Page:Federal Reporter, 1st Series, Volume 3.djvu/904

 BBADLEY W; ADAMS' EXPBBSS 00, "097 �abfeoîutfely restrictive, and that when an aJvantageous sale had been made, in entiregoodfaith, thei-e was power in the court to confirm the sale afterwards as if it had been previ- ously authorized. An unreported case of this sojrt, decided many years ago, was brought to our notice by counsel. TwO cases may be cited from other circuits which follow the same line of decision : Lee v. Franklin Savings Inst. 3 N. B. E. 218; Re Moller, 8 Ben. 626, affirmed 14 Blatchf. 207. In the judgment of affirmance the late able circuit judge of the second circuit say s: "The statute is not model in its pro- visions, but substantial. " 86 Judge Hoffman once said that the bankrupt act îs not intended to be a practice act. The case in New York v?as stronger for the creditor than this case, but it decided that a literal compliance with the statut is was not necessary. It must be held to tûddîf^, to some extent, the very general and sweeping language used in a decision in the same circuit in Re Herrick, 17 N. B. E. 335. �In the present case there appeared to the secured creditors to be an opportunity to realize a considerable sum from a security absolutely worthless, and they had no good reason to believe that it would last. If the district court had been applied to, and had chosen to act at ail while the case was before the circuit court, it would undoubtedly have permitted the sale. We think it doubtful, however, whether either the court or the assignees would have taken the responsibility of acting ; for not only was it uncertain whether the railroad company could be made bankrupt, but also which of three courts would have the settlement of the case. �Besides, the statute contemplates that the assignees will be appointed speedily, and it would appear from the context of section 5075 that a sale is to be ordered by the court only when the assignees and the creditor cannot agree. This is Judge Wallace's opinion, as expressed in Re Herrick, 17 N. B. E. 335. The case of a necessity for a sale before the assignees are qualified and acting, appears to be a case omitted from this section of the statute; so that if the court at such a time should order a sale, which we have no doubt of its power to do, yet such a sale would not be a sale within the �v.3,no.l5 — 57 ����