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In reference to the provisions in the bankrupt act in this case, says, among other things: “Subd. (C) regulating the annulment of attachments in certain was the original provision in the house bill invalicases by bankruptcy, the referee quoted subds. (C) dating liens obtained through legal proceedings by and (F) of section 67. Subd. (C) provides in sub- bankruptcy; subd. (F) was the provision in the stance that an attachment in a suit begun within senate bill, and in the compromise between the house four months before the filing of the petition in bank- and senate, these provisions of both bills were incorruptcy by or against such person shall be dissolved porated into the present act (Collier on Bankruptcy, by the adjudication of such person to be a bankrupt. page 383). There is nothing in the language of "If it appears that such lien was obtained and per- subd. (F) which in terms makes it applicable only mitted while the defendant was insolvent, and that to suits begun more than four months before the its existence and enforcement will work a preference," bankruptcy, and I think that it applies to any case in subd. (F) provides in substance that attachments which an attachment is obtained within four months obtained against a person who is insolvent at any before the filing of the petition * * under this time within four months prior to the filing of a pe- construction most cases that would be affected by tition in bankruptcy against him shall be deemed subd. (C) would also be affected by subd. (F), but null and void in case he is adjudged a bankrupt. I think that the true construction of these subThe creditors' counsel claim that these subdivisions divisions is that if a case comes within the terms of apply to two different classes of cases, subd. (C) either or of both, either or both apply
under applying to in which the suit was begun either subdivision, it is essential that the bankrupt within four months before the filing of the petition should be insolvent at the time the attachment is and subd. (F) to cases in which the suit was begun levied.” As the petition was filed on December more than four months before the filing of the peti- fourteenth, less than a week after the levying of the tion and thic attachment obtained within the four attachment and the verified schedules of the bankmonths. Therefore, subd. (C) alone applies to his rupt, and the total assets as shown by the appraisal case was the contention.
disclosed liabilities to the extent of nearly eight The referee disagrees with the opinion of the times the value of the assets, no evidence being referee In re Hopkins, National Bankruptcy News, offered that there was any substantial change in the January 15, 1899, page 71 (8). Mr. Holt, the referee condition of the bankrupt between December eighth
and fourteenth, the natural presumption formed by secured creditor, provided that he has accepted no
the referee was that at the time of the attachment dividend to the prejudice of other creditors.
In re Clark et al., 5 N. B. R., 255; 5 Fed. Cases, 850, a cred- and the filing of the petition, the bankrupt was initor who, in ignorance of the law, had proved his solvent. As to the contention of the creditors' counclaim without mentioning his security, was allowed sel that subd. (C) does not apply to his case, to withdraw his proof. This is not in derogation of because the defendant moved to vacate the attachthe maxim, " ignorantia juris," etc., as any creditor aggrieved could raise at once an objection.
ment, it thereby not appearing that the lien of the (8) The referee in this case, in construing these attachment was permitted by the bankrupt, the subdivisions says, “the liens included in subdivision referee holds, " by the language of subd. (C) it must (C) are such liens as may be acquired in" proceedings ! appear that said lien was obtained and permitted legal or equitable, begun within the four months, that is, new, fresh legal proceedings, as distinguished from, while the defendant was insolvent.' I think that the old suits, judgments or claims.
conceive word permitted refers to a case in which an attachthat the purpose expressed in that subdivision is, not ment is on its face invalid, but the bankrupt has to cut off all such liens without inquiry into the con- collusively or wilfully permitted it to remain. * dition, intentions and knowledge of the parties, but to
In any event, the question is unimportant upon this give to the creditor who, without knowledge of the insolvency of his debtor or by (?) any fraud, has, by motion, because this case is covered by subd. (F), legal proceedings begun
four months, which contains no such limitation.” Motion denied. acquired some advantage over the other creditors, the The opinion of the New York referee is to be comreward of his diligence. Subdivision (F) was intended mended on account of its simplicity. The constructo reach and affect an entirely different class creditors or lienors, such, for example, as creditors tion by the Alabama referee, creates a distinction holding old judgments upon which, by process issued not recognized by previous decisions under the act within the four months, liens may have been secured, of 1867, and concededly is an unnecessary difference, or pending legal proceedings which within the four and one that would operate as an open door for colmonths, may have ripened into some sort of a lien upon the bankrupt's estate. This class of liens are
lusion. The argument of the referee that this conabsolutely wiped out by the adjudication
struction is the more apparent from the last clause The Bankrupt Act of 1867 contained an expression of the subdivision, stating that the trustee might similar to that in the present act. It provided that
as the assignee (trustee) is appointed and “perfect and enforce” such lien, “if the dissolution qualified, the judge, or register should assign and would militate against the best interests of the convey to the assignee the entire estate of the bank.i estate," seems to rather tell strongly against his porupt with all deeds, books and papers, that such assignation should relate back to the commencement months next proceeding the commencement of said of the bankruptcy proceedings, said property vesting proceedings." (C. Bracken V. Johnston, 4 Dill., 518; in the assignee. Although the same is then attached 3 Fed. Cases, 1120; Long v. Conner, 17 N. B. R., 540; on mesne process as the property of the debtor, and 1 Fed. Cas., 823; Vogel v. Lathrop, 4 N. B. R., 439; 28 shall dissolve any such attachment made within four · Fed. Cas., 1246.)
sition, this latter clause being added obviously to travelled across the herring pond to know the differbetter subserve the interests of all creditors, and not ence between the system which obtains there and for the advantage of any creditor who had procured that pursued in the United States. Take a student a lien within the four months and during the insol- in Great Britain who has made up his mind to folvency of the debtor, where the conditions of legal low the profession and practice of law for a liveliprocess were within the terms of the subdivision.
hood. He will first have to settle whether he To discuss the recent decisions, many of which intends to become an attorney, otherwise called a
upon minor and comparatively unimportant solicitor, or a barrister-at-law. Here comes the first points would expand this paper, unnecessarily, whose point which will have to be elucidated for the benefit object is an illustration of the general principles of of those who do not understand the difference bankruptcy law, as laid down in this district, with between the one and the other. An attorney is the differences contrasted upon the points involved practically the same in every respect as in the from other jurisdictions. When the nature of the United States with the exception that he can not subject is considered, the circumstances that evoked plead before the higher courts. His sphere is the the law, and the hiatus of twenty years between the
petty sessions, the quarter sessions, police courts, repeal of the law of 1867 and the enactment of the
The attorney pleads before a judge of assize measure of 1898, it is really a just source of surprise only in the capacity of furnishing the materials to that the decisions should not evince wider discrep- the barrister, who alone is competent to plead before ancies.
that tribunal. It would probably be easier to codify the decisions under the act of 1867 and 1898, in all the different first instance. If within his own sphere of action he
Every case has to come to an attorney in the jurisdictions, than to attempt the task of reconciling will handle it himself; if not he makes out the brief the various judicial utterances upon the subject of insolvency in the State of New York.
and sends it to the barrister whom he wishes to If it is contemplated that the law should remain employ. Then the client has to pay the attorney
and the barrister. either permanently or for a number of years upon the statute book in a somewhat amended form, from
Now a student wishing to become a solicitor will time to time increasing the difficulties and obstacles have to pass the necessary entrance examination, to the obtainment of a discharge, the general policy of or show his certificate of matriculation of some retaining such a law would doubtless be beneficial. recognized university. He will then have to be In the matter of the fee system as administered apprenticed to a solicitor for a term of five years, under this law, it is probable that the Bar, almost to except in case of a graduate of a recognized univera unit, as well as the public, would welcome some sity, when the term is three years. A payment of a practicable means of either modifying some of its pretty stiff fee is almost always required by any rigors, or the total abolition of the same, with the solicitor who has any apprentices in his offices. In establishment of a permanent board of referees upon addition he will have to attend lectures at the a salaried basis.
headquarters of the law society. There is no school The law as it stands to-day, is emblematic of our so-called. These lectures do not cover a very long modern civilized humanitarian development, and of period of time. The student will have to “keep the principle that “ Justice oft must be tempered with terms,” that is, attendance at the lectures is absomercy.” Thus nations may prosper, remembering lutely necessary to qualify for admission to the that for every loss there is a gain, that even utilita- profession. If a certain number out of the entire rianism has its charitable side, and that the stern lectures delivered are not attended, the student will decree of the "survival of the fittest,” is tempered lose his year. He will have to pass the middle with the divine edict : “ Let the strong bear with the examination before he can present himself for the weak.”
final. When he passes the final, and has an affiALEXANDER LEE HIRSCHBERG. davit made by a solicitor of standing that he studied Mt. Vernon, N. Y., June, 1902.
the required time in his office, he can then, on the proposition of a member of the bar, be admitted
and duly invested with all the rights and privileges LEGAL SYSTEMS IN ENGLAND AND incidental to an ancient and honorable profession. AMERICA.
He will then have to pay an annual license fee of
£10. On default of payment his name is liable to What a strange conglomeration of men and be struck off the roll of solicitors. women one finds in an American university to-day! The procedure is different for the barrister's side I would like to write something in regard to an of the profession. He will have to register at the institution which is certainly in the vanguard of “inns of court,” where he will attend lectures, have educational establishments in Europe or America. the privilege of the library and keep commons. I have had considerable experience of the methods This keeping commons is a curious custom. Every employed and the results brought about by the student must keep commons every term; that is, he various teaching bodies in the British islands, and must eat a dinner a certain number of times in the it may be interesting to those who have never dining hall of the society. Three years is the usual course; two for university graduates. Then when profited by the lectures or not. A fearful agitation he passes the required examination, on the propo- followed. The students demonstrated on the public sition of a barrister of some years standing, he will streets, and subsequently they won the day. The be
called to the bar.” Then he will have to don keeping of note books is not compulsory. In fact, his “wig and gown," and can never plead a case as compared with American system, the whole modus without being attired in this old-fashioned regalia. operandi gave the student more opportunity to do The “inner bar” again is distinct from the “outer as he pleased in this respect. bar." The leading successful juniors after years of Looking at the facts of the case as I find them, I hard work, succeed in being called to the inner bar. must assert that the American system is far and They "take silk," as the phrase goes. This expres- away ahead of the old world methods. The sion came to be used from the fact that members American student is a much more diligent man than from the inner bar, Queen's counsel as they are the average student of the old world. It seems to called, wear gowns made of silk, as distinguished be characteristic of the American people generally. from the stuff gowns of the juniors. Thus the They are indefatigable, resolute and energetic. A practice of the law is surrounded by wonderful pomp boy does not come to college because the father and circumstance. The judge is clothed in robes of thinks and, mayhap, says: “Oh, it will do him magnificence, which are, to say the least, calculated good to run through the 'varsity. I'd like to see my to recall some scenes of the "Arabian Nights.” | boy pull in the boat as I did when I went to Americans are too practical a people to believe college.” They come to work, and they do work in any of this pomp and show. The burly court with a consistent effort which would amaze the attendants are considered pompous enough, and students of the old world. I have worked steadily the majesty of the law is upheld by a few well-fed for hours looking up cases in the library, and, worn policemen, while the clerk of the court plays a very out and tired, I might remark to a student sitting important part, only second to that of the judge near me as to the amount of work I covered in a himself. I confess I was disappointed on my first certain time, only to discover to my dismay that he visit to a court of law in America. I had in my has done twice as much. The American may or may mind's eye a picture of regal state such as I had not be blessed with brains, but one and all seem to always seen in Europe. The glamor which was the have inbred in them a wonderful capacity for quelleffect of all this show had vanished. It seemed as ing hard work. By the way, to anyone who is tired if you took away all the artist's best work from a of reading the sensational papers, or the so-called splendid painting and left nothing but the lay figures humor of the comic papers, or of reading what as drawn out in the rough draft, and which seemed Corbett says about Fitzsimmons, and what the strongly cold and unfamiliar.
doughty champion says of his fallen foe, as they This, of course, was one of my first impressions, sling choice epithets at each other, I would comwhich I suppose are almost always modified by the mend the study of cases. It may not send the same maturer experience of after years.
thrill through his nerves as he may experience as he I have dwelt on these points, as I said, to show surveys the works of art (?) which adorn the picthe difference between the American and European torial pages of the Sunday papers. It may not be systems. I must say, without fear of contradiction, the same reading exactly as the reported speeches of that the system which prevails in this country is far the heroes of the caucuses, where current slang and ahead of anything in Europe. I suppose the system the queen's English struggle for mastery, and the of one school may be taken as a type of the most result is a victory for slang. But if he loves work advanced methods on the American continent. All for the sake of work, and is not afraid to become the red tapeism is eliminated. The whole work of afflicted with paresis, and “writers' cramp," let him the school is mapped out and arranged in a manner take up the study of law and work to keep ahead of that gives the maximum of instruction to the his class. He will find that this is a species of student. The “recitations" were to me a novel
amusement which will prove exhilarating in the feature. As a general rule, they are not included in extreme. the work of any teaching body connected with a Before three weeks are over he will probably long university in Europe. In fact, I have seen to get back to his mother's apron strings, where tremendous agitation which arose from the fact that perchance he can revel in the enjoyment of rustic a professor in one of the queen's colleges wished to repose and all the joys that accompany life in these make it a custom to ask questions on previous lec- peaceful homes of America, where criminal law will tures. Students who did not show proficiency of cease to trouble, and litigants of every kind are at some sort in the previous work which he had rest. lectured on found that the practical professor would I began by saying, what a strange conglomeration rot be inclined to give them credit for attendance at of men and women one finds in an American univerlectures from which they derived no benefit. The sity to-day. I say women advisedly, for the time students regarded this as an infringement on their is coming when poor, frail, broken-hearted, overrights. They did not pay their money to be cate- worked, under-paid man will have to make way for chised. It their own affair whether they the so-called “weaker vessel,” who can do his work
as well as him, and who is fast usurping his domain He is on good terms with his “uncle." His and telling him, go to Klondike or Chelsea, or any- great ambition is to shine as a ladies' man. where except where woman's noble talents are to What can we do for this parasite of city life? The have undisturbed sway. When woman takes her thief and common malefactors we can guard against, place in all the learned professions, and can, in but who can protect society from the worthless attention to business, beat the average man in nine individual who hangs
the skirts of cases out of ten, where are the unfortunate men respectability? going to find their sphere of infuence?
You all know the young man about town whom “The hand that rocks the cradle rules the world.” I have just described. He is a living ulcer to soAye! it will rock the world later on, and the old ciety. He is never detected in crime, but, in my world will wonder what has happened when woman opinion, is always ready to act as a go-between” will rule over its broad acres, and sublunary exist in anything disreputable or shady. The present ence will be a “thing of beauty and a joy forever.” and future generations of America will rise up and “When pain and anguish rack the brow
call him blessed who can show a practical way to A ministering angel thou!”
reform this worthless creature. What would the poet have said if he saw her
JOSEPH M. SULLIVAN. thunder in the forum, if he saw her orating in the
Of the Suffolk (Mass.) Bar. public places as a “socialist” and in many spheres where he never dreamed to see her. His day dreams would have vanished into thin air if he saw
THE COMPENSATION OF JUDGES. her with abbreviated skirts astride a wheel careering along the highway. The women of his day never
Is CHAPTER 468, Laws of 1901, UNCONSTITUTIONAL? raised their skirts above their ankles. It would surprise him indeed. But, good Sir Walter, we have The new Constitution, article 6, section 12, reads women too who think of other things besides the as follows: wheel. Our women are far ahead of the silly,
The judges and justices hereinbefore mentioned simpering, fair "ladye” of your day. “Tempora shall receive for their services a compensation estabmutantur et mutamur nos in illis."
lished by law, which shall not be increased or
John J. O'CONNOR. diminished during their official terms." Of the Suffolk (Mass.) Bar.
Laws of 1900, chapter 431, section I, reads as follows:
“A trial justice who attends a term or part of THE AMERICAN DUDE; HIS PLACE (?) IN the supreme court, except in the counties of New SOCIOLOGY.
York and Kings, outside the county in which he
resides, is entitled to the actual necessary traveling This type of individual is distinctly a creation of and other expenses incurred by him in the performthe nineteenth century. His exact place in society ance of such duties, not exceeding one thousand has never yet been determined by sociologists. Can dollars, to be paid by the treasurer upon the audit you describe him? I will attempt it. He wears on
and warrant of the comptroller." the top of his head a hat just as fat as his cash.
Laws of 1901, chapter 468, section 1, reads as His soiled finger-tips stamp him as an incessant follows: cigarette smoker. The women folks of the com
“Every justice of the supreme court, who has munity are pestered by his undesirable and un- been, or shall hereafter be, designated as a presidsolicited attentions. He wears a large collar, sports ing or associate justice of any of the appellate a cane and cigarette. Of cheek and impudence he divisions of the supreme court of this state, except has an unlimited store. He plays billiards, sports in the first and second departments, and who resides jewelry, wears bouquets and owes the landlady. in a county other than that in which the court to A moustache (nine hairs to a side) generally adorns which he is assigned is held, shall be paid annually his thin lips. He is always ready to drink on the sum of two thousand five hundred dollars in another man's dollar, and the free lunch he never full for all his actual and necessary expenses and spares. His ignorance is always displayed, as is disbursements paid or incurred by him while absent likewise his eyeglass and English airs. When his from the county in which he resides, in the performtailor thinks of him he can sing with perfect pro- ance of his duties as such justice, including his priety “The Heart Bowed Down With Weight of expenses in going to and returning from the place Woe.” His face and pale complexion denote his where such court is held” (amended by Laws 1901, knowledge of folly, vice and sin. His legs are long chap. 468, in effect January 1, 1901). and slender, and a large necktie does yeoman duty The question is whether these acts are within the in hiding his soiled linen. His shoes are sharp at inhibitions of the Constitution, article 6, section 12. the toe, and in winter a pair of seedy gaiters cover Do they increase the compensation established by his slender feet. His poor old father he will not 'law ?
The Constitution of 1846, article 6, section 7, in which he resides, in the performance of his read as follows:
duties as such justice, including his expenses in 'The judges of the court of appeals and justices going to and returning from the place where such of the supreme court shall severally receive, at court is held, not to exceed the sum of twenty-five stated times, for their services, a compensation, to hundred dollars in any year." be established by law, which shall not be increased
"Any justice who is entitled to reimor diminished during their continuance in office." bursement for his expenses and disbursements under
The Constitution of 1869 (amending the above), the provisions of this act, shall make a statement article 6, section 14, was as follows:
of the expenses and disbursements so paid and “The judges and justices hereinbefore mentioned incurred by him and duly verify the same, which shall receive for their services, a compensation to shall be presented to the comptroller for audit, and be established by law, which shall not be diminished the amount audited by him shall be paid by the during their official terms."
treasurer out of any moneys in his hands not otherThe Constitution of 1881, article 6, section 14, is a wise appropriated." verbatim of 1869.
“The disbursements authorized under this We are now in possession of the continuity of act shall be paid from the first day of January, the fundamental law.
eighteen hundred and ninety-six.” Whatever doubt (if any) exists as to the act of Sections 2 and 3 repealed by Laws 1901, chapter 1900, there can be no doubt about the act of 1901. 468.
Where is the evidence that the expenses of a It will be noticed that by this act the justices are justice of the Appellate Division amounts to $2,500? repaid their actual and necessary expenses, but not
Is there a presumption that his expenses amount to exceed the sum of $2,500 in any year. to $2,500?
Does this act, chapter 468 of the Laws of 1901, If so, is it a presumption of fact or of law? violate article 6, section 12, of the Constitution?
His expenses may amount to $1,000, $5,000, or We say it does. This payment increases the even $10,000 -- non constat.
compensation of the justice receiving it. In order to understand more fully these acts, we The $1,200 allowed by the Laws of 1872, chapter must read prior laws.
541, section 1, is the same, in principle, as the Chapter 408 of the Laws of 1870, section 9, reads $2,500 given by the act of 1901, chapter 390, secas follows:
tion i. “The justices of the supreme court shall receive People ex rel Bockes (115 N. Y. 302), the court an annual compensation of $6,000 each, payable had under consideration the question whether the quarterly, in lieu of all other compensation, except $1,200 allowed to justices of the Supreme Court by they shall receive, in addition to such stated salaries, the Laws of 1872, chapter 541, section I, was a à per diem allowance of five dollars per day, for compensation. their reasonable expenses, when absent from their Gray, J., says:
“The word compensation means, homes, and engaged in holding any general or ) and, I think, obviously means, the sum of money special term, circuit court or court of oyer and which the judicial officer had been in the receipt of terminer, or attending any convention, as herein- from the State, when his term of office was after provided, to revise the rules of said court." abridged.”
The legislature of 1872, chapter 541, section 1, In the law of 1870, which gave a per diem allowin part, abrogated these provisions, and enacted as ance for reasonable expenses, etc., that payment follows:
even was regarded as in the nature of compensation “The said justices of the supreme court, except to the justice, for the language used was that the in the first judicial district, shall each receive the $6,000 a year was “in lieu of all other compensasum of twelve hundred dollars, annually, from the tion,” except that they shall receive, in addition to first day of January, eighteen hundred and seventy- such stated salary, a per diem allowance,” etc. two, in lieu of, and in full of all expenses now al- The effect of the use of the word "except," in lowed by law. This subdivision shall not increase connection with the grant of compensation, is to the pay of any judge, except the justices of the invest the grant of a per diem allowance, with the supreme court."
legislative idea of further compensation. Then the Laws of 1896, chapter 390, read as follows:
act of 1872 abrogates the provision for a per diem Section 1. “Every justice of the supreme court, allowance, and grants to the justices “the sum of who has been, or shall hereafter be, designated as $1,200 annually in lieu” of expenses. This language the presiding or associate justice of any of the ap- is substantial in its effect. pellate divisions of the supreme court of this state,
It substitutes an annual grant of money to the except in the first department, and who resides in a incumbent, in the place of the allowance for county other than that which the court to which expenses. he is assigned is held, shall be repaid the actual This, I think, was a clear grant of pay or compenand necessary expenses and disbursements that he sation, having no connection with the expenses shall pay or incur while absent from the county 'incurred by a justice. As granted by this act, it