voluntary bankrupts, and therefore has no application to voluntary proceedings, notwithstanding the provisions of § 1, clause 1, and therefore a judgment or lien obtained in a proceeding within four months of the filing of a voluntary petition in bankruptcy would not be affected thereby."1 Under that part of § 67f which provides that all liens obtained against the estate of an insolvent within the four months' period "shall be deemed null and void in case he is adjudged a bankrupt, and that the property thereby affected shall be deemed wholly discharged and released therefrom," proceeds in the hands of a sheriff, and not paid over to the creditor, realized from a sale under execution, are released from the claim of the execution creditor, where the judgment, execution, and levy were all within 41 Re DeLue, 91 Fed. 510, 1 Am. Bankr. Rep. 387; Re O'Connor, 95 Fed. 943, 2 N. B. N. Rep. 90. 42 Clarke v. Larremore, 188 U. S. 486, 47 L. ed. 555, 23 Sup. Ct. Rep. 363, affirming 45 C. C. A. 113, 105 Fed. 897, 3 N. B. N. Rep. 556; Re Huffman, 1 Am. Bankr. Rep. 587; Re Kenney, 95 Fed. 427, on rehearing 97 Fed. 554, 2 N. B. N. Rep. 140, affirmed in 45 C. C. A. 113, 105 Fed. 897, 3 N. B. N. Rep. 556; Re Huffman, 1 Am. Bankr. Rep. 587; Re Kenney, 95 Fed. 427, on rehearing 97 Fed. 554, 2 N. B. N. Rep. 140, affirmed in 45 C. C. A. 113, 105 Fed. 897, 3 N. B. N. Rep. 556; Re Duguid, 100 Fed. 274, 2 N. B. N. Rep. 607; Mohr v. Mattox, 120 Ga. 962, 48 S. E. 410, 12 Am. Bankr. Rep. 330; Re Benedict, 37 Misc. 230, 75 N. Y. Supp. 165. 48 Re Breslauer, 121 Fed. 910, 10 Am. Bankr. Rep. 33; Staunton v. Wooden, 102 C. C. A. 355, 179 Fed. 61; Grant v. National Bank, 197 Fed. 581. 44 Re Bailey, 144 Fed. 214; Re Resnek, 167 Fed. 574; Nelson v. Svea Pub. Co. 178 Fed. 136; Re Weitzel, 191 Fed. 463; Greene v. Montana Brewing Co. 28 Mont. 380, 72 Pac. 751: Johnson v. Anderson, 70 Neb. 233, 97 N. W. 339; Starbuck v. Gebo, 48 Misc. 333, 96 N. Y. Supp. 781; Levor v. Seiter, 69 App. Div. 33, 74 N. Y. Supp. 499, 8 Am. Bankr. Rep. 459, reversing 34 Misc. 382, 69 N. Y. Supp. 987; Farrell v. Lockett, 115 Tenn. 494, 91 S. W. 209. 45 DeGraff v. Lang, 92 App. Div. 564, 87 N. Y. Supp. 78. 46 Levor v. Seiter, 34 Misc. 382, 69 N. Y. Supp. 987, reversed on other grounds in 69 App. Div. 33, 74 N. Y. Supp. 499, 8 Am. Bankr. Rep. 459. four months prior to the filing of the petition in bankruptcy. But And even where the proceeds of the sale have been paid over to the execution creditor, the bankruptcy court may compel their surrender unless held under an adverse claim at the time the petition was filed, as in such case the levy and sale as well as the judgment are avoided by § 67f; and such an adverse claim does not exist where the sale was made after the petition was filed, but before the adjudication, and the judgment creditor and the purchaser had notice of the pendency of the bankruptcy proceedings. keeping in mind that it is the lien that is declared void by virtue of § 67f, and not the transfer, it follows that when the proceeds are held adversely, as having been paid over prior to the filing of the petition in bankruptcy, § 67f does not affect the transaction, and the trustee cannot maintain summary proceedings in the bankruptcy court to compel the execution creditor to refund. But, as before shown, the trustee in bankruptcy is not without remedy in such a case, even in the absence of fraud, as he may resort to plenary suit to recover the proceeds as a voidable preference under §§ 60a and 60b, provided the elements essential to recover under that section are present. Questions with respect to the insolvency provision of § 67f have also arisen. Thus, notwithstanding insolvency of a debtor at the time of the entry of the judgment is an element essential to the avoidance thereof under § 67f, an adjudication of insolvency at that time, made in the bankruptcy proceedings, is conclusive against the judgment creditor. an adjudication of bankruptcy is sufficient proof of the fact of insolvency within the language and intent of the act. 46 Gerflouch So, Lawyer BY S. F. DAVIS of the Indianola (Miss.) Bar OME years ago, the city of Indianola, the county seat of Sunflower County, Mississippi, through her mayor and board of aldermen, enacted certain ordinances declaring, among other things, that from and after date, it should be unlawful for any horse, mule, cow, hog, or other live stock to run at large within the corporate limits of said town. Sometime thereafter, the board of supervisors of the county enacted a similar ordinance to apply to all that part of the county west of Sunflower river and south of the imaginary line running between beat three and beat four on the north. Now, live stock had been accustomed to roam at will over this territory since time when the memory of man runneth not to the contrary, and an attempt on the part of the authorities to enforce these newly made laws met with a stubborn resistance in many places. A great many people regarded these ordinances as unreasonable, unjust, and tyrannical, and as a bold attempt on the part of those in power to snatch from them the liberties guaranteed to them by the state and Federal Constitutions. In addition to the constitutional questions involved, there frequently arose a question of conflicting jurisdiction between the city and county courts. For instance, if a country cow should leave her happy rural home and wander aimlessly into the city limits without an escort, she had violated a city ordinance and was subject to being sold to the highest and best bidder for cash, to appease the majesty of the law which she had so ruthlessly trodden under foot. However, before this could be done, she must first be in the actual custody and control of the lawful and duly qualified municipal cow chaser, and be by him impounded and advertised for sale according to law, and it was not uncommon for a country cow, when accosted by this official, to make a bold dash for liberty and beat him to the corporate limits, where his authority automatically ceased. Her troubles did not necessarily end here, however, because she would then be liable to seizure by any citizen of that bailiwick, with or without a warrant, and haled before a justice of the peace on a charge of violating a county ordinance, and who was not bound to, and who frequently refused, to honor a requisition from the city mayor to surrender her to the city authorities until he had first got his cost and damage out of her owner. Heretofore, ownership in all such live stock as were accustomed to roam at large was somewhat vague and indefinite. Every man who had cattle on the range generally estimated them to be about a certain number, and usually got that number if the supply held out. Under the new order of things, it was differerent. Men now began to seize the cattle supposed to belong to them, and to assert absolute and unqualified ownership over them. It frequently happened that two or more men would claim dominion over the same cow. All things combined were very conducive to much litigation during the first year these obnoxious laws were being forced upon these God-fearing, liberty-loving, freeborn American citizens. I had not been practising law very long then, and I began to make a specialty of these cow cases, and became so proficient in handling them that I became known, especially among the negroes, as the best "cow lawyer" in town, and had I confined my practice to the negroes, and used negro witnesses, and them only, I might have lived and died the idol,of their hearts, excelled in greatness only by Abraham Lincoln himself. But alas! "tis human to err." One morning a neighbor of mine called on me and told me that, while making a short trip in the country, he had found a cow of his that had been gone from home for three years, and that she was in possession of a negro who had refused to deliver her to him on lawful demand, and that he wanted me to take the case, and that he was willing to spend any reasonable sum of money before he would let any d- negro beat him out of his property; that he knew it was his cow; that his mother-in-law had given her to him; that she was a cow that could be easily identified because she had a large scar on one hip where she had lain down in the fire when she was a calf; that on one occasion he had knocked one of her horns off; that on another occasion his bulldog had bitten about one half of her tail off; and that in addition to that, she was marked by a swallow fork in the right ear and a smooth crop and under bit in the left, and that there could be absolutely no mistake about it being his cow that he had seen, and that his wife and motherin-law would testify to the same things he had told me. On his statement of the facts, it looked to me like a good case, and I foolishly accepted his statement of it at par. Had he been a negro, I would not have taken the case, delivered an opinion, or drawn a paper until I had first seen the cow. But in this case I had a writ of replevin issued and served on the defendant within less than two hours after I had been employed. Under the statute, the defendant had the right to give bond and retain possession of the cow until the case was disposed of, which he did. About a week later the case came on for hearing before a justice of the peace. The defendant was present in his own proper person and represented by his attorney, and also had with him nine experienced and well-seasoned "cow witnesses." Court opened at 9 o'clock A. M., and I made a motion for an order requiring the defendant to produce the cow before the court for his inspection, which motion was resisted by the defendant, and the argument for and against it lasted until 12 o'clock, when the court overruled my motion and adjourned for dinner. After dinner we reassembled and the defendant called for a jury, which was allowed him. I opened my case by putting the plaintiff on the stand, and he made a good witness in his own behalf. I then put his wife on the stand and she contradicted him in several material parts of his testimony, and after conferring with his mother-inlaw, I decided not to put her on the stand at all, and rested my case on the testimony of the plaintiff and his wife. The defendant then introduced witness after witness who swore positively that they were personally and intimately acquainted with the cow in question, and had known her from her birth to the present, and that she was unquestionably the property of the defendant. After the argument was concluded, the case was submitted to the jury, who were out the remainder of the day, and then reported to the court that they were unable to agree, and were discharged and a mistrial entered. After three mistrials before the justice of the peace, a fourth trial resulted in a verdict for the defendant, and we appealed to the circuit court. When the case came on for hearing in the circuit court, I renewed my motion for an order requiring the defendant to produce the cow at the courthouse for inspection by the jury, which motion, strange to say, was again resisted by the defendant, but sustained by the court, and the cow ordered produced. As soon as I saw the cow, I also saw my fatal mistake, and was in hopes that she would break loose and run off before the jury saw her, but she showed no inclination to do so, however, but on the contrary seemed to like her surroundings, and seemed especially to like to stand at the front gate where everyone either entering or leaving the court room would have to pass by her. She in no way resembled the cow described in my pleading, except she was minus one horn and about two thirds of her tail. According to my client's own statement, his cow was not less than fifteen years old, and the cow that I had fought so hard to have brought into court as "Exhibit A" to his testimony, proved to be a right young heifer, not over three years old at the most. This cow was on exhibition for three days in the courthouse yard, waiting for our case to be reached on the docket, when on the fourth day, a third party came in and identified her as his cow, filed a claimant's affidavit, which was not resisted by the original defendant, and who recovered a judgment against my client for the cow, and all costs, which amounted to something The Prima Facie Case. How pleasing is the prima facie case But like the glassy face of smoothest ice Beneath the smiles of spring's first sunny skies Or like the ripest fruit of fairest skin 'Tis often poor and treacherous within. Oft times its fair career remains uncurbed Fair harbinger of victory begun 'Tis not uncanny nor a thing to shun Am Natten ase Vol. 20 The associates and co-partners of our loss.--Milton. A comment THE LAWYERS MAGAZINE ¶ Editor, Asa W. Russell; Business Manager, B. R. Briggs; Advertising Manager, G. B. Brewer. Office and plant: Aqueduct Building, ¶ TERMS:-Subscription price $1.50 a ¶ EDITORIAL POLICY:-It is the pur- Published monthly, by The Lawyers Double Proof against Firm and GIVEN a partnership and its members in bankruptcy, may a joint and several creditor have recourse against both the firm and the individual estates in the first instance? For the trifle of two hundred years, this question has received the attention of bankruptcy courts, and appears not to be finally settled, in this country at least. It has been said that the first decision on the question was rendered in 1735 in the English case of Ex parte Rowlandson, 3 P. Wms. 405. Invoking the doctrine that if a person to whom others are jointly and severally bound sues the obligors severally, he cannot thereafter sue them jointly, the court held in that case that the obligee in a joint and several partnership bond, having received a dividend under the joint commission, was not entitled to dividends under the separate commissions, the individual estates being insufficient to pay the respective individual debts. But it seems that the holding would have been otherwise had the creditor held the separate and distinct obligation of one or more of the partners for the same debt, as the court took occasion to distinguish an earlier decision, apparently unreported, in which the creditor was allowed to realize under both the joint and several commissions, where he held the individual bond of a partner for the debt. Even where the individual estate was more than sufficient to pay the individual debts, there was a disinclination to permit the joint and several creditors, in the absence of a distinct individual obligation, to receive a dividend on a parity with the separate creditors; for it was declared that this would be an injustice to the joint creditors (Ex parte Banks [1740] 1 Atk. 106; Ex parte Bond [1745] 1 Atk. 99), inasmuch as the latfooting with him in resorting to the surter were entitled to come in on an equal plus of the separate estate (Ex parte Bevan [1804] 10 Ves. Jr. 107). It is interesting to note that while Lord Eldon intimated in the latter case that he thought that a creditor having a joint and several security ought to have recourse against both estates, he said that the contrary rule was settled upon reasons not very intelligible, and he yielded to precedent. The distinction between a "joint or several" obligation and "joint and several" obligations was applied in other English cases, which are merely cumulative, excepting Re Parker (1887) L. R. |