IN RllJ SCOTT.
ceedings upon the intedocutory reference, which the clerk hal' allowed, upon notice of taxation by the register. The attorneys for the wit. ness and for the opposing creditor presented their affidavits to the effect that the register agreed to make no charge for adjournments, which alleged agreement the register denies. Counsel for the witness contends that Gillies; as a mere witness, cannot be made chargeable with the register's fees.on the reference until or unless he is found to be wrong in refusin,g to answer, and that the interlocutory reference is for the information of· the court, to enable it, to determine that question. If the reference were purely of the character and for the purpose claimed by counsel for the witness, I should agree with them that it would be the duty of the creditor, as the moving party, to pay the register's fees. But I cannot 80 interpret the order made by my predecessor, upon hearing the matters certified to him concerning the original questions put to the witness and his refusal. The plain meaning and effect of that order were. that the witness must answer the questions, unless he chose to have a reference for further testimony concerning their propriety, no sufficient grounds then appearing to justify the refusal to answer. This gave an to the witness to take such a reference, if he desired, for his own justification and for his own benefit; not a referenoe for the information of the court, upon its own motion, before any decision oould be made upon the matters before it. The matter was decided against the witness, unless he chose to take a reference for further proofs, to justify himself, if he could. It belongs, therefore, to the witness and not to the opposing creditor to pay, in the first instance, the fees upon the reference which was had upon his own election and for his own benefit. If the ultimate decision upon the referee's report should be in favor of the witness, he would he allowed his oosts against the opposing creditor. And he has a right, if he chooses, notwithstanding,the composition, to bring the reference to a legal close, that his rights may be adjudged and protected. The register is prima facie legally entitled to a reasonable compensation for his attendanoes upon the numerous adjournments. If an agreement is relied upon to vary an officer's right to legal compensation, by making it either more or less, and the alleged agreement be disputed, I think the usual rule as to disputed agree-, ments between attorneys sbould be applied, viz., not to regard them unless reduced to writing or entered in the minutes. The register must, therefore, be held entitled, in the absence of any such entry, to a reasonable oompensation.
, As GilliEl'swascalled as a witness merely, and not in' any proceeding by his firm as such; his. refusal to answer was a matter wholly personal. It is of no consequence in whose ultimate interest his refusal to answer was made-whether for the firm's benefit or the bankrupt's, or otherwise. If adjudged in contempt, the punishment or penalty must have been personal, and so also are the expenses of this reference in the endeavor on his part to justify his' refusal. For this reason the taxation of the bill, as against the firm, must be overruled. The views of the court have been expressed on the other points raised, to enable. the parties to adjust the matter between themselves without further application to the court.
JUDSON, Assignee, etc., V.TUE COURIER Co.
(District Court, S. D. New York.
1. AGREElImNTS BETWEEN CREDITORS-PREFERENCES-REV. ST. § 5128.
A transfer, by in failing circumstances, of the greater portion of his assets to, a creditor is not void under section 5128 of the Revised Statutes, as involving unlawful preference of such creditor, where all known creditors, and all whom the grantee suspected were creditors, and all the creditors of whose existence he was bound to know, joined in the arrangement under which the transfer was made; though such creditor thereby secured a preference.
E. H. Penn, for complainant.
Hamilton Gale, for defendant. BROWN, D. J. This action was brought to have declared void a transfer of the effects of Montgomery Queen, a bankrupt, to the defendant, one of his creditors, made on October 27, 1877, and to recover the proceeds, or the value thereof. The proceedings in bankruptcy were commenced by petition of the bankrupt on February 8, 1878, and the plaintiff was thereafter duly appointed his assignee. . In October, 1877, the bankrupt was the OWl1flr of what was known as Queen's traveling circus and menagerie, which he had for several years prior thereto. been engaged in exhibiting about the country. The defendant, a printing company of Buffalo, New York, had been accustomed to do his printing, for which he was usually considerably in debt to them, paying on a running account as was found convenient. In October, 1877, this indeb tedness amoun: edto abou $18,000, but up to that time the defendant had no reason [0 believe