rosy view. I think he has not lost his right by any delay to a greater extent than can be saved on the terms imposed upon him. He must pay back the $3,000; he must pay the interest on it, of course. Then, with regard to the depreciation in the value of the patent during the two years and two months. But there is just. a single circumstance in the case that I think is a complete answer to that, and that is the letter of March 7th, written by Mr. McCrea to Mr. Lederer, in which he positively declines any kind of settlement based on the return of the patent. If he had done what equity required him to do, then he would have exchanged and got his patent back; and he would have been out of pocket just its depreciation in two months, or less than two months. He did not do it, but refused, and Mr. Lederer ought not to be compelled to make any compensation for the depreciation, if any, in the value of the patent due to the lapse of time. I do not want to say anything to injure the value of this patent. Mr. McCrea says it is a very valuable thing; he thought so then, and he thinks so now-worth now as much as it ever was. The depreciation, I repeat, of the value by that lapsz is Mr. McCrea's own loss, and he must father it. Now, just one other thing as to the terms, and that is the cost of the judgment and proceedings thereunder, which was recovered against the trustees. That, I think, Mr. Lederer must bear, and for the simple reason that I stated awhile ago that he ought to have filed his bill at once, instead of putting up his trustees to fight. I won't say that there are not two sides even to that question, because Mr. Lederer was trying to find some plan by which he could dispose of the patent without loss, and he was entitled to a reasonable time for that. But I do not think that is sufficient to overcome the other consideration. The taxed costs of the judgment against the trustees, I think, he must pay, and I come to that conclusion with some regret, but still I think he must pay them. The defendant must pay the costs of this suit and a reasonable counsel fee, and that must come out of the $3,000 and interest which he must pay back. I think the defence was entirely unjustified, but whether it Empire State Trust Co. v. Fisher Co. 67 Eq. was or not, the decision is in favor of the complainant, and the statute entitles him to counsel fee, to be fixed by the court, and I think he is entitled to it. Mr. De Yoe-Mr. McCrea paid out insurance money to keep up this policy. The Court-He must have that back. The decree must provide not only for the cancellation of the mortgage, but Miss McCrea must do all acts necessary to have that policy vested in the name of Mr. Lederer. I do not suppose there will be any trouble with the insurance company. Whatever formalities Miss McCrea must perform in that regard she must perform. EMPIRE STATE TRUST COMPANY V. WILLIAM F. FISHER COMPANY et al. [Submitted December 24, 1903. Decided February 20th, 1904. 1. A company was indebted in the sum of $81,200. It owned a brickproducing plant appraised at $100,000, and was capable of earning on the amount at which it was capitalized ($185,000) a fair profit. The plant had cost over $200,000, and could not be replaced for $250,000. The company had on hand a quantity of unburned bricks, later sold for $15,000. It also owned village lots worth $25,000. On its failure to pay a creditor it executed a mortgage to secure him. This creditor, before becoming such, investigated the affairs of the company and believed that the company was solvent. About a month after the execution of the mortgage the company was adjudged a bankrupt, and the trustees could secure only $75,000 for the property.-Held, that the company, at the time of executing the mortgage, was not insolvent, within Bankrupt act of July 1st, 1898, chapter 541, section 1, paragraph 15 (U. S. Comp. Stat. 1901 p. 3419), providing that a person shall be deemed insolvent when the aggregate of his property shall not, at a fair valuation, be sufficient to pay his debts. 1 Robbins. Empire State Trust Co. v. Fisher Co. 2. A solvent debtor giving a mortgage to secure a creditor does not give a preference, within Bankrupt act of July 1st, 1898, chapter 541, section 60 (30 Stat. p. 562; U. S. Comp. Stat. 1901 p. 3445), specifying when a person, "on being insolvent," shall be deemed to give a preference. 3. The taking of security by a creditor for money presently or previously loaned is not evidence that the creditor believes that the debtor is insolvent. 4. The words "for a present consideration," in Bankrupt act of July 1st, 1898, chapter 541, section 67 (30 Stat. p. 564; U. S. Comp. Stat. 1901 p. 3449), providing that liens given or accepted in good faith, and not in contemplation of or in fraud on the act, "and for a present consideration," shall not be affected by the act, do not render invalid a mortgage to secure a pre-existing debt. On final hearing on bill, answer and proofs. The complainant filed a bill to foreclose a mortgage given to it by the William F. Fisher Company, a corporation, upon property in Middlesex county. It made several holders of subsequent encumbrances parties thereto. Among them, and next in order of priority, was the Broadway Trust Company, which held, and holds, a mortgage for $15,000. Next below that mortgage are two to William F. Fisher and one to Frieda Hart. Subsequently to the giving of these mortgages the Fisher company was thrown into involuntary bankruptcy, and Messrs. Samuel F. Wylie and Frederick Weigel were appointed trustees. The Broadway Trust Company filed no answer at first, but gave notice under the rule that it desired to have its mortgage reported upon. Subsequent to this Wylie and Weigel, the trustees, applied for and obtained leave to appear as parties defendant and to answer. By their answer they attacked the validity of all the mortgages above mentioned, on the ground that they were given under circumstances which rendered them voidable at the instance of the trustees. The issue between the trustees and the complainant as to its mortgage was brought to a hearing and determined in favor of complainant shortly before June 18th, 1903, and decree made for foreclosure and sale. Empire State Trust Co. v. Fisher Co. 67 Eq. The execution on that decree was stayed by order of the federal court. In the meantime the Broadway Trust Company filed its answer to the bill of complaint, which answer included an answer to so much of the answer of the trustees as attacked its mortgage. An issue in this irregular manner was made up between the Broadway Trust Company and the trustees in bankruptcy and brought to a hearing November 17th and December 2d, 1903. Mr. Sherrerd Depue and Mr. Ira Leo Bamberger (of New York), for the Broadway Trust Company. Mr. Robert Adrain, for the trustees. PITNEY, V. C. The mortgage of the Broadway Trust Company was made and executed September 10th, 1902, and recorded September 13th, of that year, to secure the sum of $15,000, with interest, in three months from that date. Three days later the Fisher company executed three other mortgages: one to Fisher, its president, to secure an amount not exceeding $10,000; another to Frieda Hart, to secure an amount not exceeding $10,000; and a third to Fisher, to secure an amount not exceeding $20,000. On October 4th, 1902, two small judgments were docketed against the Fisher company in the Middlesex common pleas. Shortly after that a creditor took proceedings in bankruptcy against the said company in the federal court with the result that on October 27th, 1902, it was duly adjuged a bankrupt. I shall first state the facts as I find them bearing on the question of the validity of the mortgage here in question. The William F. Fisher Company was the owner of a valuable tract of clay land, of which two hundred and fifty acres were practically available for making brick, situate at and near the village of Sayreville, on the south side of the Raritan river, between New Brunswick and South Amboy. It also owned a proper proportion of sand-bank land, producing sand fit for use in moulding bricks. It also owned a large and complete brick 1 Robbins. Empire State Trust Co. v. Fisher Co. manufacturing plant, furnished with the best modern machinery, located on the banks of the river, with wharfing which enabled it to float its bricks to all the water-front towns and cities in the neighborhood. Its plant was capable of producing over thirty million bricks a year. Besides, it had the reputation of making a superior article of common building brick, known as "Adamantine Brick," which enabled it to find a ready market. This plant had cost over $200,000 and could not be replaced for $250,000. The average profit on the bricks manufactured and sold was $1 per thousand, and it had been manufacturing and selling from twenty million to thirty million a year. It was capitalized at $185,000, of which $156,000 were owned by William F. Fisher and the balance by friends and relatives of his; and of that balance he controlled a considerable portion. by having advanced money upon it. The only encumbrance upon this property was a mortgage for $24,000 to one of the New Brunswick banks. The president of the company, Mr. William F. Fisher, was himself the owner of considerable real estate in New Brunswick and elsewhere in Middlesex and Monmouth counties, most of it unincumbered, and he was reputed to be a man of wealth. Some time previous to May, 1902, he had been drawn into some outside speculative operations, apparently through the influence of one Max Hart, and although he was receiving, and was credited on the books of the company, with a large salary-for the last year or two, $10,000-he had, at the date of the mortgage here in question, overdrawn his account to the extent of about $60,000. There was also a debit account on the books of the company against Max Hart to the extent of $25,000. All the foregoing appears by the evidence of Mr. Wylie, oneof the trustees, who had been for years a trusted and trustworthy employe of the company and thoroughly familiar with its affairs. In May, 1902, Mr. Fisher and Mr. Hart being, as I have said, engaged heavily in transactions outside the brick business, applied to Mr. Morris May, president of the Broadway Trust Company, for a loan. Mr. Hart had been introduced some two or |