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act. No provision is contained therein protecting payments made to the bankrupt subsequent to the decree and after the title to his estate had vested in the assignee, but such cases were left subject to the legal effect of the assignment, which, operating as a general transfer of all the estate of the bankrupt at the date of the decree, would seem to invalidate any such payment.
I am unable to discover any exception, express or implied, in the act of 1867, or its supplements, in favor of a debtor who has paid his debt to the bankrupt after the time of filing the petition against the latter. This, as already observed, is the period to which the assignment under that act relates, and at which the title to the bankrupt's estate vests in the assignee.
From the absence of such exception in the statute, and upon the principle recognized by Congress as above stated, the conclusion appears to me to be unavoidable that the claim of the assignee, duly appointed, would prevail against the debtor, notwithstanding such payment, though it was made bona fide and without knowledge of the bankruptcy proceeding. This doctrine, I find, is supported by an opinion of the supreme court of Pennsylvania, given in 1870. (See Mays vs. Manufacturers' National Bank, 64 Penn. St., 74.)
The same principle is applied by the courts of England in construing the bankrupt-laws of that country. There the transfer of the bankrupt's estate, by operation of those acts, relates back to the act of bankruptcy. This relation was originally founded upon the provisions of the earliest of their bankruptcy acts, namely, the 34 and 35 Hen. VIII, chap. 4, § 1, and the 13 Eliz., chap. 7, § 2. In these two statutes there was no exception inserted; all were bound thereby: bona-fide purchasers of lands and goods, though for a valuable consideration and without notice, debtors who had paid the amount of the sums due from them, and creditors of the bankrupt to whom the amount of debts owing to them from the bankrupt had been paid, though without notice-all were included, (see Garland vs. Carlisle, 4 C. and F., 786.) But the legislature has, from time to time, by new statutes, cut down the relation in particular cases; as, first, in the case of payment of debts to the bankrupt before notice of an act of
bankruptcy, (1 Jac. I, chap. 15;) next, in the case of the sale of real property by the bankrupt, where the commission was not sued out within five years after the secret act of bankruptcy, (21 Jac. I, chap. 19;) again, in the case of payments by the bankrupt to creditors for goods sold, (19 Geo. II, chap. 32;) and again, in the case of conveyances, contracts, and other dealings and transactions with bankrupts, bona fide made and entered into more than two calendar months before the date and issuing of the commission, (46 Geo.-III, chap. 65.) "The very circumstance of these partial restrictions of the general rule of relation to the act of bankruptcy," remarks Lord Chief-Justice Tindal, in the case above cited, "establishes beyond doubt two propositions: first, that no consideration of hardship in the individual case will be sufficient to exempt it from the reach of the statutory relation; and next, that nothing short of the power of the legislature itself is sufficient to relax the severity of the former statutes."
I may also add that under the English bankruptcy law now in force (the 32 and 33 Vict., chap. 71) any payment made. in good faith and for value received to any bankrupt before the date of the order of adjudication, by a person not having at the time of such payment notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication, is protected by the statutes.
My opinion, therefore, is, in view of the foregoing considerations, 1st. That a payment made by a debtor to a creditor who has committed an act of bankruptcy, and against whom proceedings in bankruptcy have been instituted and are pending, but who has not yet been adjudged a bankrupt, will not be valid in the event of an adjudication of bankruptay in such proceedings if the payment transpired subsequent to the filing of the petition therein; 2d. That a payment made by a debtor to a creditor who is known to have committed an act of bankruptcy, but against whom proceedings have not at the time been taken, is valid, so far at least as the existing bankrupt-laws are concerned.
I am, sir, very respectfully, your obedient servant,
Hon. Wм. A. RICHARDSON,
Secretary of the Treasury.
Distribution of the Proceeds of Forfeitures, etc.
DISTRIBUTION OF THE PROCEEDS OF FORFEITURES, ETC. From January 31, 1873, to April 1, 1873, a vacancy existed in the office of surveyor of the port of New York, during which period B., a deputy surveyor of the same port, performed the duties of the office of surveyor. B. claims so much of the proceeds of fines, penalties, and forfeitures incurred under the customs-laws within that period as would have been distributable to the surveyor had there been no vacancy in the office. Held that the claimant does not come within the description of persons to whom distribution of such proceeds is, by the statute, (the 1st section of the act of March 2, 1867, chap. 188,) authorized to be made, and that the claim has, therefore, no validity.
If that portion of the proceeds mentioned, for which claim is made by B., remains undistributed, it should be divided equally between the collector and naval officer appointed for the port or district of New York during the period above stated.
DEPARTMENT OF JUSTICE,
SIR: I have considered the question submitted by you to me in your letter of the 27th ultimo, "as to the disposition to be made of the distributive share of the proceeds of fines, penalties, and forfeitures which would have been distributed to the surveyor of the port of New York during the space intervening between the time at which Mr. Cornell's resignation took effect and the time of his successor's entry upon office."
The period here referred to is, as I understand, from the 31st of January, 1873, to the 1st of April, 1873, during which a vacancy appears to have existed in the office of the surveyor of that port.
Claim is made by Mr. James L. Benedict, who was a deputy surveyor at the same port during the same period, for so much of the proceeds of fines, penalties, and forfeitures incurred under the customs-laws, between the dates above mentioned, as would have been distributable to the surveyor had there been no vacancy in the office. This claim is based upon the alleged facts that during that time Mr. Benedict "performed the duties and exercised the authorities of surveyor of the port of New York, and was so recognized, not only by the collector and naval officer, but by the Treasury Department."
Distribution of the Proceeds of Forfeitures, etc. By the 1st section of the act of March 2, 1867, (14 Stat., 546,) it is provided that, after making certain deductions from the proceeds of fines, penalties, and forfeitures incurred under the customs laws, the residue thereof shall be distributed as follows: "One-half to the United States; one-fourth to the person giving the information which has led to the seizure or to the recovery of the fines or penalty, and if there be no informer other than the collector, naval officer, or surveyor, then to the officer making the seizure; and the remaining one-fourth to be equally divided between the collector, naval officer, and surveyor, or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred, or if there be only a collector, then to such collector," &c.
The right to a distributive share of such proceeds depends entirely upon the above provision-upon whether the claimant comes within the description of persons to whom distribution is thereby authorized to be made. Now, the claim of Mr. Benedict rests on the ground, not that he was ever ap pointed surveyor, but that he performed the duties of the office of surveyor. This, I think, does not bring him within the description contained in the statute. The scheme of distribution there expressly names the surveyor appointed for the district among those entitled to participate in the proceeds; but one who is provisionally discharging the duties of the office of surveyor during a vacancy therein does not, in my opinion, answer that description, nor, indeed, any other mentioned in said scheme. From this point of view, the conclusion is unavoidable that the claim referred to has no validity.
The inquiry now arises, How should the proceeds to which that claim relates be disposed of? It will be found, upon examining the statute, that, after awarding one-half of the distributable proceeds to the Government and one-fourth to the informer or seizing officer, it provides that the remaining one-fourth shall be "equally divided between the collector, naval officer, and surveyor, or such of them as are appointed for the district in which the seizure has been made," &c., and the question under consideration concerns the "remaining onefourth." There would seem to be little ground for controversy as to the meaning of the provision just quoted. The
Police Board of the District of Columbia.
first branch of it assumes the existence of a collector, naval officer, and surveyor, and makes an equal distribution of the one-fourth between them. But the second brauch of it makes a similar division between "such of them as are appointed for the district," and is by its terms applicable to and was probably designed for the case where only two of those officers have been thus appointed. So that, under the latter branch of the provision, if only two of the officers named happened to be appointed for any district, an equal division of the entire one-fourth is required to be made between the two.
I see nothing in the law to warrant the conclusion that the words "or such of them as are appointed" in said act apply only to those districts where less than three of said offices are established; on the contrary, the idea of an appointment to an office generally presupposes the existence of such office. The plain and natural meaning of the statute seems to me to be, that where there is a collector, naval officer, and surveyor, holding their respective offices by regular appointment, the one-fourth is to be equally divided between them; but if there be only two of them holding by regular appointment, then the said one-fourth is to be equally divided between them; and if there be no other than the collector, then the whole goes to him. Assuming, then, that the proceeds claimed by Mr. Benedict, and to which the question submitted by you refers, remain undistributed, I am of the opinion that they should be divided equally between the collector and naval officer appointed for the port or district of New York during the period above stated.
I am, sir, very respectfully, your obedient servant,
Hon. WM. A. RICHARDSE
Secretary of the Treasury.
POLICE BOARD OF THE
DISTRICT OF COLUMBIA.
By the 3d section of the act of July 23, 1866, chap. 215, which remains in full force, no valid license for the sale or disposal of intoxicating drinks within the District of Columbia can be issued without the approval of the Board of Metropolitan Police.