In Bankruptcy. In the Matter of Reed, a Bankrupt.

derstand it, unconditional, certain and set-advantage of the creditor; for they are as tled. Now, I am unable to see why the goods gaged or distrained, which cannot be lien is not conditional and contingent as forfeited by outlawry, or taken in execu. well after judgment as before. The judg- tion from the party who has them in gage, ment, it is true, ascertains the debt, but the or by way of distress, without payment of judgment is only one step in the proceed- the money; for the goods are bound by the ings. The lien is still dependent for ulti- teste of the writ of extent or execution mate effect on another and further condi- sued. tion. The execution must be taken out Now, is not most of what is said in the and levied upon the property, if personal case just cited applicable to an attachment? estate, within thirty days, and if real estate, By the extent upon a statute staple, the within five calendar months after judgment; goods are seised into the hands of the king, and unless it is so levied the attachment is or, in other words, taken into the custody dissolved. It can make no difference, of the law, and remain in that state until therefore, that judgment has been recover- there is another award of the court, viz.: ed, if the execution is not levied before the a liberate, which is a conditional writ, orfiling of the petition in bankruptcy; for in dering the sheriff to cause the goods to be such case, the execution upon the judg- appraised, and to deliver them to the crediment may be set aside, when the certificate tor, if he will accept them on the valuaof discharge is granted, on the application tion, which he may do or not at his elecof the bankrupt or the assignee, unless the tion. The extent has no more absolute attachment, of itself, irrespective of the operation than an attachment, and each is judgment, is held to be a lien which is dependent for final effect on after proceedsaved and protected by the act. If the at-ings. Under both, the goods seised are a tachment be not such a lien, then nothing pledge or security for the debt, equally short of a levy of the execution on the perfect and valid in the first instance, and property attached, before the filing of the the after proceedings have relation to the petition in bankrupcy, would give the credi- first seizure so as to overreach and avoid all tor any absolute or valid right; and the intermediate claims by others under the result would be, that the attachment is of debtor. no efficacy whatever, since a levy of execution without a previous attachment would be just as beneficial to the creditor as a levy with.

But all the reasoning founded on the assumed conditional contingent nature of the lien by attachment, as well as upon the property being merely in the custody of the law, is fully answered, as it appears to me, by the observations of the court in the case of Audley v. Halsey, Cro. Car. 148. In that case it was held, that goods taken upon an extent sued out upon a statute staple, before the bankruptcy of the debtor, though the goods are not delivered to the creditor by the sheriff upon a liberate until after the bankruptcy, may be held by the creditor against the commissioners under the bankruptcy. The court said, that the goods, being extended, are quasi in custodia legis, so as the debtor has not any power to give, sell, or dispose of them; and although by the extent the creditor has no absolute interest or property in them until the delivery by the liberate on appraisement, and at the return of the writ may refuse them for being overvalued, yet that is for the

It has been observed by a learned judge, by way of apology for the absence of English authorities on the subject, that since the statute 21, Jac. 1. c. 19, the question as to the effect of an attachment could not arise in England. That is true, because it was provided by that statute, and so continued until a very recent and very material modification of the enactment, that creditors having their debts secured by judgment, statute, or recognizance, or having made an attachment according to the custom of London, where no execution or extent is served or executed before the debtor became bankrupt, shall not be relieved for more than a ratable part of their just debt. But how did the law stand before that statute? That is a material inquiry. It has been supposed that there is no authority to answer this inquiry; but that seems to be a mistake, In the case of Audley v. Halsey, already cited, the court referred to the provision in the statute 21 Jac. 1, and said that the provision proved, that after the bankrupt act of the 13 Eliz. c. 7, until the statute of James, the commissioners in bankruptcy had no

In Bankruptcy.-In the Matter of Reed, a Bankrupt.

tween a suit in rem and a suit in personam. Taking the provision by itself, and giving it a literal effect, there could be no remedy even upon a mortgage; for, if the debt, which is the principal, is extinguished or discharged, all remedy upon the mortgage, which is the incident, is discharged and gone also. But we are to look to all parts of the act, and give it such a construction as the whole taken together appears to require. On recurring to other clauses, we find it provided, not only that the certificate of discharge shall not annul, destroy, or impair any lien, mortgage, or other security on property, but that it shall not extend to trust or fiduciary debts, or release or discharge any partner, joint-contractor, endorser, or surety, liable for the same debt.Thus, in these several particulars, the provision prescribing the general effect of the certificate of discharge is necessarily qualified and restrained by other distinct saving provisions of the act. It is admitted by all, as it must be, that the provision is so far qualified and restrained, that a judgment in an action in rem upon a mortgage, or in an action in personam upon a trust or fiduciary debt, though both debts are provable under the act, may be recovered notwithstanding the discharge and certificate; and why may

power to meddle with goods taken upon a foreign attachment; yet, added the court, the goods are but as a pledge to draw the party to answer, and if he appear, the foreign attachment is discharged. What was this but saying, that independent of the provision of the statute of James, the right acquired by a creditor under a foreign attachment, though conditional and contingent in the fullest sense, would remain valid and effectual notwithstanding the bankruptcy of the defendant. Now, it is worthy of special notice, that our bankrupt act is not only without any such provision as that of the statute of 21 Jac. 1, but expressly and positively saves and preserves all liens, mortgages, and other securities on property, real or personal, which are valid by the laws of the respective states. But it is said that where the bankruptcy of the debtor intervenes after an attachment, and while the suit is pending, followed up by a certificate of discharge, no judgment can be recovered in the suit so as to give effect to the lien; because the act makes the certificate of discharge a discharge of the debt. This, in my opinion, to use a scholastic phrase, is begging the question. Whether the certificate is a bar to a recovery of judgment, depends upon the decision of a previous question, whether the attach- it not be so in the case of a lien by attachment is a lien or security valid by the laws of the State, and so within the saving provision of the act? If it be such a lien or security, then by the very words of the provision, the certificate of discharge cannot in any way annul, destroy, or impair it. It is excepted from the operation of the certificate, like a mortgage or any other lien or security which is saved; and a judgment, or whatever else may be necessary to give effect to the lien may be had of course.

ment? The form of the proceeding, whether in rem or in personam, is immaterial; the substance is the thing to be regarded. If the whole object and operation of the judgment is merely to enforce the lien, and give the creditor the benefit of the property attached, and nothing more, the proceeding, though in form in personam, is in substance and effect a proceeding in rem.

But it is unnecessary to pursue the subject further; for the whole matter, after all The act declares in general terms, that that may be said, lies within very narrow the discharge and certificate shall "be deem-limits, and may be summed up in a very few ed a full and complete discharge of all debts, contracts, and other engagements of the bankrupt, which are provable under the act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever." It is to be observed, that the act makes the certificate of discharge, not a discharge of the person of the bankrupt merely, but a discharge of the debt itself, and declare's that it may be pleaded as a full and complete bar to all suits whatever. Upon the words of the act, there is no foundation for a distinction be

words. If an attachment is a lien valid by the laws of the state, and so excepted out of the bankrupt act, the act has no operation upon it. Existing under and by virtue of the state laws, and being unaffected by the bankrupt law, it must have such validity and effect as the state laws give it; and the proceedings in the suit must necessarily be the same, quoad hoc, as though no bankruptcy had occurred or no bankrupt law was in existence. On the other hand, if the attachment be not a lien within the saving clause of the act, then the decree of bank,

In Bankruptcy.-In the Matter of Reed, a Bankrupt.

ruptcy, ipso facto, avoids it in all cases whatever, including cases both of tort and contract where the claim is not provable under the act as well as where it is; and the property attached, by force and from the time of the decree, before a certificate of discharge is or can be obtained, passes, freed from the attachment, with the other property of the bankrupt, to and vests in the assignee. We are inevitably driven to one or the other of these conclusions; for there is no middle ground that can be taken and sustained, in my opinion, by any sound argument or just legal reasoning. The latter conclusion, I am quite sure, will never be adopted or held as the established law.

that property may be sold on execution.— Indeed, the property in this case being of such a description that it could not be kept without expense, the creditors might, under another provision of the state law, have compelled a sale of the property before judgment, against the will of the bankrupt. At any rate, as the sale was a regular, le. gally authorized proceeding, giving the creditors no undue advantage, or any greater right than they already possessed, and was beneficial to all parties, working no injury to any one, it is difficult to see how the bankrupt's consent to it can on any principle, any more than his confessions of judgment, affect his right to a discharge.

Considering, then, the attachment as As to the quitclaim to the attaching credvalid and effectual to hold the property at- itors of all the real estate attached, it aptached, the only question is, there being no pears, as we have before seen, that the collusion between the bankrupt and the at- interest of the bankrupt in the estate contaching creditors, is the case in any way sisted of an equity of redemption worth at effected by the consent of the bankrupt to the most only $186. It may be very questhe sale of the personal property before tionable whether, the estate being incumjudgment, his quitclaim of his interest in bered to so large an amount, approaching the real estate, or his confessions of judg- so very near to its actual value, the equity ment in the suits? In England, as proper- of redemption could have been sold for anyty cannot be taken before judgment, and an thing at all. But however that may be, execution is the first process by which it the creditors by their attachments, had secan be seized, the giving a warrant of attor-cured to themselves all the right and interney without presure to a creditor, with est the bankrupt had in the estate; and if power to issue immediate execution, if done in contemplation of bankruptcy, is held to be a fraudulent preference on the part of the debtor. Here a voluntary confession of judgment, under similar circumstances, with out an adverse antecedent attachment, would undoubtedly have the same effect. But as property, here, may be taken by attachment before judgment, where it is so taken, as it was in this case, I think the principle does not apply.

And certainly, the voluntary consent to the sale of property attached, before judgment, ought not to be viewed in a more unfavorable light, than the voluntary confession of judgment with the right to take the property attached immediately in execution. The property in the present case being bound by the attachments, it cannot be of any importance whether it was sold under the attachments before judgment, or on execution after the judgments were obtained. By the law of this state, goods and chattels attached on mesne process may be sold by the attaching officer, with the consent in writing of the debtor and the attaching creditors, before judgment, in the same manner

he had not quitclaimed his interest to them, they might have gone on and set it off upon execution. The quitclaim was given on application of the creditors, probably with a view of saving costs and expense; and by it the interest in the estate was transferred to them in the form of conveyances, instead of being transferred, as it would or might have been, by levy and appraisement on writs of execution. The creditors obtained nothing more than what they had a right to under their attachments; and what they obtained the bankrupt could not have deprived them of if he had been disposed to do so. I see nothing in this transaction, any more than in that of giving consent to the sale of the personal property, that amounts to a fraudulent preference on the part of the bankrupt; and the result of the whole is, that none of the objections being sustained, they must be overruled, and a discharge granted.

Principles of Equity.-New Work.

PRINCIPLES OF EQUITY.*

MISTAKE.

the partners which is the foundation of an ordinary partnership is not essential to the is recommended to the student to master management of a joint stock company. It the subject of partnership as perfectly as possible, especially to mark the interest which each partner possesses in the stock, and the peculiar operation of the statute of limitations on different sorts of account.

ALTHOUGH equity will relieve against a plain mistake or against ignorance of title, it will not interpose if the fact were from its nature doubtful, or at the time of the agreement equally unknown to both parties. This relief does not extend to supplying any circumstance for the want of which the instrument is void, as, for instance, where the SPECIFIC PERFORMANCE OF AGREEMENT. necessary stamp is wanting. Equity will THE maxim, 66 supply defects in the execution of powers, done which is agreed to be done," is the looks on that as Equity but not the nonexecution, unless the power groundwork of this branch of equity. For were coupled with a trust. Mistakes in the whilst at law (with some exceptions) damexecution of powers by will have been ages and not the thing itself are recovered, remedied by a peculiar construction. Hence in equity a decree may be made that the the doctrine of cypres, which applies only plaintiff have a specific performance of the to real estate. For instance, under a power agreement, and generally the costs of the to appoint to children an appointment by a suit. The student will observe of what will to a child for life, remainder to her agreements a specific performances will or children is not valid the excess (the re- will not be decreed, with the reason in each mainder to the children) is void; but the case; the student should always endeavor court will appoint it cypres, i. e., as near to understand the reason of a thing, for then as possible to the intention of the giver there is a greater chance of its being rememof the power, and consider the child as bered. Those agreements will be decreed taking an estate tail. Under this head the to be performed which are, according to the student will meet with the maxim, Ignoran- forms prescribed by law, made between tia facti excusat, ignorantia juris non excu- parties capable of contracting, and of which sat. If this maxim be retained, the student the terms are certain and equal. Part perwill probably remember the reasons govern-formance of some parol agreements will be ing the authorities decided upon it. sufficient to obtain a specific performance.

ACCOUNT.

THE jurisdiction of equity over matters of account arose from the action of account at law not affording a complete remedy. Mutual demands, and the existence of several items to be investigated, are generally essential to sustain a bill for an account. The following transactions may be the subject of equitable account: Dealings between tradesmen and customers, complicated transactions between landlord and tenant, factors and agents. If an heir state an impediment to his recovery at law, he may obtain an account, but not as mere heir; in partnership dealings, a partner will not be allowed an account unless the partnership be dissolved, or he pray for a dissolution, otherwise a bill might be filed annually for an account. An exception to this rule exists in the case of joint stock companies, for the mutual confidence between

NEW WORK.

POPULAR LECTURES ON SCIENCE AND Art, delivered in the principal cities and towns of the United States. By Dionysius Lardner, Doctor of Civil Law, Fellow of the Royal Societies of London and Endinburgh-of the Royal Irish Academy, Member of the principal European Societies for the advancement of Science, and formerly Professor of Astronomy and Natural Philosophy in the University of London. New York: Greeley & McElrath, Tribune Buildings, (opposite the City Hall,) 1845.

ble lectures are at length published, and at WE are pleased to find that these valuaan expense that puts them within the reach of all classes. There has not been, of late, any work of this kind published which can for a moment be compared to these lectures-they are not less to be admired for their easy familiar style, than for the absense of any scholastic pedantry-for ourselves we can say, that, although we heard most of them delivered, we have read them with mingled feelings of pleasure and instruction. We doubt not but their sale will fully compensate the enterprising publishers.

THE

New York Vegal Observer.

VOL. III.]

NEW YORK, JULY, 1845.

[MONTHLY PART.

of the survivorship, and he, at the same

PRESUMPTION OF SURVIVORSHIP. time, avoided the confusion into which tho

DECISIONS OF THE ENGLISH COURTS OF

LAW AND EQUITY.

HAVING in an antecedent paper on this subject stated the effect of the decisions in the English Ecclesiastical Courts, we proceed now to the Temporal.

ecclesiastical judges had betrayed themselves, as above pointed out, by saying, he did not see what presumption was to be raised.

regard to that evidence, I am of opinion that the master was right in coming to the conclusion that James survived his brother."

The remaining authority is a case of Sillick v. Booth, recently decided by Vice Chancellor KNIGHT BRUCE. Two brothers were lost in the same vessel on their voyThe first case that of Mason v. Mason, age from Demerara, the one aged twenty1 Mer. 308, which was heard by Sir Wil-nine, the other twenty. His honor said: liam Grant, is remarkably similar to those "I think the court need not necessarily of Goods of Selwyn and Wright v. Nether- presume that they both died at the same wood. A father made a will bequeathing time, but that evidence may be admitted to property to all his children "who should shew which of them died first. From the be living at his death." The father and evidence before the master, it appears, that one of his sons perished together by ship-James was an older, more robust, and exwreck, and the question of course was, perienced mariner than Charles, and having whether the son was "living at his father's death." Sir William Grant (after observing that he thought the stress of argument in General Stanwix's case was in favor of the father's representatives, because there were two chances in their favor, namely, of the father surviving, and of both father and daughter dying at the same time, and only one against them, namely, of the daughter surviving,) addressing himself to the counsel for the plaintiff, who were the representatives of the deceased son, said: "In the present case, I do not see what presumption is to be raised; and since it is impossible you should demonstrate, I think that if it were sent to an issue you must fail for want of proof." However, the plaintiff's counsel still pressing for an issue, an issue was accordingly directed by his honoz, the result of which has not transpired.

The relative ages of the father and son do not appear in the report of the above case, nor does the proportion of their respective bodily powers. The grand principle pervading the decisions in the ecclesiastical courts, was here applied by Sir William Grant; that learned judge most clearly intimating, that it would be for the plaintiff's, the representatives of the party, who never had any interest in the property in dispute unless he was the survivor, to prove the fact

It seems to have been, in this case, really unnecessary to determine the question; the property in litigation had been bequeathed to the two brothers, and their sister, and a grandchild of the testator, with benefit of survivorship among them, as expressed in the will, and the court decided, upon the construction of the clause of accruer, that the sister was entitled to the whole as last survivor: the Vice Chancellor, however, delivered judgment upon both questions; a circumstance which is, perhaps, to be regretted. His honor seemed justly repugnant to adopting the unreasonable supposition, that both brothers died at the same moment; he, however, omitted to take notice of the principle mainly established by the cases in the ecclesiastical courts, and corroborated by the great authority of Sir William Grant, and which had, in fact, been long ago approvingly suggested by Lord Hardwicke, in Hitchcock v. Beardsley, West. Ca. Temp. Hardw. 445, of throwing the onus of proof on the representatives of the party to whom the debateable property did not originally belong. Now, though the decisions in the ecclesiastical courts were certainly not binding on Sir K. Bruce, yet