that Levi & Co. were disposing of their propedy with 'ntent to defraud their creditors. The sheriff took possesl:lion of establishment, seized their entire stock, and turned them into the street. Four days afterwards their notes went to protest, and there is no evidence that they resumed business thereafter. If the firm was not legally extinct, it certainly was stricken with a commercial paralysis. It was unable to meet its obligations as they fell due; it suffered its property to be taken on a charge of fraud which was not denied; it was legally if not actually insolvent. Webb v. Sachs, 15 N. B. R. 168; In re Hauck, 17 N. B. R. 158; H,trrison v. McLaren, 10 N. B. R. 244:; In re Rya,n, 2 Sawy. 411. The case of Otis v. Oullom, 92 U. S. 44:1, relied on by the plaintiffs, can hardly be regarded as controlling. There was in that case no mistake of fact. If a mistake existed it was one of law. After the purchase of the bonds the courts decided that the law did not authorize their issue. There was no guaranty, express or implied, that the law was eonstitutional. The plaintiff knew the facts and chose to take the risk of the bonds being subsequently declared invalid. In precisely the same manner the defendant here took the risk of aU subsequent infirmities. The questions in' this action are by no means free from pe,rplexities and doubt. The weight of authority, however, seems to sustain the positions taken by the defendant. It follows that judgment should be entered awarding the money in court to the defeudant.
«(Jireuit (Jourt, 8. D. New
M, §2504, .· CONSTHUED. . ' The words "'the whole qulintity'" (schedUle M, § 2504, Rcl>. St.) refel',td mel'chandise shipped by ohe consignol' ,from one' place and, to thepsrticular kind of fruit damaged, and not to, the whole invoice aggregating sevllral, varieties fruit,
Memorandrltn'bf Decision. ", . Mr. Jones and Mr. He'ath, for plaintiff,' , Mr.:'Jamea, Atty;, for defendant· . COXE, J., I thinlt the plaintiff is entitled to recover;' :;The fair' and i'eason-able interpretation of the 13ta:tutE1is the one recently adopted
IN BE WERDER·.
by the treasury department. The words lithe whole quantity" are now construed "as referring only to the merchandise shipped by one consignor from one place, and to the particular kind of fruit damaged." I have examined with care the authorities cited, and am inclined to follow the decision of Ex-Attorney General MacVeagh, in the Pohl Case, (reported in Decisions of the Treasury Dept. Document No. 172, page 239,) as the latest expression on the subject. As I concur, not only in the conclusion reached by him, but also in the reasoning of the opinion, I have thought it unnecessary to enter into any extended discllssion of the question involved, which is precisely similar in both
(Circuit (Jourt, D. NevJtJ1'86l1. March 28,.1883.)
BANJrnUPTCT-AesETs-MEMBERBlIJP IX PRonuCB EXOHAlfGB. Membership in a produce exchange is property which.PUlel to the aalpee ,in bankruptcy as assets of Ule debtor'. estate.
Bill of Review. A. Marks, for bankrupt. H amUton Wallis, for assignee. McKENNAN, J. The bankrupt is a certificated member of the New York Produce Exchange, 'and' thE! only question presented by his bill asset, available is, whether his membership in that institution'is to his creditors, through his assignee, or not. If it is, the order made I by the district court, of which the bankrupt complains, was regard the question as conclusively settled by the opinion ,of the supreme court in Hyd6 v. Wood8, 94 U. 8. 523. Mr. Justic'e MIlILER, speaking for the court, there says:
"There can be no dOlibt incorporeal right Feun hadto this Beat when,be, became bankrupt ,w.as p,r.9perty, and the sum realized by ,the assignees from its sale property. N<I1' do w" think tbere can be any reason to doubt that, if he had made no such assignment, it would bave passed subject to the rules of the stock board, to bisassignee in bankruptcy, and'that, if tbere had been left, intll& han<fs, defendantsany,balance, after payiHg the debts due to the members Oil, t)lfi mjght hav:e, been recovered by, the assignee." ',' ,,
. '.' : . " ,: " ,,' f,
, It is
contest ,the a1,lthoritaMveness¢ this tha.,( it was tot4e the .11