Page:Federal Reporter, 1st Series, Volume 8.djvu/764

 tS(f TBDERAXi BEPOBTBB. �priority, and the fiffit exeoution being more than sufficient to exhaust the entire fund, and being yoid as against the assignees in bank- ruptey on the ground of procuration, the assignees in bankruptcy should be awarded the fund.. Exceptions to this report were filed by botii the first and second execution creditors. �, B, F. Fisher and Wayne MacVeagh, for C. P. Waller and Mrs. Bellton. ' �' 'A:. M. Burton, for trustees of syndicate judgment. Frank P. Prichard and G. C. Purves, for assignees in bankruptcy, Butler, D. J. The piaster'B statement of facts, and the report generallly, are satisfactory, down to the point where the cross-bill of Von Utaggy v. Galvin is reached and considered. We are unable, how- ever, to adopt bis conclusions respecting this bill. The plaintiffs claim that their ejtecution against A. Benton & Brother should have precedence over fixai o| Mrs. Benton and Judge Waller, on the ground th^t the note and warrant in favor of Benton and Waller, as also the exacutiQn iasued in pur^uance of it, was a fraud on the plaintiflfs' rightiS.' We think this claim is well founded. The object of the syn- didSte iagreement,— eigneii by the parties to this bill,— was to furnish A. Benton & Bjrother,means to^prosecute their business, for the mu- unable to meet.its obligations, and they were the principal creditors. Its' trade was dull and its property unavailable. A sale at the time wonldhaVe resulted in great sacrifice. The money proposed to be fuiniished by these cfeditors; it was boped and believed, wouldenable the debtors to prosecute their business suceessfully, or at least to retain their property until. more prosper.ous times. As seeurity for the money to be. furnished, the creditors were to have a judgment> payable in 10 days after default by the debtors to meet their paper. While the plaintiffs enteredintp the arrangement and advanced their money with no other consideration or prospect of advantage, than that already stated, the representatives of Mrs. Benton and Judge -W^tller seoretly obt^ined ^ note and warrant of attorney for $20,000, by means of which they could sweep away not only the property owned by the debtors at the date of the agreement, and thus defeat its purpose, but also' such additionail property as migbt be acquired by :the money O'btained from the' plaintiffs. That this was a plain violation of the understandingof the parties, — subversive of the only object cbntempiated by, the agreement,— does not seem to admit of doubt. Certainly -not one of the plaintiffs would have advanced a dollar had he been irifermod of the secret advantage obtained by Mrs. ��� �
 * i^^l benefit of the creditor» pniting in the agreement. The firm was