480

and incidentally, in the way. ofcoUecting that jUdgment, a sale of property was .set aside Jralldulent; 1:)utthe judgment was'.i:n,:no wise bilse'd. upon that Jra)id, bnt, was for, the original account with the credo itdrsof,'l?,aletz; nor was there, noricould there be, anything connectetl with the repleviil. bond judgwent which could be called a fraud. .That was a statutory obligation, provided for in an attachment proceeding, by which a money obligation is substituted £.01' property, in specie, in order t9 release the property to the claimant; . and the judgment rendered on that bond was not on :accoU,nt of the fraudulent conveyance, but because the obligors on that bond had distinctly agreed that if the fraudulent sale should, be set aside, and the property demanded for the purpose of satisfying the original debt, they would either return the property, value,orpay the original debt. It was not open to the original creditors of Paletz, at any time, to assert that their debt was (me in an action for fraud" in which the recovery would represent the injury done by a fraud. Their suit was one based upon a jUBt debt, having its origin back of an.y suggestion of fraud, in which there was sought the incidental· relief of setting aside a fraudulent conveyance. Such a fraudulent conveyance itself, under the law of the state, gave nobody a right to a money judgment in the first instance. It simply rendered the sale void. and .enabled any creditor against wh:Om it was declared v,oid to have it set aside, just as if it never had been made, and to reach the property and subject it to a debt not created at all by the fraudulent conveyance, but created prior thereto, and to obstruct 'Collection of which the ,fraudulent conveyance was made. If the fraudulent vendee had disposed of the property, so that a judgment might be rendered against him for the value of the property, such a judgment w()uld be for' the property, on the ground that, the fraudulent sale. being void, it belonged to his fraudulent vendor, and thl;tt his disposition of it was a conversion. I do not think that I need to elliborate further to make plain my view that, 'c(inceding that the creditor,S no}V objecting are substituted to the'oi'iginaldebt due the creditors of Paletz, with all tM rights, including the l'ight to'make any objection which the original creditors' '. have. made, it seems to. me quite clear, that the objection to the' discharge of the petitioner .in this. case is not wflll founded. The creditors of Paletz, could not come, if tMir judgments had not been satisfied, and say that they had a judgment in an, action for fraud. It wpuld' obviously be a complete. answer to' this. to say that Jhei.r judgment .wl;ts based upon an account for',goods sold and delivered, and, that the jUdgment based upon this right, and notqpon any injury. done to them by it fraud, or their ease had t) lor 0 btaining any money by faJs,e pretense" or for willful ,pI' maliciollsj.riju'ry to their person or property. 't9,. the petiti01l,el"s discharge is not, in my opinion, ,Well taken; an<'Cto so hold be an entire. misapvlic\l'tion of 'the purPose, as. well as the very language, of. the . . upon any fair construction which must be given to ,-I

M

,,'J. " ..,. ....,

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UNITED STATES V. DODGE & OLCOTT.

481

it. Willing as the court is at all times to punish persons, for a contemptible fraud, this must only be done when it is reasonably clear that it is authorized by law. In regard to the other ground of objection to this discharge, such an objection goes to the effect of the discharge, rather than to the right to such a discharge. It is doubtful, therefore, if I have the right, even by consent, to adjudge this question. It appears that the attachment suit pending at Jasper, Tenn., was brought during February, 1898, while the petition for discharge in this case was filed the 16th day of December, 1898. The statute. by clear language, does not affect any right acquired by a proceeding in rem, or partly in rem, at an earlier date than within four months next before filing the petition. So far as 'creditors of Blumberg may have acquired a lien upon property by attachment levied more than four months before the petition was filed, it is not affected by the discharge, and the right to proceed to subject any property validly attached by levy cannot be questioned; and, if the creditors can satisfy their debt in that method, their right to do so is clear, and is not in the least affected by this proceeding. It is only the debt, with the right to proceed against Blumberg in personam, that is discharged. Ordered accordingly. Since writing the above I find U. S. v. Rob Roy, 1 Wood, 42, 27 Fed. Cas. 873 (No. 16,179), and Brown v. Broach, 52 )<Iiss. 536, which seem to settle the question.

UNITED STATES v. DODGE & OLCOTT. (Circuit Court, S. D. New York. No. 2,526. '
CUSTOMS DUTIES-ENFLEURAGE GREASE-EsSENTIAL OIL.

May 18, 1899.)

A concentrated essence produced by the enfleurage process. in which a variety of petroleum was used as the original solvent, is free of duty as "enfleurage grease," within the tariff act of 1894, par, 5G8, and not dutiable, under paragraph 60, as "essential oil."

Appeal by the United States from a decision of the board of general appraisers, which reversed the action of the collector of customs in aS8essing duty upon the merchandise in question. J. T. Van Rensselaer, Asst. U. S. Atty. Albert Comstock, for importers. TO'V:KSEND, District Judge. The mE'rchandise in question was assessed for duty at 25 per cent. ad valorem, under paragraph f)O of the tariff act of 1894, as "e88ential oil," and was claimed by the importers in their protest to be free of duty, under paragraph 5f)8 of said act, as "enfleurage grease." The object of the enfleurage process is to carry the odor of flowers from the place where they grow to the place where the perfume is made. Among the various enfleur'age proeesses is one whereby the flower!' are either brought in eontact with, or in close proximity to, some fatty or gn·asj' matter,
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