Page:Federal Reporter, 1st Series, Volume 1.djvu/410

 402 FEDERAL REPORTBB. �of the case referred to the master is unable to see its applica- tion to the present case." �With regard to the executions which were issued between the date of the Thompson & Binns and Kulmer executions and the filing of the petition in bankrupcy the master re- ported as follows : "It waS argued by counsel for the severai adverse executions heretofore referred to that if it should be held that the executioùs of Kulmer and Thompson & Binns were void under the bankrupt law these later executions should be paid out of the fund in preference to the assignee in bank- ruptcy. A number of cases were cited by counsel for and against the proposition. In re Steel, 16 N. B. E. 105, and In re Biesenthat, 15 N. B. K. 228, were relied upôn by counsel for the assignee ; and Stover t. Haynes, 18 N. B. E. 354; Shelley v. Elliston, 18 N. B. E. 375; In re Hull, 18 N. B. E. e, and In re Gold Mountain Mining Co. 15 N. B. E. 545, by the counsel for the adverse creditors. These author- ities are somewhat conflicting, but in the opinion of the mas- ter the question should be determined by the amount of the preferred execution and the value of the property levied upon. The aggregate amount of the Kulmer and Thompson & Binns executions were nearly $1,200, while the value of the goods levied on * * * was about $900. * * • Although the last executions were not in fraud of the bankrupt law, it is not the province of that law to put such creditors in a bot- ter condition than they would have occupied if such law had not existed, or been invoked ; and, as they would have taken nothing if the first two executions had remained unimpeached, it cannot be that they should be paid out of a fund reaUzed from the sale of property which, when levied upon by the later executions, was more than absorbed by the prior executions." �For these reasons the master reported that the fund in the registry of the court should be paid to the assignee in bank- ruptcy. The cause was heard upon exceptions to this report. �Joseph J. Broadhurst, for assignee. �George L. Crawford, for Thompson & Binns. �E. Cooper Shapley, for Kulmer. �Alfred Driver, for subsequent execution creditors. ��� �