from consenting to the discharge. It would seem that there ought not to be any difficulty or doubt about such a question. It ha,s been settled for a long time. The creditor holds the bond of bankrupt as an evidence of the bankrupt's indebtedness to him. The only security which the act requires him to surrender, before he proves his claim in order to participate in the dividends of the estate, is a. "mortgage or pledge of real or personal property of the bankrupt." See section 5075, U. S. Rev. St. He may retain whatever other security he is fortunate enough to have, and may look to and exhaust all the sources of payment which he holds, until his claim is fully satisfied. Such was the dictum of Lord Chancellor Hardwick, in 1743, in Ex parte Bennett, 2 Atk. 527; and such has been the -uniform ruling of the English and American courts in bankruptcy c%ses from that day to this. Exparte Parr, 18 Ves. 65; English v. Braley, 2 Bas. & Pul. 62; In '1'6 Babcock, 3 Story, 393; In ,.6 Cram, 1 N. B. R. 504; In re Dunkerson, 4: Biss. 253 j In '1'6 Anderson, 12 N. B. R. 502. The bankrupt is entitled to his discharge.
ESTES & CARTER.
(Cweuit (Jowrt, D. Oregon. December 13, 1880.)
FRAUDULENT CONVEYANCE-SUBSEQUENT JUDGMENT..,;..LtEN.-The
statute of Oregon concerning fraudulent conveyances provides, among other things, that every conveyance of any estate in lands "made with intent to hinder, delay, or defraud creditors of their lawful demands, * · · as against the person so hindered, delayed, or defrauded, shall be void." Held, under this statute, that until the conveyance is set aside a mere equitable right remains in the creditor, which he mayor may not enforce, and until he does enforce it the estate is in the grantee, and upon it a judgment creditor acquires no lien by his judgment.-[ED.
In Bankruptcy. Error to the district eonrt. FIELD, C. J. In July, 1877, Levi Estes and Charles M. Carter, 8S partners, composing the firm of Estes & Carter,
IN RE ESTES.
and as individuals, were adjudged bankrupts by the,wstrict court of Oregon. : ,In May of the previous year, 1876, Estes was the owner of an undivided half interest in certain real property in the city of' Portland, in that state; and, being at the time insolvent, he conveyed the same, subject to a mortgage thereon, to one Cole, with intent to hinder, delay, defraud his creditors. Subsequently to this conveyaaice several judgments were. obtained by <lifferent parties against the bankrupts as partners; and one judgment was obtained against Estes individually, aU of which were duly docketed in the cQunty where the property was situated, so as to become a lien upon it, if, after the conveyance, it could be subject to the lien of the judgments. In December. 1879, the conveyance was set aside by the decree of this court in a suit brought by the assignee of the bankrupts; and afterwards the property was sold by him, free from all liens except that of the mortgage mentioned, and the proceeds he nOw holds for distribution. Of the claims proved against the estate of the bankrupts, over $8,000 are against Levi Estes individually, of which $836 are in judgment; and over $11,000 are against the bankrupts as partners, of which $4,361 are in judgments. The assets in the hands of the assignee for distribution are about $6,000, 'all of which ha:ve been derived from the separate property of Estes. The question for decision is whether the judgment creditors acquired by their judgments a lien upon the real property of Estes, so as to entitle them to these assets in preference to the other creditors. .The district court held that they did not acquire a. lien on the property by their judgments, and that the assets must be applied to the payment of the claims against Estes' individual estate, without regard to their asserted liens. The judgment oreditors have, therefore, brought the case to the circuit court on writ of error. The statute of Oregon concerning fraudulent conveyances is similar to that of other states, and is taken substantially from section 5 of 18 Elizabeth. It provides, among other things, that every conveyance of any estate in lands "made with intent to hinder, delay, or defraud' creditors of
their lawful demands, - · · .as against the person 80 hindered, delayed, or defrauded, shall be void." The conveyance in such case, notwithstanding this strong language, is only voidable on the election of the creditor, and is only made void by proceedings to set it aside, or to defeat its operation. It is good as between the parties and passes the estate. If a third party acquire the property from the fraudulent grantee for value without notice, he will hold the property even as against the defrauded creditor. All of which shows that the property after the conveyance cannot, in strictness, be said to belong to the grantor, and as such to fall at once under the lien of judgment recovered against him. The fraudulent conveyance may be defeated by a. direct proceeding to set it aside, or in some states by the judgment creditor proceeding by levy upon and sale of the property, he thus asserting the invalidity of the comeyance as against him under the statute. When this latter proceeding is authorized, it is only from the date of the levy that the creditor's right to the property, as against the fraudulent grantee, can be deemed to attach. But how far and under what circumstances judgments shall be a lien upon property of the debtor fraudulently conveyed to others is a. matter of local law. When that is ascertained efficacy will be given to it in the courts of the United States. In some states it is said that a judgment is a. lien upon the property of a debtor fraudulently transferred. When that is the case, the position for which the judgment creditors here contend will be maintained; but in Oregon the rule we have. stated is the one which prevails, and that is that until the conveyance is set aside a mere equitable right remains in the creditor, which he mayor may not enforce, and until he does enforce it the estate is in the grantee, and upon it a judgment creditor acquires no lien by his judgment. The decree of the district court is therefore affirmed.
'/', Ester II Carter, 3 FED. REP. 134.
'rHE BRIDGEPORT WOOD
CO. v. HOOPER and another.
(On-cuit Oourt, D. Oonnecticut. November 27,1880.)
BAME--CHElHCAL SIMlI.ARITY.-A grant of the exclusive right to nBIl , infusorial earth, silicious marl, as a wood filler, does not also. give the right to use quartz, flint, or feldspar, although it be conceded that each of the five articles is, SUbstantially, silieR,-[ED.
8; J. Gordon, for plaintiff. Morri3 W. Seymour, for defendants. SRIPMAN, D. J. This is a bill in equity, founded upontbe alleged infringement of letters patent dated January 18, 1876, to Nathaniel Wheeler,assignor of the plaintiff, for a "new and. useful process for filling the grain and finishing the faces of woods." In the cabinet.maker's art it is necessary that the grain or the pores of the wood upon the surface should be filled with some material in order that the surface may be smooth, resist moisture, and receive a permanent polish. Divers materials and combinations of materials, such as bees-wax, copaI, starch, pumice stone, plaster of paris, and various gums have been used, but all proved ineffectual. They absorbed the varnish which for polishing, shrank, rolled out, or discolored the wood. What was needed was a non-absorbent, transparent article which would fill the pores and make a hard, smooth surface. The process of finishing cabinet work without the use Of a. filler involved a large expenditure of money and of time. n is described by the patentee as follows: "1 found" (in the Wheeler & Wilson Company's fini.shi.ng department) "the system or process offipishingto be,first, as the work came from the cabinet maker to give it a. hO'avy coat of oil ito let that dry. 8i week or more i then· sand·papet