855 HYMAN v. CHALltSand others..
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HOPKINS and another v. CHALltSartdothers. (Circuit Court, D. Colorado. " . : '
July 22; 1882:)
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Where, under the laws of the state, a sheriff may appoint a: persoil to perform a ..Ilpepial service, a marshal, under 788 of the Revised has the same authority, and the person so appointed by hi,m is an offi,cer dejacto, and a pers1m served with process by such appointee cannot dispute his authority on the ground that he had not taken the oath, of office, as relluired b! the statutp. relation to the of deputies. .
DEPUTIES-OFFICER DE FACTO:
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On Motion to Quash Marshal's Return·. ,HALLETT, D. J. In the case of Hyman againatChales and others, and Hopkins and 'another against Chales and others, ·defendants ttlove to quash the marshal's rettirnto the summons'oIl"llle that the person who servedthe'summops was specially appointed a deputy to serve it; and that it does not appealr that such person had taken the oath of office as required by the, statute in ielationto the of deputies. " .. Section 788 of the Revised Statutes provides th8ltmarshalsand their deputies shall have the samE! power in eXet;lUting the laws of the United States as and their deputies; in such, st.ate by law in executing the iiLws thetepf. thatnti,der the'laws of the,state a sheriff may appoint a tpperfdnn special as servipg a 'particular no "reeson)s 'perceived for saying that a tnarshal under this :t1ie, same 'authority.. Upon general principles, -ahal may appoint to perforttl ail; lle: !ri'ayappoirit t4afpetBcJD 'has one to perform a patticilla,r service; and taken the oath of' Qffice as pteacribed ia not a 'who' may be affected by. the duty to be' perfornied: . It may 'be' a question' whIch can, be raised 'by the'ma-Mial hilnselfas to "'hether the deputy is properly in his to, pel:form he is an officer de facto, if no nlo1:e:' 'lt not the 'person who may be summonedto dispute hiElauthonty, fbr that reason· j . : I· '.
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856
nDEBAL BJilfOBTER.
SMITH &nd others 1.
'V.
CRAFT and others.July 27, 1882.)
(Oirouit Court, lJ. Indiana.
PREFERENCE-RIGHT OF INSOLVENT DEBTOR TO MAKE, AND
How IT MAY BE MAnE. '. An insolvent debtor, in, the a.bsence of the bankrupt law, has the absolute control of his unencumbered property; an.d he may prefer one creditor to the exclusion of all others. The favored creditor's debt mayor may not be. due, and the preference may be by a judgment, a mortgage, a deed, a trliusfer of securities, or choseshi actIon, the sale of personal property, or the paytnent of money.
Z'o SAME-CONDITIONS AND LJMI'l'A'l'IONS AS TO TIlE RIGHT.
While the motive which 'prompts the debtor to make the preference Is material, the transfer, to be valid,must be in good faith, and in payment of an honest debt;. the debtor cahnot make a preference on such terms as he pleases. The preference must :be abS0luteand:unconditional, and without designs to secure to the debtor &ny personal benefit as against hi&non-preferred crllditors. or to. hiP4llr or p.elay in the coHection of their debts.. Equity favors an equardistrib.ution of a debtor's property among all his credit'ors, and conditional preferences will not be sustained j; e. g., where-the preference is 'the ,:transfer of an entire of goods to ,a single creditor, conditioned on the employment of the debtor, by the preferred creditor, at a fixed monthly salll-ry, as the creditor's agent and superintendent in continuing and carrying on the business formerly conducted by the debtor for himself, it iB invalid becaUlieof such conditJon. . .
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complainants,. . and Baker, Hard. £t Ifendricks, for respondents. GRESHAM, D.;J. The defendant Craft, who was a merchant at Indianapolis, on the ,fifth of April, 1879, executed to his Churchmap, in trust for Fletcher '& Ohurchman, a bill of sale embraQing, his stockof watches, diamonds, jeweity and also lease' upon in which he halt carried on hisb\isiness, one. y.ear of the term not having then expired. This was all the property that Craft owned, except his notes and accounts, which he estimated to be worth $1,000, and some real estate, which was encumbered for as much ,aEl. was worth. Fletcher. & Churchman were bankers, and as such at different times had loaned money to if they would make the loans, and Craft, O:P his. agreement a.nything ocpllrred by which he. wall. unable to pay all his creditors, he would first payor secure'them: It is recited in the bill of sale that Craft is indebted to the bank in about the sum of $31,000, and that the sale is made in ,Payment and satisfaction of this indebtedness, .. and the further consideration that said Churchman shall emHorace Rand £t
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.Reported by Charles H. McCarer, Asst. U. S. Atty.