IN RE ARNOLD.
ever: the company cannot repudiate the fraud of its agent, and thus escape the obligations of a contract consummated thereby, merely because Kister as;cepted in good faith the act of the agent without examination." "Plaintiff had a right to rely upon the assumption that his policy would be in accordance with the terms of his oral application. If the defendant desired' to make it anything different, it should, in order to make it binding upon plaintiff, under the authorities in this state, have called his attention to those clauses which differed from the oral application." Gristock v. Insurance Co., 87 :\Hch. 428, 49 N. W. 634; Bennett v. Insurance Co., 106 N. Y. 243, 12 N. E. 609.
Upon the law as stated, and a review of the evidence, it is clear that questions of fact were presented which should have been .submitted to the jury. The judgment of the circuit court is therefore reversed, and the cause remanded, with instructions to grant a new trial.
In re ARNOLD. (District Court, D. Kentucky. June 8, 1899.)
BANKRUPTCY-DISSOLUTION OF LTENS-" PERMITTING" ATTACH}IENT.
Under Bankruptcy Act 1898, § 67c, providing that an attachment in a suit begun within four months before the filing of a petition in bankruptcy against the defendant shall be dissolved by the adjudication in bankruptcy "if it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference," the defendant "peo:nits" the creditor to obtain such lien if he suffers grounds for an attachment to arise, ,and does not in good faith prevent or resist the creditor's proceedings; and it is not necessary that there should have been, on the part of the defendant, any positive act of consent or assistance in its procurement.
In Bankruptcy. On review of ruling of referee in bankruptcy. William Marble, for claimant. Ward Headly, for bankrupt. EVANS, District Judge. In this case the voluntary petition was filed on the 24th day of February, 1899, and the petitioner was adjudicated a bankrupt on the 4th day of )farch thereafter. At the first meeting of creditors, on the 16th day of March, Phil. Foerg filed a claim for $766.66, which hf> had proved 3S a preferred claim, upon the ground that it was made such by a lien which had been created by the levy of an attachment from the state court, obtained on the 17th of February, 1899. 'Phis being witbin four months before the adjudication in bankruptcy, other creditors resisted Foerg's claim to priority; and, the matter coming up before the referee, he decided against Foerg's claim of preference based upon the lien under his attachment, and held that he was entitled only to participate in the assets of the' bankrupt as an ordinary creditor. From this ruling of the referee, Foerg has prosecuted a petition for a review. The facts do .not fully appear from the report of the referee, but in the brief filed in the behalf of Foerg this statement is made, namely:
,"It is admitted by Foerg, the creditor, that his suit in the state court was commenced, and his attachment was obtained by him and levied, within four months before the filing of the petition in bankruptcy, and also that the attachment was ohtained while the defendant was Insolvent, and that its existence and enforcement will work a preference."
94 FEDERAL REPORTER.
Clause c of section 67 of the bankrupt act, so far as the same need becol1'Sidered on this hearing, is as follows:
"A lien. created by or obtained in or pursuant to any suit or proceeding at lllw or'in. equity, including an attachment upon mesne process or a judgment by confessfon,'whlch 'was begun against a person within four months before the filing of a: petition in bankruptcy by or against such person shall be dissolved by the adjUdication of such person to be a bankrupt if it appears that said lien was obtaineddand permitted while the defendant was insolvent and that its existence will work a preference."
The attachment having been levied within four months next preceding die adjudication i'nbankruptcy, the lien claimed by the creditoras haVing been thereby secured was dissolved, unless a proper construction of the clause of the bankruptcy law just quoted otherwise requires. As shown, it is admitted that the bankrupt was insolvent when the lien was obtained, and that its existence will work a preference; but it is contended on behalf of the creditor that the lien must not only have been' obtained, but that it must have been "permitted" by; ,the bankrupt, by some positive act. of consent or assistance in its 'procurement, in order to work that result. The court does not sounuerstand the law, but is of opinion that the word "permitmust be considered. ',as' synonymous with ted," in the, section "suffered." :a'he bankrupt the lien to; be obtained when, by not paying the debt, and otherwise, qe suffere(i or allowed or 'perwitted the grounds for the attachment to arise, and when he did not in good fa,ith prevent, or at least resist, the effort of the' creditor to obtain the Hen by means of the As His admitte(i that the bankrupt was insolvent at the time the lien' was obtained, and that the resuU of the existence of the lien would be a to Foerg, the views of the referee were correct, and, his ruling is ap' proved.
, (Ci).'QWti Court, of .A,.ppe.aIs, Second, Circuit. May" 25, 181)9.) ,. ;
,CarQo.q. sticks, 36 inches long, intended for ultimate uS,e ill light· " lng, reqUire to 'be cut' into suitable the. end.s of. which :m.ust or ground;' HMote 'tlie't can be so used, 'are dutiable under " paragraph 97 '6f the tarifl l 8JCt bf1897, ,as :articles or' wares COJ;llposed, wholly of :carbon; not. flpeciallyi Pj:,ovi(lildfor" and not under paragraph ,98, as car. ',i bons lighting, :'
,Appeal fr.0lll the Circulc Oourt df fheUnitedStates' for the Southlof' :ijewYol'k.! . ' ,',.' " , .' .. This 'clomeshereuptmappealfrom adecisjon of tile circuit court, ,Sou:thern, diStrict :l-Vew York, reversing' a 'decision of the 6oardof which reversed a,'Uecision of the colof York touching theassess:rnent of duty upon certainjlllported merchandise. The appear ,in the opinion.