THE BANKRUPT IN BLACKSTONE'S DAY

An up-to-date Credit Manager, turning over the pages not long ago of the "Commentaries of the Laws of England by Sir William Blackstone, Knight, one of the Justices of his Majesty's Court of Common Pleas," read with not a little regret for the good old days that are gone, Chapter XXXI, "Of Title by Bankruptcy."

Times have greatly changed, he noted, in Judicial and business customs since the famous jurist made his last commentary, and departed, in 1780, this vale of tears.

Here are some of the passages that interested the modern Credit Manager:

"And at the third meeting" of creditors, "at farthest, which must be on the forty-second day after the advertisement in the gazette, unless the time be enlarged by the lord chancellor, the bankrupt, upon notice also personally served upon him, or left at his usual place of abode, must surrender himself personally to the commissioners; which surrender, if voluntary, protects him from all arrests till his final examination is past: and he must thenceforth in all respects conform to the directions of the statutes of bankruptcy; or, in default of either surrender or conformity, shall be guilty of felony without benefit of clergy, and shall suffer death, and his goods and estate shall be distributed among his creditors."

"In case the bankrupt absconds, or is likely to run away, between the time of the commission issued, and the last day of surrender, he may by warrant from any judge or justice of the peace be apprehended and committed to the county gaol, in order to be forthcoming to the commissioners; who are also empowered immediately to grant a warrant for seizing his goods and papers.

"When the bankrupt appears, the commissioners are to examine him touching all matters relating to his trade and effects. They may also summon before them, and examine the bankrupt's wife, and any other person whatsoever, as to all matters relating to the bankrupt's affairs. And in case any of them shall refuse to answer, or shall not answer fully, to any lawful question, or shall refuse to subscribe such their examination, the commissioners may commit them to prison without bail, till they submit themselves and make and sign a full answer; the commissioners specifying in their warrant of commitment the question so refused to be answered. And any gaoler, permitting such person to escape, or go out of prison, shall forfeit 500 pounds to the creditors.

"The bankrupt, upon this examination, is bound upon pain of death to make a full discovery of all his estate and effects, as well in expectancy as possession, and how he has disposed of the same; together with all books and writings relating thereto; and is to deliver up all in his own power to the commissioners; except the necessary apparel of himself, his wife, and his children; or, in case he conceals or embezzles any effects to the amount of 20 pounds or withholds any books or writing with intent to defraud his creditors, he shall be guilty of felony without benefit of clergy; and his goods and estates shall be divided among his creditors.

"And unless it shall appear, that his inability to pay his debts arose from some casual loss, he may, upon conviction

by indictment of such gross misconduct and negligence, be set upon the pillory for two hours, and have one of his ears nailed to the same and cut off.

"After the time allowed to the bankrupt for such discovery is expired, any other person voluntarily discovering any part of his estate, before unknown to the assignees shall be entitled to five percent out of the effects so dis covered, and such farther reward as the assignees and commissioners shall think proper. And any trustee wilfully concealing the estate of any bankrupt, after the expiration of the two and forty days, shall forfeit 100 pounds, and double the value of the estate concealed, to the creditors

"Hitherto everything is in favour of the creditors; and the law seems to be pretty rigid and severe against the bankrupt; but, in case he proves honest, it makes him full amends for all this rigour and severity." (Blackstone does not describe how the bankrupt's ear is to be reattached to his head.)

"For if the bankrupt hath made an ingenuous discovery, of the truth and sufficiency of which there remains no reason of doubt, and hath conformed in all points to the directions of the law; and if, in consequence thereof, the creditors, or four parts in five of them in number and value, but none of them creditors for less than 20 pounds will sign a certificate to that purport; the commissioners are then to authenticate such certificate under their hands and seals, and to transmit it to the lord chancellor, and he, or two of the judges whom he shall appoint, on oath made by the bankrupt that such certificate was obtained without fraud, may allow the same, or disallow it, upon cause shewn by any of the creditors of the bankrupt."

From the Credit Monthly, May, 1929.

Referee Harvey D. Grindle, Lima, Ohio, is a member of the Executive Committee of the Ohio State Bar Association. This Association will hold a mid-winter meeting at Dayton, Ohio, this month.

As District Judge for Kansas, Richard J. Hopkins, formerly of the Supreme Court of that State, has been selected. In the Middle District of Pennsylvania Albert L. Watson of Scranton, has been selected as judge.

The selection of Herbert F. Seawell, of Carthage, North Carolina, as one of the U. S. Board of Tax Appeals has been made. His son, Herbert F. Seawell, Jr., is a Referee in Bankruptcy.

Edwin S. Slater, Minneapolis lawyer, former law partner of Referee Alexander McCune, Minneapolis, Minnesota, died January 9, 1930, aged seventy-three.

H. Noyes Greene, of the editorial staff of the Edward Thompson Co., died September 5, 1929. Among his first works was a revision of Collier on Bankruptcy. He was a graduate of Williams College and a member of the New York City bar.

Mr. Hughes always had known the difference in duty as between the judge and the advocate. He has been both judge and advocate but never simultaneously. Whether serving as judge or acting as advocate there always has been a mental balance that precluded use of his great powers in a spirit of vindictiveness or disregard of the rights of others. He never has posed as a reformer, even in the days when he was a candidate for office and "reforming" was popular. Yet, as a matter of fact, when elected, he brought about more reforms of a practical, needful, and durable nature than had been advocated by professed and professional reformers.

To any one who will take the time to study the whole Hughes career it is plainly apparent that the guiding spirit, the animating motive, of the man throughout all the years has been to do well whatever job he undertook. If he had

engaged himself to defend the action of some great corporation in conducting its business in a manner charged by the government to be an unlawful restraint of trade he gave to that defense the full measure of his great legal and intellectual resources. If he was hired, as a young and comparatively obscure lawyer, by a legislative committee, to investigate the dealings of gas companies and insurance companies charged with extortion and imposition upon the public, he gave the people's cause every atom of his energy, intellect and talent. If, in later years, he was called upon to defend labor union officials who had called a strike charged by the government to be a violation of law he gave himself as unstintedly to their cause as he did to that of a corporation client whose fee might be $100,000 or more.

Silas Hardy Strawn, former President, American Bar Association. From Minneapolis Journal.

Your editor has asked me to contribute something about the distinguished citizen who to many of us has always been Judge Taft. It has been my privilege to publish numerous accounts of the remarkable career of one who was very dear to those privileged to know him well and I can see no real advantage to be gained by repeating the details of a life that is now so familiar. To the suggestion that some reference to his career as a Circuit Judge, living in our midst, might be of interest I can hardly fail to respond, even at the risk of being somewhat personal.

My acquaintance with Judge Taft goes back to boyhood Hays and I can hardly remember a time when I did not feel that I knew him well enough to ask his counsel at important periods of my own life. I knew his father Judge Alphonso Taft quite well, being associated with him in our unique institution The Literary Club when I was just graduated from college and he was an outstanding figure, a man of international reputation who had held two cabinet positions and who had represented our Government abroad at Vienna and in Russia after a most distinguished career on the bench. He was a very great lawyer and the father of five sons of distinguished ability. Believers in heredity will find this family an interesting study.

It was Judge William H. Taft who influenced me largely in entering public service as assistant United States Attorney in 1894 and it was he that first suggested to me the position of Referee in Bankruptcy in 1898. He was a most sincere friend and gave freely of his counsel to all who came within the circle of his friendship. I trust that I may be pardoned therefore for any personal touch that may appear in what I am writing. He was the last of the judges of the various courts of the Sixth Circuit who were in the service when I became attached to the department thirty-six years ago.

It would be difficult within the limits of space to give an impression of the feeling that existed almost from the beginning of his career as to his qualifications, character and future possibilities. A remark of Theodore Roosevelt in an article published in 1901 was not only prophetic in an unusual degree but expresses the almost universal feeling that he was deemed worthy of the greatest honors and responsibilities.

year ago a man of wide acquaintance both with American public life and American public men, remarked that the first Governor of the Philippines ought to combine the qualities which would make a first class President of the United States with the qualities which would make a first class Chief Justice of the United States, and that the only man he knew who possessed all these qualities was Judge William H. Taft of Ohio. The statement was entirely correct.

His career is a part of the history of the country and need not be commenetd on here. I venture a few extracts

from a paper written almost twenty years ago which disconnected as they are may give an impression of his work as a Circuit Judge. They are given as written at that time. "Another District Judge at that time and the one who had charge of the Court at Columbus during my term was Judge Severens who I suppose was as fine a lawyer as ever sat on the bench in this Circuit. Judge Severens' manner was not sympathetic and in the trial of a criminal case he seemed rather severe. One of the two criminal cases with which I had had anything to do before taking office was tried before Judge Severens a few weeks before I was sworn into office. An unfortunate insurance collector for a company represented by me was indicted for passing counterfeit money and the company insisted that I must defend the case. I knew very little of criminal practice and although I had rather unusual experience perhaps in the trial of jury cases on the civil side of the Court I felt as timid as the most inexperienced law student on the criminal side. While sitting in the Court room waiting the call I listened to the concluding address and charge in the case on trial before Judge Taft. It was a case of a photographer charged with photographing money and making counterfeit bills therefrom. As I listened to Judge Taft's charge to that jury I felt that the words of the poet 'let all abandon hope who enter here' certainly applied. Not that Judge Taft's charge was not pre-eminently fair! That was the trouble with it. It was too fair and searched the evidence on both sides with the keenest analysis. The federal judges have the practice of charging the jury on the facts, a practice that I firmly believe in, and as Judge Taft recited the evidence first for the Government and pointed out its tendencies and then recited the evidence for the defendant which was supposed to meet that of the Government and pointed out its weaknesses I felt that the poor man on trial must expect no escape on any sympathy plea addressed to the jury. As I left the court room I felt that my client whom I considered innocent but against whom the facts looked black might as well pack up for the penitentiary if Judge Taft were to try the case. To my great satisfaction, when I came back the next day I found that Judge Taft had vacated the bench and that Judge Severens was in his place. My satisfaction was short however for in a very few moments I began to pray for Taft. A little more emotionalism and a little less exactness in the applications of what seemed to me the cruel rules of evidence would have been much pleasanter. However we acquitted the man and I think justly so, although Judge Severens, I am inclined to think, did not agree with me. Judge Taft was always very much amused at this story which I have told to him while in company with Judge Severens on several occasions.

"Of course it was always a pleasure to try a case before Judge Taft although his methods at times were somewhat

disconcerting. With all due respect to his judicial qualities for which I have the greatest admiration, it cannot be gainsaid that at times his intense interest in the matters pending before him made the presentation of cases somewhat difficult. He was very apt to form a judgment with regard to the matter or perhaps I should say a tendency upon the statement of the case and we soon learned that it was of the highest importance to make the strongest possible presentation of the case at the outset. Judge Sage was sufficiently interested in the technical work of the law to enjoy the development of the case and would watch with great interest, but without interference, the gradual welding of the chain of evidence. He was particularly interested in the style of presentation which would put in the different elements of the case in such a way as not to make clear perhaps at the moment the exact relationship of the matter to the issue, it being his theory that in this way witnesses would be more likely to give absolutely uncolored statements. If the witness could see just what the purpose and effect of his testimony is in each case he might even with the most honest intentions color his statement to suit his own preconceived ideas. If on the other hand he was asked as to a series of, to him, apparently disconnected facts he would answer with strict regard to the truth unaffected by his personal interest in the matter. It was the duty of counsel according to Judge Sage to bring together the apparently disconnected threads at the end of the case by pointing out the probative effect of the facts established. As I understood Judge Taft's method he seemed to prefer that the whole theory of the case should be clear to everybody throughout the trial. He was always determined to see for himself the bearing of each point as it came in and rather disinclined to take the statement of counsel, a professional statement, the value of which depends upon the character of the counsel making it, that he would connect up the matters inquired about at a later period of the case. As a result Judge Taft was inclined to interrupt proceedings and at times to express opinions with regard to the development of the case which cannot but have their effect upon a jury, although he was very careful in each case to tell them to reserve their judgment until they had heard all the testimony. I recall very well a very important case in which we had witnesses summoned from all over the United States and kept here for several days during the trial at much expense to the Government. Judge Taft from the outset seemed to get the impression that our case was a weak one. We had not progressed very far until he expressed this from the bench and practically ruled out a good deal of testimony that we thought of the highest importance. As a result the testimony of many of these witnesses would be worthless and after conferring with him they were dismissed. On the morning of the third day just before the opening of the trial the little electric bell at my desk summoned me to Judge Taft's consultation room where I found that counsel for the defendant were also present as a result of a like summons. Thereupon he told us that he had come to the conclusion that he had misunderstood the tendency of our proof and the weight of it and that he was going to permit the testimony which had been ruled out. We observed that many of the witnesses by reason of the pre

ceding developments of the case and his rulings had bee sent back to their homes, some as far as Maine and Kansa and that the matter of time as well as expense made impossible now to put the evidence in. He realized tha this was unfortune but told us that we must do the bes we could with such witnesses as we had. To the suggestio that his own remarks on ruling on the testimony must un doubtedly have impressed the jury against the Govern ment's case he assured us that he would correct that an this he certainly did in most forcible style. Our case wa much hampered although in the end it cut no great figur in the result as we had a strong case and the defendant were unquestionably guilty. In another case the matter o argument upon a point of law of some importance wa presented to him with all the force that we were capabl of using, but without effect at the time. The opposin counsel seemed to have an easy time of it when it came t his argument. At the conclusion of the defendant's argu ment the hour for adjournment was about at hand and we had but little time to close our case, especially as the Court was to begin at Columbus the next morning and counsel for the Government were due at that point. During the night the Judge sustained a change of heart however and about the first thing that greeted me at Columbus was a telegram that the Court had sustained our position. In other words he never hesitated to admit an error, although at times it seemed hard to overcome the impression gained by him. I rather imagine that many members of the bar could relate numerous anecdotes to the same effect. Notwithstanding this he was a very able trial Judge and his obvious sense of fairness was bound to impress both counsel and jury.

"The young man who advertises for a wife was much in evidence in those days and one of them in particular who finally was captured after several years effort had succeeded in marrying or becoming engaged to six or seven charming women, obtaining from them what little money they possessed on the wedding trip or its preliminaries which usually lasted about forty-eight hours. He got wind of our investigations and escaped, travelling considerably around the world. From each new point of his trip he took occasion to send to the Post Office inspector and to me most friendly and sarcastic letters, telling us of his whereabouts, his pleasant doings and asking most solicitously after the health of the various women whom he assumed we were protecting for him, their absent husband and lover. He seemed to take especial pleasure in this sort of thing, taunting us with our inefficiency, but he fell finally, was apprehended and returned to Cincinnati, where he was wise enough to see that a plea of guilty was his best move. He was a very persuasive fellow and before arraignment sent for me to discuss the propriety of his pleading guilty. Of course we could make no promises, but it was well understood that when a man pleads quilty and saves the Government the expense of a trial and likewise avoids committing perjury in his own defense, that he is likely to receive a shorter sentence, so he told me that he was going to plead guilty and asked me if I would see the Judge before his arraignment in his behalf. I thereupon went into Judge Taft's room, where he was in conference with Judge Severens as I remember it, and stated at some