the custody of their officers. On the contrary, it provides that "all suits in law and equity then pending, in which such bankrupt is a party, may be prosecuted and defended by such assignee to its final conclusion, in the same way and with the same effect as they might have been by such bankrupt.”

Instead of drawing the decision of the case 626*] into the District *Court, the act sends the assignee in bankruptcy to the State court where the suit is pending, and admits its power to decide the cause. It confers no authority on the District Court to restrain proceedings therein by injunction or any other process, much less to take property out of its cusAn tody or possession with a strong hand. attempt to enforce the decree set forth in the rejoinder would probably have been met with resistance, and resulted in a collision of jurisdictions much to be deprecated.

In fine, we can find no precedent for the proceeding set forth in this plea, and no grant of power to make such decree or to execute it, either in direct terms or by necessary implication, from any provisions of the Bankrupt Act; and we are not at liberty to interpolate it on any supposed grounds of policy or expediency. The plea cannot, therefore, be sustained, and the judgment of the Superior Court of New Hampshire must be affirmed.

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The decision of this court in the preceding case of Peck v. Jenness affirmed.


that the right which the defendant below acquired by his attachment, legal when made, can be taken from him by subsequent legislation. Every objection, however, can be made in this case, which can be taken in relation to any attachment. The debt is discharged here, to the same extent as any other debt. As to the objections, that the statute requisites have not been complied with which are essential to constitute an attachment, I submit that the State court is the exclusive judge in this particular, and that its judgment is not open to review in this court.

Mr. Justice Grier delivered the opinion of the court:

This case was argued with the case of Philip Peck et al. v. John S. Jenness et al., and the record presents the same questions which have just been decided in that case.

For the reasons there assigned, the judgment of the Superior Court of New Hampshire is affirmed. Order.

This cause came on to be heard on the tran

script of the record of the Superior Court of Judicature of the State of New Hampshire, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Superior Court of Judicature in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.

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A decree of the District Court of the United States, sitting in bankruptcy, whereby a person proceeded against, in invitum, was declared to be a HIS, like the preceding case of Peck v. Jen- bankrupt, is sufficient evidence, as against those ness, was brought up from the Superior at there was a debt due to the petitioning creditwho were not parties to the proceeding, to show Court of Judicature of the State of New Hamp-or; that the bankrupt was a merchant or trader shire, by a writ of error issued under the within the meaning of the act; and that he had committed an act of bankruptcy. twenty-fifth section of the Judiciary Act. Ledden was an inhabitant of the Province of New Brunswick, and Colby of the State of New Hampshire. The attachment was issued in 1837.

The case was similar, in its principal circumstances, to that of Peck v. Jenness, and was argued together with it.

Č. B. Goodrich, for the defendant in error: As to the principal question, I rely upon the 627*] argument submitted *in the case of Peck v. Jenness. The attachment in this case was made before the passage of the bankrupt statute. It cannot with much reason be said,

The first section of the Bankrupt Act declares that the making of any fraudulent conveyance, assignment, sale, gift, or other transfer of lands, tenements, goods, or chattels, is the commission of an act of bankruptcy.

No creditor can, by instituting proceedings in a State Court, after the commission of *an [*628 act of bankruptcy by his debtor, obtain a valid lien upon the property conveyed by such fraudulent deed, if he has notice of the commission of an act of bankruptcy by the debtor. It passes to the assignee of the bankrupt for the benefit of all the


A lien thus acquired is not saved by the proviso That of the second section of the bankrupt law. ent with the second and fifth sections of the act, proviso does not protect liens which are inconsistand these sections declare such a lien to be void.


On the 6th of April, 1842, Benjamin Brandon executed the following deed:

HIS was an appeal from the Circuit Court | respective purchases, so far as said debts may of the United States for the District of go; and in such cases, if any such should occur, Kentucky. only the residue of the price to be distributed pro rata as aforesaid; and after the payment of all said Brandon's debts, to pay the residue, if any, to said Brandon, his heirs and assigns; and the title to the estate hereby conveyed he doth hereby warrant and defend to said Withers, and his successor or successors, forever, in trust for the purposes aforesaid, against the claim or claims of him, the said Benjamin. timony of which, the said Benjamin Brandon hath hereunto subscribed his name and affixed his seal, this day and year first above written. Benjamin Brandon."

On the 3d of May, 1842, John L. Shawhan and others filed a bill in the Harrison Circuit Court of Kentucky, sitting as a court of equity. The bill recited, that the complainants were creditors of Brandon; that he had executed the deed above set forth, "for the purpose of hindering, delaying, and defrauding the creditors of the said Brandon in the collection of their debts;" that the trustee was about to sell and dispose of the property mentioned in the deed; and prayed for an injunction to stop him.

On the same day an injunction was issued,.. and served upon Brandon and Withers, the trustee.

On the 21st of May, 1842, Brandon and Withers filed separate answers to the bill. Brandon admitted his indebtedness, and the execution of the deed of trust; averred that Shawhan was present while the deed was preparing, and expressed himself satisfied with its provisions; denied most positively that he executed said deed either to hinder, delay or defraud his creditors, but, on the con- [*630 trary, in good faith, believing that general satisfaction would be given to them. swer of Withers was to the same effect as that of Brandon.

"This indenture, made and entered into this 6th day of April, 1842, between Benjamin Brandon, of Harrison County and State of Kentucky, of the one part, and William A. Withers, of the county and State aforesaid, of the other part, witnesseth: That the said Benjamin Brandon, for and in consideration of one dollar, to|Brandon, and against all other claims. In teshim in hand paid, and for the further consideration hereinafter mentioned, hath given, granted, bargained, sold, released, conveyed, and confirmed, and by these presents do give, grant, bargain, sell, release, convey, and confirm unto the said William A. Withers, his successor or successors, forever, all the estate, real, personal, and mixed, of whatever nature or kind it may consist (except such property only as by law not subject to execution), said estate hereby conveyed consisting of a tract of about 336 acres of land, situated in the State and county aforesaid and the same tract on which said Brandon now resides, and on which is a steam mill and distillery, the boundary of which land is more particularly designated in the several deeds which said Brandon holds for said land; also, five negroes, two wagons and teams, about 400 head of hogs, about 15,000 pieces of cooper's stuff, all his stock of horses, cattle, and sheep, his household and kitchen furniture and farming utensils, his debts and choses in action, of every kind and description; it being the intention of said Brandon, by this deed, to convey to the said Withers and his successors, forever, all his estate, real, personal, and mixed, and choses in action, with the exceptions hereinbefore expressed, whether the same be particularly mentioned and set forth in this instrument or not. To have and to hold all the estate, real, personal, and mixed, and choses in action, hereby conveyed to the said William A. Withers and his successor or successors, forever, in trust, for the following purposes, namely: To collect the debts and choses in action due, payable, or owing to said Brandon, and to sell the real estate hereby conveyed, either all together or in lots, as said trustee may think most advisable, at public auction, to the 629*] highest bidder, on the following payments: namely, one third of the purchase money to be paid in hand, and the residue in one and two years; and the slaves and personal estate to be sold at public auction to the highest bidder, on a credit of twelve months; and after making to said trustee a just and reasonable compensation for his trouble and expenses in executing this trust, to pay all the money which he may receive as trustee aforesaid, either by the collection of debts or choses in action, from the proceeds of the sale of the trust estate, to all the creditors of said Brandon, ratably, proportionably to the amount of their respective debts or demands; but should any one or more of the creditors of said Brandon become the purchaser or purchasers of any portion of the real or personal estate, or slaves, hereby conveyed, said trustee is authorized and empowered to accept the debt or debts due or owing by said Brandon to such purchaser or purchasers, in payment for their

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On the 25th of June, 1842, Withers and Brandon_applied for an order to change the venue. It was granted, and the record sent to the County of Bourbon.

On the 24th of September, 1842, John Lail presented a petition to the United States Kentucky District Court, sitting in bankruptcy. It alleged that, on the 6th of April preceding, Brandon had made a fraudulent conveyance with intent to defraud his creditors; and that he had concealed himself to avoid being arrested. It then prayed that the court might declare the said Benjamin Brandon a bankrupt. With the petition were filed several exhibits, which it is not necessary to state particularly.

On the same day an order was passed, setting down the hearing for the 4th of the ensuing November, and, in the mean time, enjoining the defendant and all others from removing or otherwise disposing of the property of the defendant, or which, on the decree, the assignee might be entitled to reclaim and recover.

On the 22d of October, 1842, the Bourbon County Court, before which the suit of Shawhan and others against Brandon and Withers was pending, passed a decree annulling and setting aside the deed of trust, as being, in

point of law, fraudulent and and void. The | cree of Bourbon County Court, under the court enumerated many of the creditors, authority of which they had sold the land to whose claims had been exhibited, and then or- Shawhan, who was threatening to disturb the dered, that "so much of the personal prop- possession of the complainant, and by his erty, slaves, and real estate mentioned in said threats and false claims of title was preventdeed of trust as may be necessary for the pur- ing the complainant from disposing of the land. pose be sold to satisfy the aforesaid debts." It then prayed that Shawhan might be ordered Thomas B. Woodyard was appointed to make to surrender up, to be canceled, any pretended the sale, according to certain given directions. claim, and that all the parties might answer, On the 22d of November, 1842, the District | etc. Court of the United States passed the following order:

“John Lail v. Benjamin Brandon. "The prayer of the petitioner, that the defendant be declared a bankrupt, having been heard upon the allegations of the petition, and the proofs taken and filed (the defendant having failed to answer), and now having been fully considered:

“It is found and adjudged by the court, that the said Benjamin Brandon, of Harrison County, being a retailer of merchandise, and indebted as in the petition mentioned, did, by making the deed of conveyance and assignment to William A. Withers, of all his property, real, personal and mixed, and rights of property, subject to the payment of his debts 631*] by the *laws of the State, bearing date the 6th day of April, 1842, and on the 7th day of that month and year admitted to record in the clerk's office of the Harrison County Court, and in the petition mentioned, whereof a copy is filed here, now adjudged a fraudulent conveyance and assignment; and by concealing himself to avoid being served with process, whereby a suit had been commenced against him, thereupon became and is a bankrupt. "Perry Wherritt is appointed the assignee, and required to execute bond in the penalty of $5,000, with two sufficient sureties."

On the 24th of November, 1842, Woodyard, the commissioner appointed by Bourbon County Court, proceeded to sell the personal property of Brandon.

In May, 1843, the commissioner made his report to Bourbon County Court, whereupon another decree was passed, reciting that the former sale was insufficient to pay the debts, and directing that so much of the land comprised in the deed of trust as might be necessary for the purpose should be sold for the payment of the balance of the debts.

On the 14th of July, 1843, the commissioner sold the land, in conformity with the above order, and John L. Shawhan became the purchaser. A writ of possession was issued in his favor, in April, 1844, which will be mentioned again in its proper place.

On the 10th of August, 1843, Wherritt as assignee of the estate of Benjamin Brandon, filed a bill in chancery, in the District Court of the United States for the District of Kentucky, against John L. Shawhan and the other parties named in the caption of this statement. The bill referred to the former proceedings of the court, declaring Brandon to be a bankrupt, and all the other facts in the case. It stated that the assignee had taken possession of the property of the bankrupt, including the land; that Shawhan and others knew of the commission of the act of bankruptcy, but had nevertheless obtained a de

On the 18th of December, 1843, John L. Shawhan, Daniel Shawhan, and Benjamin Berry answered separately. Shawhan admitted the execution by Brandon of the deed of April *6th, 1842, but denied that he [*632 admitted also the proceedings by himself in had committed any acts of bankruptcy. It the State court to set aside the deed as fraudulent, and the decree and sale as stated above; but insisted that by said proceedings he had acquired a lien on the property which could not be impaired by the proceedings in bankcourt, having been commenced before those in ruptcy, and that the proceedings in the State bankruptcy, could not be affected by those of the District Court of the United States.

It is not material to state the answers of the

other defendants. To these answers there was a general replication.

At the April Term, 1844, the Bourbon County Court passed a decree reciting the sale to proceeding as follows, viz.: Shawhan by the commissioner, Woodyard, and proceeding as follows, viz.:


"It is therefore decreed and ordered, that, the said purchases made by the Shawhans be, and the same are hereby confirmed; that the amounts so decreed to said Shawhans be, and the same are hereby extin

guished and satisfied, by the aforesaid purchases made by them, except as to said balance of $149.34, which was decreed to the Shawhans above the amount of their purchases. That a writ of possession issue in favor of said John L. Shawhan, to put him into the possession of said tract of land mentioned in the complainant's bill; that Thomas B. Woodyard, the commissioner herein, convey all the right and title of the defendants, Brandon and William A. Withers, in and to said tract of land, to said John L. Shawhan, by deed of special warranty, warranting the title of the same against the claims of the said Benjamin Brandon and William A. Withers, and all persons claiming by, through, or under them, but not against the claim or claims of any other person or persons whatever."

The decree then proceeded to regulate certain details.

In June, 1844, the bill filed by Wherritt in the District Court of the United States came on for hearing, when the complainant prayed that the defendants might be ordered to pay over the amount of sales of the personal property which had been sold under the authority of Bourbon County Court. A reference took place to a master in chancery, upon the coming in of whose reports the court passed the following final decree, on the 10th of June, 1844.

"This cause having been heard at this term, and argued by counsel, thereupon, on considation thereof:

It is adjudged by the court, that the complainant was invested with all the estate which

was of said Brandon at the time he became a bankrupt, and that the defendants did not, by their after-commenced suit, and proceedings 633*] therein had *with notice of his act of bankruptcy, obtain a right to have it thereby subjected exclusively, or. first, to the satisfaction of their demands; and that the defendants, John L. Shawhan, Daniel Shawhan, George H. Perrin, Benjamin Berry, Catharine Snodgrass, and Isaac Miller, by the subsequent sales of the movable property by them so caused, did become, on the demand of the complainant here made, and are each of them, liable for his, their, and her proper portion of the proceeds thereof, whereof they thus wrongfully obtain the benefit, and must pay the same, together with the interest thereon, to the complainant, for the purpose of equal distribution required by the statute; and it is adjudged, that the sale of the land so afterwards caused by the defendants was wrongful, and assailed here by the complainant, was and is ineffectual, and did not invest the defendant, John L. Shawhan, the purchaser, with the right thereto, in opposition to the title which had previously passed by decree of bankruptcy of its holder so declared, and was vested in the complainant as the assignee so appointed; but the said Shawhan, by the assertion of his pretended claims so founded, has and does injuriously embarrass the title of the complainant.

"It is therefore ordered, adjudged and decreed, that the defendant, John L. Shawhan, do, on or before the first day of July next, execute to the complainant, as assignee of the bankrupt estate of Benjamin Brandon, a deed of release of all right, title, and interest claimed by him, Shawhan, in and to the tract of land whereon the said Brandon resided, containing 350 acres, more or less, in the County of Harrison, in the bill and answers mentioned, with covenant of warranty against all persons claiming by, through, or under him.

"And it is adjudged and ordered, that said Shawhan do, on or before the first day of July next, deliver to the complainant the possession of the said land."

The decree then went on to specify the amounts to be paid, etc.

From this decree there was an appeal to the Circuit Court of the United States for the District of Kentucky.

On the 22d of November, 1844, the Circuit Court affirmed the decree of the District Court.

The defendant appealed to this court, and the cause came up on this appeal.

It was argued by Mr. Trimble for the appellants, and Mr. Bibb for the appellee.

The appellants assigned the following causes of error:

I. The Circuit Court erred in affirming the decree of the District Court, and in decreeing costs against the appellants.

634*] *II. The Circuit Court ought to have reversed the decree of the District Court and dismissed the bill, on the following grounds, to wit:

1. The bill filed by the appellee in the District Court is predicated entirely on the provisions of the English statutes, or the former

bankrupt law of the United States, passed in 1800.

2. There is no equity in the bill filed in the court below, when tested by the late bankrupt law of 1841.

3. The bill alleges that the appellee is in possession of the tract of land in contest, and prays the court to quit him and the possession, and protect him against the process of the State court; and the decree directs John L. Shawhan to restore the possession.

4. The decree assumes a fact which is contradicted by the record. John I. Shawhan, etc., commenced their suit in the State court several months before Brandon became a bankrupt, and not afterwards, as is stated in the decree.

5. The principles assumed by the decree are expressly negatived by the bankrupt law of 1841, and can only be sustained by adopting the provisions of the English statutes, or the bankrupt law of 1800.


6. The decree directs the appellants to pay over to the appellee the amount of the sales of the slaves and personal estate of Brandon, when it appears from the record that the commissioner took notes for the purchase money, and the appellants have not received either the notes or the money.

7. The petitioner was not a creditor of Brandon when the petition was filed.

That portion of the argument of the counsel for the appellants, which related to the principal point decided by the court, was as follows,



By the decree of the District Court, it is said that the complainant in that court was invested with all the estate of Brandon at the time he became a bankrupt, and that the defendants did not, by a suit commenced afterwards, obtain a right to have it subjected to their command, etc. If, by that expression, it was intended to say that, by the decree in bankruptcy, the assignee was invested with all the estate of Brandon, at the time he made the fraudulent deed of trust, the opinion of the court is in direct opposition to the plain and unequivocal words of the third section of the act. section expressly declared that the estate of the bankrupt shall, from the time of the decree, be deemed to be devested out of the bankrupt, and by force of the decree be vested in the assignee. That provision of the section must be abrogated, and other words *interpo- [*635 lated before the opinion of the District Court can be sustained. It would be a strange perversion of that section, to say that the decree should have relation to an act of bankruptcy, contrary to the express words of the section. If that section had barely said that, by the de cree, the estate should be devested out of the bankrupt, and vested in the assignee, without reference to the time when the estate should be so devested, there might have been some room left for construction. But such language has not been used. On the contrary, the words employed have left no room for construction as to the time when the property shall be devested out of the bankrupt, and vested in the assignee.

The same section is equally explicit as to the power of the assignee to sell and dispose of the property of the bankrupt. It provides that the

assignee shall have the same power to sell and dispose of the property which might be exercised by such bankrupt before or at the time of the bankruptcy declared. If, by the decree in bankruptcy, the property was devested out of the bankrupt from the time of making a fraudulent conveyance, he certainly could have no power to sell or dispose of his property at the time of the bankruptcy declared. If Congress had intended that the decree in bankruptcy should have relation to an act of bankruptcy, they would have employed language indicating such an intention. They have not done so, nor even left room for construction on that subject; but the most explicit language has been employed to prevent any such relation by construction. Neither the English statutes, nor the former bankrupt law of the United States, contain any provision similar to that in the third section of the late bankrupt law. The decisions in the English books, and the decisions of the American courts, founded on statutory provisions totally dissimilar, cannot, therefore, have any influence on the question. The statute 13th Eliz. empowers the commissioners in bankruptcy to sell and convey all the lands and tenements which the bankrupt had at the time he became a bankrupt; and further provides, that such conveyance shall be good against the bankrupt, and all other persons claiming by, from, or under him, or by any act after committing the act of bankruptcy. 2 Bl. Com. 285; 2 Phil. Ev. 289.

The statutes of James I. direct the commissioners to assign over to the assignees the whole of the bankrupt's estate, and makes void all acquisitions of property by, from, or under the bankrupt, at any time after committing the act of bankruptcy. A few cases, only, are excepted out of the general prohibition by the same statutes, and by the statute of 19th George II. 2 Bl. Com. 485, 486; 1 W. Bl. 68; 2 W. Bl. 829. The tenth section of the bankrupt law of the United States, passed in 636*] *1800, contains similar provisions. By the express provisions, therefore, of the English statutes, and of the bankrupt law of 1800, the assignment of the commissioners vested in the assignees the whole of the estate of the bankrupt which he had at the time when he committed the act of bankruptcy. It has already been shown, that the late bankrupt law contains no such provision, but that its provisions expressly negative any relation to an act of bankruptcy.

Mr. Bibb's argument upon the same point was as follows:

III. The rights, titles, and authorities of the assignee, when appointed by the court, had relation to the act of bankruptcy committed on the 6th of April, 1842, specified in the decree declaring the bankruptcy, and overreached and avoided the lien claimed by the appellants as the result of their proceedings in the State court, so originated after and with full knowledge of the prior act of bankruptcy.

Such relation is expressly enacted by the second and third sections of the Act of 1841. That the effect of such relation, so enacted by the statute, is to annul all subsequent acts by which the assets of the bankruptcy are attempted to be diverted from the general fund for distribution among the several creditors of

the bankrupt, is a doctrine well settled by very many adjudged cases. These precedents may be arranged under four classes.

1st Class. Transactions by and with a bankrupt preceding an act of bankruptcy, but in contemplation of bankruptcy, and for the purpose of preferring a creditor contrary to`the spirit of the bankrupt law, and therefore void. Of this class these examples will suffice: Locke v. Winning, 3 Mass. Rep. 325, 326, 329; Harman v. Fishar, 1 Cowp. 117, 123; Rust v. Cooper, 2 Cowp. 629, 632, 633; Alderson v. Temple, 4 Burr. 2238, 2239, 2241; Compton v. Bedford, 1 W. Bl. 362.

2d. Class. Transactions by a bankrupt in themselves acts of bankruptcy, and therefore void. Of this class these examples, out of many others, will suffice. Worsely v. De Mattos, 1 Burr. 468, 476, 484; Wilson v. Day, 2 Burr. 827; Alderson v. Temple, 4 Burr. 2239, 2240; Devon v. Watts and Hassells v. Simpson, 1 Doug. 86, 89, 92; Linton v. Bartlett, 3 Wilson, 47.

3d Class. Transactions by and with a bankrupt after an act of bankruptcy committed, and before commission sued out, void because after an act of bankruptcy. Of this class these examples will suffice: Hussey v. Fidell, 3 Salk. 59; Dyson v. Glover, 3 Salk. 60; King v. Leith, 2 T. R. 141; Vernon v. Hall, 2 T. R. 648; Dias v. Freeman, 5 T. R. 197.

*4th Class. Efforts by process of law, [*637 after an act of bankruptcy, to abduct the property of the bankrupt from the assets for distribution among the general creditors, avoided by the commission after taken out upon the previous act of bankruptcy. Of this class these examples will suffice: Sill v. Worswick, 1 H. Bl. 665; Cooper v. Chitty, 1 Burr. 20; Coppendall v. Bridgen, 2 Burr. 817, 820; Smallcomb v. Cross, I Ld. Raym. 252; Rust v. Baker, 2 Strange, 996; Payne v. Teap, 1 Salk. 108; Smith v. Milles, 1 T. R. 475; Ward v. Macauley, 4 T. R. 489, Buller's N. P. 41, 42.

Such must be the relation to the time of the act of bankruptcy, and such the effect thereof, according to the enactments of the third, second, and fifth sections of the bankrupt law of 1841.

I put the third section foremost, because that section declares that the rights, titles, powers, and authorities of the assignee shall relate, not only to the time of the act of bankruptcy committed, but even to a time before the bankruptcy. I refer to the second section for the purposes, first, to show that the time of the decree passed is not the border and foremost faculty given to rights of the assignee (as has been argued for the appellant), when appointed by the court in consequence of the decree, but that the relation thereof to the act of bankruptcy, upon which the decree is founded, is clearly avouched by the second section; second, as explanatory of the sense and propriety of the expression in the third section, "before or at the time of his bankruptcy."

The celebrated maxim of the Rabbins is, "In the law there is no such thing as first or last." For in the law many things are set down, all taking effect, as the one law, at one and the same time. The sages of the law have been used to collect the sense and meaning of the law by comparing one part with another, and by viewing all the parts together as one whole, and

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