Page:Federal Reporter, 1st Series, Volume 8.djvu/765

Benton and Judge Waller. As matters stood at the outSet the cr;ed- itors were on an equality. The firm being insolvent, any pioceeding to secure preference would have placed itsproperty in bankruptcyi, M'aere all wOuld have shared equally. It cannot be Bupp0§0d ii^^i the plaintiffs wouldnot only riskthis advantage, by tyingtheii; ihpida,; but also wouid transfer to the debtors a considerable amount of theip own property to be Bwept awfty by Mrs. Benton and Judge -Waller, at pleasure. That it was fully and distinctly understood that.the debtr ors were to be kept clear of all other juagmenta than that given to tljie eyndicate creditors appears as plainly f roni the conductof the parties at the time the agreement was entered into, and subsequently, a? it does from the motives of the parties and the object of the traosaci tion, just referred to. The inaster finda that — .j �"Promises were made by the debtor immediateiy befbre anct about the tiiu* of the execution of the agreemeint, to certain of the patties ttereto, that no other judgment should be given; and thatnotice should begiven if judgmenfca were likely to be obtaiaed; and: that the. judgment a^out to Jje fgiyen tp the syndicate should be a lien on the personal property as well as upon the real estate." , �It is unimportant that }lia. Benton and Judge Waller were not present (as themaster finds) when these, promises werei obiainfed, They were procuied for the joint benefit of all the syttdioate-Oredifci ors, — -who were acting togethef for theit mutual protection,— -each one to a certain extent representing his fellows in the itransjaction. These promises are here referred to, however, as. One of; the surround^; ing circumstances, simply/in the light of whichithe iwiitten agree- ment is to be read. Again, when Charles Benton was asked tojsign the note and warrant in favor of Mrs. Benton and Judge Walier, be at first declined, on the ground that it would be ivrong t© 40 so; ^and only consented subsequently, at the instance of his brother, whoagreed that it might be done, "provided Mrs. Benton [his wife] was incbided." When the syndioate creditors disoovered that other jtidgraents; to a small amount, existed against the debtors, they imjdaediately com- plained of it as a violation of the agreement; and rio one oonueoted with the transaction suggested that this was not a just cause of oomplain^;. The representatives of Mrs. Benton and of ; Judge i Waller were pres- ent when the complaint wae madoy and plainly ackilQWlpdged its jus- tice. The plaintiffs were not then aware of the note and, warrant given for $20,000. Regarding themaelves as unjustJjC/d.ealt with, however, because of the existence of the small judgments, and of the debtors' failure to furnish a slatement, as promised, respecting the ��� �