issuable in this
case as 8 common law writ; that this is
to DO trentod rs common law suit; that
the adjudication Of bankruptcy is . final
appellate courts, and that tho adjudication also
directly involves an amount sufficient to Justify
the bringing Of tho case othis (supreme) Court;
and on those points he proceeds to argue at con-
adorable length, In tho course Of which It is
stated, in regard to tho first point, that be plain
tiff in error after being found to have violated
the express prohibitions Of tho statute, requiring
the exercise Of common honesty, did not aeek
supervision Of tho case by tho Circuit Court under
tho experimenting power giyen by the act, but
wrostled against tho forms and aottled practice
pertaining to such eaBos (Which is legal way Of
saying that tho plaintiff disregarded the ordina-
~ rules and forma Of law, in ordor to de1sy the
action Of tho creditors at eVory step in tho pro-
ceodinga).
Plaintiff argues, supported by many nuthori-
ties:
Firs+1f the Bankrupt law does not expressly
give right to writ Of error in such cago aa
this, there is want Of Jurisdiction to proceed.
Sscond--The Bankrupt law forms a complete
system in itsolf it., created and regu-
lated 2 special juriselcton, in providing
aof snd Spon no na aknS Il N opdee q
adjudication only such royiow as tho statute in
dicates can DO hnd; and ample provision for d
gonoral suporintondenco by the Circuit Courts
In matters ct this sort is mado by seo. OF this
act (ot which tho two first olauBoa are givon).
Third-1t ie not to DO doubted TINT the second
section Of the Bankrupt act provides for the case
sufficiently !, not, Of course, BY allowing writ Of
orror,, but by giving the Circuit Court o flnal
superintendent, which has boon exercised in
this stago Of tho bankruptcy proceedings in
almost numberless instances, and yet tho
plaintiff in error may claim right to rely on tho
eighth section Of tho act, which provides that
appeals may bo takon to the Circuit Court in
law, and that creditors, IN tho cases Of rejected
appeals, and assigneos, dissatisfied with claims
allowed, n,ay appeal from tho District Court to
tho Circuit Court Of tho samo district Now
this the defendant says, does not holp sustain
tho writ Of error to the United States Supreme
Court.
Fourk's-C Congress- having given tho Circuit
Courts general euperintendoncy and juriedic-
! tion Of and over caaes and questions arising
| undor tho Bankrupt act, and having made
no special provision for an appeal or writ Of
error upon tho passing OF tho order Of ndjudica-
| ton, and that Buperintondenco boing indicated
writ Of error is improper and it is clear that it
| would DO repugnant to tile general policy OF tho
law to defer action under tho order Of ndjudica-
| ton, and await tho slow progross Of d writ OF
error from one court to another before acting on
Or othor proper proosss, tho circuit court would
| have examined tho proceedings touching tho
making Of the ordor Of adjudication, which oxam:
is, in termt timo or vaeation, and this was the Of
treme extent Of tho remedy Of tho plaintiff in
error. (8oe Soc. 2 Of tho Bankrupt aot.)
n FifYh-Tho fact that the trial waa In the Dis
plaintiff IN efror any better rieht to writ ef error
than II the trial had been by the Court, without
| 4 jury. Tho right Of process in reference to
proceedings In this clasB of cases is dependent
upon the statute: The question whether tue
this (supremo) Court, is d luriadlotional queH'
tion, to be solved by reference to net OF Con.
gress. But then, w1on tho plaintiff In erro,
urges that this writ should bo Issued IN this par.
sirod by the party, it is we'll to consider what
would DO the effoot Of carrying out tho Buggos.
tion, and treating tho caso as actually removable
to tho Circuit Court by writ Of error. The neo'
United States, would bo that, II the Court hai
sustained tho writ OF error md rovorsed the
judgment Of the District Court 1t would mol
hayo stopped with such royorsal, but would have
proceeded to retry tho caao arising under tho po
tition for involuntary bankruptcy, and thus :
now trial would haYo been necessary to DO had
aud would have boen had in tho Circuit Court
according to tho dooIslon Of this Cour
In Mayberry v. Thompson, 9th Howard, 1871
and what would have been tho caBo then
It would have been this: II on such now tria
the verdict lad been for tho pe.itioning creditor
and no other trial had boon ordered by tho Cir
cult Court frosh order adjudicating tho dobtol
to DO bankrupt would lavo boon mndo by tho Cir
cult Court and thon suppoaing no furthor wr
Of error to DO aekod for by tho tobtor, tho Jutg
mont Of tho Circuit court would be tho basis fol
further proceedings in bankruptcy, and tho Cir
cult Court, instead OF the District Court, ~ cou
templated by tue Act Of Congress, would DO ths
Court OF Bankruptcy; or, Ii other Words tllt
Circuit Court, instead Of exercising lts auporin
tending power over the District Court
would be the court by whioh the adju
dioation would be ordered, and II the case lac
| been brought to this Court. and trial do nott