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creating a preference among creditors, and a failure for at least five days to vacate and discharge the preference in terms refers to the five days before a sale or final disposition of any property affected. It is not averred that this attachment will result in creating a preference, nor does it appear what connection the Standard Oil Company has with the William R. Trigg Company; but assuming that it was indebted to the William R. Trigg Company, and the attachment was in the nature of a garnishment, to stop money in the hands of the Standard Oil Company, it would nevertheless be necessary to aver that the Standard Oil Company was indebted to the Trigg Company; that an attachment had been served and judgment rendered thereon, which would result in creating a preference; and that the said 'Trigg Company had not within five days of the final disposition of the money or property to be affected by the garnishment caused the lien thereby created upon the property to be vacated. In re Rome Planing Mills (D. C.) 96 Fed. 812; Parmenter Mfg. Co. v. Stoever et al., 97 Fed. 339, 38 C. C. A. 200; In re Chapman (D. C.) 99 Fed. 395; In re Thomas (D. C.) 103 Fed. 272.

This brings us to the consideration of the receivership in the chancery court of the city of Richmond, set forth in each petition as an act of bankruptcy, and which is, as a matter of fact, the act most seriously relied on for the adjudication in each petition. The appointment of a receiver for a corporation, such as set forth in each petition, is conceded to be an act of bankruptcy, under the present law; but the controversy in this case arises by reason of the fact of the existence of the receivership prior to the passage of the act of February 5, 1993, amendatory of the bankrupt act of July 1, 1898, and presents the succinct question whether, under the amendatory act, the appointment of a receiver, declared by it to be an act of bankruptcy, applies only to cases arising after the passage of the act, or to cases existing prior to its passage, and within four months therefrom.

That the appointment of a receiver in cases like the one under consideration was not an act of bankruptcy prior to the amendatory act may be conceded, in the light of the current weight of authority on that subject, and the fact that Congress saw fit in the amendatory act to particularly specify such act as an act of bankruptcy. In re BakerRicketson Co. (D. C.) 97 Fed. 489; In re Empire Metallic Bedstead Co., 98 Fed. 981, 39 C. C. A. 372; In re Blair (D. C.) 99 Fed. 76; In re Harper & Bros. (D. C.) 100 Fed. 266; Vaccaro v. Bank, 103 Fed. 436, 43 C. C. A. 279; Davis v. Stevens (D. C.) 104 Fed. 235; In re Varick Bank of New York (D. C.) 119 Fed. 991.

Do the receivership proceedings specified in the petitions constitute acts of bankruptcy under the amended act ? This depends upon whether the act as amended shall be construed as retroactive in that regard or not. The rule of construction by which it is determined whether a statute is retroactive or not is a wise one, and operates to avoid, as far as possible, consequences that would almost inevitably follow from having laws take effect prior to the time of their enactment. Such statutes are rarely passed, because of the injury likely to result from them, and courts do not incline to the interpretation of a

statute that will cause it to become effective prior to the time of its passage.

This doctrine is definitely accepted by the courts of the United States and of this state. Indeed, the presumption is that statutes are intended to operate prospectively, rather than retroactively; and they should be so interpreted, unless the act itself plainly negatives such a conclusion. Shreveport v. Cole, 129 U. S. 36, 43, 9 Sup. Ct. 210, 32 L. Ed. 589; City Railway Co. v. Ćitizens' Railway Co., 166 U. S. 557, 565, 17 Sup. Čt. 653, 41 L. Ed. 1114. The Supreme Court of the United States aptly states this doctrine in U. S. v. Heth, 3 Cranch, 398, 413, 2 L. Ed. 479, as follows: "Words in a statute ought not to have a retroactive operation, unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied." This was followed by the same court in Chew Heong v. U. S., 112 U. S. 536, 559, 5 Sup. Ct. 255, 28 L. Ed. 770, and may now be treated as the settled law on the subject, certainly so far as the federal courts are concerned.

The Supreme Court of Appeals of Virginia, in Crigler v. Alexander, 33 Grat. 677, thus stated the doctrine, citing from Potter's Dwarris' Notes, p. 162: “The general principle deduced from these authorities is that no statute is to have a retrospect beyond the time of its commencement, and this principle is one of such obvious convenience and justice that it must always be adhered to, unless in cases where there is something on the face of the statute putting it beyond doubt that the Legislature meant it to operate retroactively. And, although the words of the statute may be broad enough in their liberal extent to comprise existing cases, they must still be construed as applying only to cases that may thereafter arise, unless a contradictory intention is unequivocally expressed therein;” thus showing that this doctrine is as well recognized in the highest courts of this state as in those of the United States.

Counsel for petitioning creditors insist with great earnestness and much force and ingenuity that the act in question is so clear, and that it was so manifestly the purpose of Congress to have the amended act, as to this new ground of bankruptcy, operate retroactively, that the court should give effect to the act according to its plainly expressed terms, and not by judicial construction give to the same a meaning not intended by its authors. It is true that Congress amended subsection 4 of paragraph 3 of the original bankruptcy act (Act Feb. 5, 1903, c. 487, 32 Stat. 797) by making an additional act of bankruptcy, as follows: “Applied for a receiver or trustee for his property, or because of insolvency a receiver or trustee has been put in charge of his property, under the laws of the state, or the territory, or the United States ;” and by the original act it is provided (paragraph B of section 3, Act July 1, 1898, c. 541, 30 Stat. 546, 547 (U. S. Comp. St. 1901, p. 3422], that "a petition may be filed against a person who is insolvent, who has committed an act of bankruptcy within four months after the commission of such act.”

A literal interpretation of these two provisions gives much color to the contention of counsel for petitioning creditors; and they further re

ly upon the fact, under the original act (paragraph 2, § 71, Act July 1, 1898, c. 541, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3452]), Congress in express terms forbade the filing of involuntary petitions for a period of four months after the passage of that act, and also in terms declared. that it should not affect proceedings theretofore commenced under state insolvency laws; from which they conclude that as no such limitations were made in the amended act creating this particular ground of bankruptcy, although Congress had its attention called to the character of cases the amendment was intended to apply to, and when the same should become effective, section 19 of the amended act (Act Feb. 5, 1903, C. 487, 32 Stat. 801), in which it provided that the amended act should not apply to cases pending when the act took effect, clearly indicated a purpose on their part to make this act retroactive, as to this cause of bankruptcy; relying upon the familiar maxim applicable to the construction of statutes, “Expressio unius est exclusio alterius”—that is to say, that the enumeration on the part of Congress of one class of cases to which the act should not apply indicates the exclusion of the other, and that Congress meant as to the latter class that no limitation should be applicable, and the act became immediately operative.

At first blush this position would appear to be correct; but upon a careful consideration of the original and amended acts, and having in view just what Congress did do in reference to the limitations referred to, contained as well in the original as in the amended act, it becomes quite apparent that a retroactive effect was not intended to be given to this new act of bankruptcy. Clearly, it was not the intention of Congress that the original act should have a retroactive effect, nor that it should apply to insolvency cases then pending under state laws. It in express terms provides against this interpretation, for, although the act became operative from its passage, it forbade the institution of involuntary proceedings for four months; and it should not now be held, when a new ground of bankruptcy is created, that as to that act an interpretation different from what was provided for in the original act should be had, unless the same is positively prescribed, and mere silence on the subject, in the light of the provisions of the original act, will not operate to make the same apply to cases pending at the time of the passage of the act.

The qualifying clause in the amended act (section 19, supra), whereby it was made applicable only to pending cases, does not support the theory contended for, but, on the contrary, negatives it, as it will not be supposed that Congress meant to clearly guard against the new act applying, even to cases then pending in the bankruptcy courts, and as to which the amendments in the main pertained to matters of form and practice, and intended, without expressing it plainly, to have it apply retroactively in matters of substance, to the extent of condemning the transactions of persons innocently entered into, and which might then be the subject of the consideration of other courts, state and federal.

Counsel further insist that it is not necessary for the court to treat the amended act as retroactive in order to decree the receivership proceedings mentioned in the petitions an act of bankruptcy, for the

reason that under the language of the act, “because of insolvency a receiver or trustee had been put in charge of his property,” contemplates a continuous act, and the fact that the receivership was allowed to continue after the passage of the amended act was of itself sufficient to create the act of bankruptcy. This position is clearly untenable; for, if true, every receivership, regardless of when the receiver was appointed, would constitute an act of bankruptcy, provided the same was continued after the amended act aforesaid. Such an interpretation would clearly not be in accordance with the intention of Congress.

From what is said above, in reference to the sufficiency of the acts of bankruptcy alleged in each petition, it will be unnecessary to determine the questions raised by the defendant's answer, as to whether or not the William R. Trigg Company is such a corporation as can be adjudged an involuntary bankrupt; this ground of bankruptcy involving, as it does, a question of fact as well as of law.

The motion to dismiss the petitions in bankruptcy should be sustained, and a decree will be accordingly so entered.


(Circuit Court, D. New Hampshire. June 26, 1903.)

No. 2,328.



A bill which alleges the purchase by complainant from defendant of an entire stock of general merchandise for a lump sum of $20,000, which was paid; that defendant bas delivered about two-thirds of the goods, but refuses to deliver the remainder, and has concealed the same so that complainant cannot obtain possession of them by an action of replevinstates, on demurrer, a cause of action, within the jurisdiction of equity to grant relief by a decree for specific performance, on account of the peculiar circumstances of a purchase for a lump sum, a completion of title of the whole purchase in the purchaser, and his inability to replevy the goods not delivered.

In Equity. On demurrer to bill.
Sargent, Niles & Morrill, for complainant.
Eastman & Hollis and H. J. Brown, for defendant.

PUTNAM, Circuit Judge (orally). We think it is for the interest of both parties that this case should be disposed of now at the close of the arguments of counsel. Whatever our action may be, it is subject to review by the Circuit Court of Appeals, and, in view of the peculiar character of the property involved, the sooner the case is advanced so as to come under the hand of the court the better.

This case comes before us on a demurrer to a bill in equity. The substantial question made is that complainant's remedy is at law, and not in equity. The bill alleges a contract made on the 6th day of October, 1902, and it was filed on the 30th day of January, 1903. The intervening period was so short that, although in a controversy of this character a lack of very prompt action amounts to laches in

equity, yet no specific objection is made on that account. The substance of the case as made by the bill is that the business of the complainant consists in buying entire stocks in trade of persons retiring from mercantile business, and disposing of the same at bargain sales; that the profits derived from such sales are due in large part to the fact that the complainant is able to advertise the placing on sale of an entire stock in trade of an established and reputable mercantile house among people locally acquainted with the facts; that it is essential to the profitable conducting of such sales that the complainant should have possession of the entire stock thus purchased; that in the ordinary course of its business, and for the purposes stated, it purchased of the respondent, as the executor of the will of James S. Butler, the entire stock in trade owned by Butler in his lifetime, consisting of miscellaneous merchandise; that it paid for the same $20,000, which purchase price was received by the respondent as such executor; that the respondent delivered to the complainant about $14,000 worth of the stock in question, and refuses to deliver the balance, and has concealed it; that in consequence thereof it is impossible for the complainant to replevy the merchandise not delivered to it, or in any way to obtain possession of it; that under the circumstances it is impossible for the complainant to ascertain such a description thereof, or of the amount of the same, as to furnish a basis of value in an action at law for damages; that it would not on any terms have purchased any part of the stock or less than the whole; that, in substance, the retention by the respondent of a portion thereof defeats entirely the purpose of the complainant in making the purchase; and that consequently it has no efficient remedy except by a bill for specific performance to enable it to complete the purchase, and secure delivery of the merchandise not delivered as above.

This makes a very peculiar case, for which no precedent has been cited by the counsel on either side. We do not regard the allegations with reference to the business of the complainant rendering it desirable that it should have this entire stock of goods, or the allegations with reference to any loss of profits which would come to it if it did not have the entire stock of goods, as furnishing the basis for a proceeding in equity. The matters which those allegations involve are too speculative and too remote for that purpose. Those are not the kind of uses which are referred to in the authorities as justifying the interposition of a court of equity to enforce a contract with reference to the delivery of personal property. The uses thus referred to as peculiar are such as appertain to heirlooms, family portraits, special machinery designed for a special mill, materials of a peculiar character which cannot be otherwise obtained, and other things of a like class. We cannot regard anything in these allegations sufficient to justify equitable interposition.

Of course, it is necessary for the complainant, whatever might be the peculiarity of the personal property involved, to show that it is secreted in such way that it could not be replevined. The bill sufficiently shows that fact. It is also necessary for the complainant to show that damages cannot be estimated in a suit at common law. But the mere fact that there might be a difference of opinion as to

124 F.-6

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