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CASES
ON THE LAW OF
BANKRUPTCY
INCLUDING THE LAW OF FRAUDULENT
CONVEYANCES
Selected and Arranged By
EVANS HOLBROOK and RALPH W. AIGLER
Professors o( Law in the University o( Michigan
CHICAGO
CALLAGHAN AND COMPANY
1915
1915'
COPYRIGHT 1915
BY
CALLAGHAN & COMPANY
PREFACE
This collection of cases is the result of several years' work in
the class-room by both of the editors. It is obvious that there
are difficulties in the teaching of a subject based entirely on a
statute, especially in the years immediately following the adop-
tion of the statute, when its provisions have not yet been passed
on by the courts ; now, however, a considerable body of authorita-
tive judicial interpretation of the Bankruptcy Act of 1898 has
grown up, and it is hoped that the cases contained in this volume
will serve to show the effective structure that has been con-
structed on the foundation of the Act.
Omissions from the opinions reprinted are indicated by the
use of asterisks.
EVANS HOLBROOK,
RALPH W. AIGLER.
Ann Arbor, January, 1915.
671021
CONTENTS
CHAPTER I
JURISDICTION
** PAGE
§ I. Of the Subject Matter 1
A. Federal Legislation 1
1. Constitutional Power 1
2. Constitutionality of Present Act 1
B. State Legislation 11
1. Effect of National Act 11
2. What State Laws are Suspended 12
§ II, Of Persons 42
A. Territorial Jurisdiction 42
1. Natural Persons 42
2. Partnerships 51
3. Corporations 54
B. Who May Become Bankrupts 61
1. Natural Persons — Exception (as to Involuntary
Bankruptcy) in the Cases of 61
a. Wage-earners 61
b. Farmers 65
c. What Time Governs as to Classification . 71
2. Persons of Abnormal Status 79
a. Infants 79
b. Married Women 83
c. Lunatics 89
3. Partnerships 96
4. Corporations 99
CHAPTER n
PREREQUISITES TO ADJUDICATION
§ I. In Voluntary Proceedings 101
§ II. In Involuntary Proceedings 104
A. Insolvency 104
B. Debts of $1,000 or Over 120
C. Petitioning Creditors 120
D. Acts of Bankruptcy 121
1. Fraudulent Conveyances 121
2. Preferences 247
3. Assignments 366
4. Appointment of a Receiver 373
5. Admission in Writing 377
li^t 4 a^^^V-'-^^^.v^ ^ -. i.. I.
CONTENTS
CHAPTEB III
ADMINISTRATION
PAGE
I I. Eeceiver 380
S II. Provable Claims 384
A. In General 384
B. Tort Claims 396
C. Contract Claims . . .i 409
1. Unliquidated Claims 409
2. Contingent Claims 411
D. Secured Claims , 463
E. Claims Having Priority 466
I III. The Trustee 476
A. Appointment 476
B. Property Acquired 486
1. As of What Time 486
2. Kinds of Property 492
3. Dissolution of Liens 578
4. Mutual Debts and Credits . ., 599
I IV. Exemptions 647
CHAPTER IV
COMPOSITIONS 653
CHAPTER V
DISCHARGE 663
APPENDIX
STATUTE OF 13 ELIZABETH 717
NEW YORK ACT OF 1829 718
BANKRUPTCY ACT OF 1898 AND NOTES 721
HOLBROOK & AIGLER'S
CASES ON BANKRUPTCY
CHAPTER I
JURISDICTION
SECTION I
OF THE SUBJECT MATTER
A, Federal. Legislation
1. CONSTITUTIONAL POWER
Constitutio-n of the United States — Article I., Section 8
The Congress shall have power * * * to establish
* * * uniform laws on the subject of bankruptcies through-
out the United States.
2. CONSTITUTIONALITY OF BANKRUPTCY ACT H'MTi'l.
HANOVER NATIONAL BANK v. MOYSES
186 U. S. 181, 46 L. ed. 1113, 22 Sup. Ct. 857
(United States Supreme Court. June 2, 1902)
Statement by Mr. Chief Justice FULLER :
This was an action brought by the Hanover National Bank
of New York against Max Moyses in the circuit court of the
United States for the eastern district of Tennessee, November
20, 1899, on a judgment recovered against him in the circuit
court of "Washington county, Mississippi, December 12, 1892.
The amended declaration averred the execution of a certain
promissoryjDote by defejidaj^t payable to the bank of Greenville,
1
H. & A. Bankruptcy — J
2 ' JURISDICTION
Missi^iEpi^; the indorsement thereof to plaintiff in New York;
default in payment, suit in the state court of Mississippi having
jurisdiction in perso'nam against defendant, who was then a
citizen and resident thereof ; recovery of judgment ; and that the
judgment "still remains in full force and effect, unappealed
from, unreversed, or otherwise vacated, and the plaintiff hath
not obtained any execution or satisfaction thereof." It was
also averred that gjter the rendition of the_ judgment in
Mississippi, defendant changed his domicil and residence to the
state^of Tennessee, and thereafter, "not being a merchant or a
trader, nor engaged in business or in any commercial pursuits,
nor using the trade of merchandise, and being without mercan-
tile business of any kind, fjLad^ his voluntajy ppt^tinn in bank-
rupf/»yjn the district court of the United^ States for the southern
^ dwdaion-jiLaaid eastern district of Tennessee71iii3er~the act of
Congress of the United States of America, approved July 1st,
1898, entitled *An Act to Establish a Uniform System of Bank-
ruptcy Throughout the United States,' " and was adjudged
bankrupt, and "since August 1st, 1898,'' "granted an adjudica-
tion of his discharge in bankruptcy from all his debts, including
that herein sued for."
It was admitted that the discharge was * * good and effectual if
said act of Congress and the proceedings thereunder are valid,"
but charged that the act was void because in violation of the
Federal Constitution in many particulars set forth.
Plaintiff also stated that it was and had continued to be
domiciled in and resident in New York ; that it was not a party
to said proceedings in bankruptcy, nor did it enter its appear-
ance therein for any purpose, nor did it prove its claim, nor did
it in any way subject itself to the jurisdiction of the district
court in said proceedings; that plaintiff was not served with
process of any kind on said petition for adjudication, and had
no notice, personal or otherwise, of the said proceeding by
voluntary petition for adjudication; nor was any notice of the
proceeding to adjudicate defendant a bankrupt given plaintiff,
or anyone else, "nor is any notice of any kind of such pro-
ceeding to adjudicate a person a bankrupt upon his voluntary
petition required by said act of Congress, and in this said act
of Congress violates the Fifth Amendment," as does the "adju-
dication of defendant as a bankrupt;" that the situs of the
promissory note, on which the judgment was rendered, was
never within the jurisdiction of the district court; and that
•v^
CONSTITUTIONALITY OF BANKRUPTCY ACT 3
the court never acquired jurisdiction of plaintiff, nor of the debt
sued on.
Demurrer was filed to the amended declaration, the demurrer
sustained, and final judgment entered dismissing the suit. The
circuit court stated that it took this action on the authority of
Leidigh Carriage Co. v. Stengel, 37 C. C. A. 210, 95 Fed. 637.
Thereupon the bank brought this writ of error.
Errors were specified as follows: That the discharge under
the act of Congress of July 1, 1898, was a nullity, because :
"1. Said act violates the 5th Amendment to the Constitu-
tion of the United States in this :
" (a) It does not provide for notice as required by due process
of law to the creditor in voluntary proceedings for adjudica-
tion of bankruptcy and for the discharge of the debt of the
creditor. - ''iJ ■«"''•• ''-'«""
. '* (b) Jen days* notice by mail_to creditors to oppose dis-
/ charge is so unreasonably short as to be a denial of notice.
"(c) The grounds of opposition to a discharge are so un-
reasonably limited as, substantially, to deny the right of opposi-
tion to a discharge. Thereby the act is also practically a legis-
lative promulgation of a discharge contrary to art. 3, § 1, of
the Federal Constitution.
' ' 2. Said act violates art. 1, § 8, T[ 4, of the Constitution in
•tljig. 'U'rij ti! u"f>'tq <»i K/ic! i»'»ii>i. "5« no>*rt'»-".'
"(a) It does not establish uniform laws on the subject of
bankruptcies throughout the United States.
**(b) It delegates certain legislative powers to the several
states in respect to bankruptcy proceedings.
. "(c) It provides tha,t^cJfhersJtlijaa_tca4ers^niay be adjudged
bankrupts, and that this may be done on voluntary petitions."
Mr. Chief Justice FULLER delivered the opinion of the
court :
By the 4th clause of § 8 of art. 1 of the Constitution the power
is vested in Congress "to establish * * * uniform laws on
the subject of bankruptcies throughout the United States." This
/^ower was first exercised inJ^O^L, 2 Stat, at L. 19, c. 19. In
I ^\4803 that law was repealed.^ 2 Stat, at L. 248, c. 6. In 1841 it],^^
was again exercised by an act which was repealed in IS^x
5 Stat, at L. 440, c. 9; 5 Stat, at L. 614, c. 82. It was again
/'exercised in J-867 by an act which, after being several times
•^Jamended, was finally repealed in 1878. 14 Stat, at L. 517,
ft
JURISDICTION
176 ; 20 Stat, at L. 99, c. 160. And on July 1, 1898, the present
act was approved. ~~*
The act of 1800^applied to "any merchant, or other person,
residing within the United States, actually using the trade of
merchandise, by buying or selling in gross, or by retail, or
dealing in exchange, or as a banker, broker, factor, underwriter,
or marine insurer," and to involuntary bankruptcy.
In Adams v. Storey, 1 Paine, 79, Fed. Cas. No. 66, Mr.
Justice Livingston said on circuit : "So exclusively have bank-
rupt laws operated on traders, that it may well be doubted
whether an act of Congress subjecting to such a law every
description of persons within the United States would comport
with the spirit of the powers vested in them in relation to this
subject." But this doubt was resolved otherwise, and the acts
of 1841 and 1867 extended to persons other than merchants or
traders, and provided for voluntary proceedings on the part of
^he debtor, as does the act of 1898.
It is true that from the first bankrupt act passed in England,
34 & 35 Hen. VIII. c. 4, to the days of Queen Victoria, the
EngHsh bankrupLa£ts-*pplied-QnlyJ;fi Jraders, but, as Mr. Justice
Story, in his Commentaries on the Constitution, pointed out,
"this is a mgre_matter. of ^policy, and by no means enters into
the nature of such laws. TheVe is nothing in the nature or
reason of such laws to prevent their being applied to any other
class of unfortunate and meritorious debtors." § 1113.
The whole subject is reviewed by that learned commentator
in c. XVI. §§ 1102 to 1115 of his work, and he says (§ 1111)
in respect of ' * what laws are to be deemed bankrupt laws within
the meaning of the Constitution : " " Attempts have been made
to distinguish between bankrupt laws and insolvent laws. For
example, it has been said that laws which merely liberate the
person of the debtor are insolvent laws, and those which dis-
charge the contract are bankrupt laws. But it would be very
difficult to sustain this distinction by any uniformity of laws
at home or abroad. * * * Again, it has been said that in-
solvent laws act on imprisoned debtors only at their own
instance, and bankrupt laws only at the instance of creditors.
But, however true this may have been in past times, as the
actual course of English legislation, it is not true, and never
was true, as a distinction in colonial legislation. In England
it was an accident in the system, and not a material ground to
discriminate, who were to be deemed in a legal sense insolvents.
CONSTITUTIONALITY OF BANKEUPTCY ACT 5
or bankrupts. And if an act of Congress should be passed,
which should authorize a commission of bankruptcy to issue at
the instance of the debtor, no court would on this account be
warranted in saying that the act was unconstitutional, and the ^ -^ —
commission a nullity. It is believed that no laws ever were passed ^^^_
in America by the colonies or states, which had the technical "^(^^^..^^
denomination of 'bankrupt laws.' But insolvent laws, quite
coextensive with the English bankrupt system in their opera-
tions and objects, have not been unfrequent in colonial and state
legislation. No distinction was ever practically, or even theo-
retically, attempted to be made between bankruptcies and insol-
vencies. And a historical review of the colonial and state legis-
lation will abundantly show that a bankrupt law may contain
those regulations which are generally found in insolvent laws,
and that an insolvent law may contain those which are common
to bankrupt laws."
_ Starges V. Crowninshield, 4 Wheat. 122, 195, 4 L. ed. 529, 548,
was cited, where Chief Justice Marshall said: "The bankrupt
law is said to grow out of the exigencies of commerce, and to be
applicable solely to traders; but it is not easy to say who must
be excluded from, or may be included within, this description.
It is, like every other part of the subject, one on which the
legislature may exercise an extensive discretion. This difficulty
of discriminating with any accuracy between insolvent and
bankrupt laws would lead to the opinion that a bankrupt law
may contain those regulations which are generally found in
insolvent laws; and that an insolvent law may contain those
which are common to a bankrupt law."
In the case, Re Klein, Fed. Cas. No. 7,865, decided in the
circuit court for the district of Missouri, and reported in a note
to Nelson v. Carland, 1 How. 265, 277, 11 L. ed. 126, 130, Mr.
Justice Catron held the bankrupt act of 1841 to be constitu-
tional, although it was not restricted to traders, and allowed the
debtor to avail himself of the act on his own petition, differing
in these particulars from the English acts. He said, among other
things : "In considering the question before me, I have not pre-
tended to give a definition, (but purposely avoided any attempt
to define) the mere word 'bankruptcy.' It is employed in the
Constitution in the plural, and as part of an expression, 'the
subject of bankruptcies.' The ideas attached to the word in
this connection are numerous and complicated; they form a
subject of extensive and complicated legislation; of this sub-
6. JURISDICTION
ject, Congress has general jurisdiction; and the true inquiry
is, — To what limits is that jurisdiction restricted? I hold, it
extends to all cases where the law causes to be distributed the
property of the debtor among his creditors; this is its least
limit. Its greatest is the discharge of a debtor from his con-
tracts. And all intermediate legislation, affecting substance and
*form, but tending to further the great end of the subject, —
distribution and discharge, — are in the competency and discre-
tion of Congress. With the policy of a: law letting in all classes,
— others as well as traders, — and permitting the bankrupt to
come in voluntarily, and be discharged without the consent of
his creditors, the courts have no concern; it belongs to the law-
makers. "
Similar views were expressed under the act of 1867, by Mr.
Justice Blatchford, then District Judge, in Re Reiman, 7 Ben.
455, Fed. Cas. No. 11,673; by Deady, J., in Re Silverman, 1
Sawy. 410, Fed. Cas. No. 12,855; by Hoffman, J., in Re Cali-
fornia P. R. Co., 3 Sawy. 240, Fed. Cas. No. 2,315; and in
Kunzler v. Kohaus, 5 Hill, 317, by Cowen, J., in respect of the
act of 1841, in which Mr. Justice Nelson, then Chief Justice of
New York, concurred. The conclusion that an act of Congress
establishing a uniform system of bankruptcy throughout the
United States is constitutional, although providing that others
than traders may be adjudged bankrupts, and that this may
be done on voluntary petitions, is really not open to discussion.
The framers of the Constitution were familiar with Black-
stone's Commentaries, and with the bankrupt laws of England,
yet they granted plenary power to Congress over the whole sub-
ject of "bankruptcy," and did not limit it by the language
used. This is illustrated by Mr. Sherman's observation in the
Convention, that ''bankruptcies were, in some cases, punishable
with death by the laws of England, and he did not choose to
grant a power by which that might be done here;" and the
rejoinder of Gouverneur Morris, that "this was an extensive
and delicate subject. He would agree to it, because he saw no
danger of abuse of the power by the legislature of the United
States." Madison Papers, 5 Elliot, 504; 2 Bancroft, 204. And
also to some extent by the amendment proposed by New York,
"that the power of Congress to pass uniform laws concern-
ing bankruptcy shall only extend to merchants and other traders ;
and the states, respectively, may pass laws for the relief of
other insolvent debtors." 1 Elliot, 330. See also Mr. Pinkney's
CONSTITUTIONALITY OF BANKBUPTCY ACT 7
original proposition, 5 Elliot, 488; the report of the committee
thereon, 5 Elliot, 503 ; and The Federalist, No. 4?, Ford's ed. 279.
As the states, in surrendering the power, did so only if Con-
gress chose to exercise it, but in the absence of congressional
legislation retained it, the limitation was imposed on the states
that they should pass no "law impairing the obligation of
contracts. ' '
In Brown v. Smart, 145 U. S. 454, 457, 36 L. ed. 773, 775,
12 Sup. Ct. Rep. 958, 959, Mr. Justice Gray said: "So long as
there is no national bankrupt act, each state has full authority
to pass insolvent laws binding persons and property within its
jurisdiction, provided it does not impair the obligation of exist-
ing contracts; but a state cannot by such a law discharge one
of its own citizens from his contracts with citizens of other
states, though made after the passage of the law, unless they
voluntarily become parties to the proceedings in insolvency.
* * * Yet each state, so long as it does not impair the
obligation of any contract, has the power by general laws to
regulate the conveyance and disposition of all property, personal
or real, within its limits and jurisdiction." Many cases were
cited, and, among others, Denny v. Bennett, 128 U. S. 498,
32 L. ed. 494, 9 Sup. Ct. Rep. 134, where Mr. Justice Miller
observed : ' ' The objection to the extraterritorial operation of a
state insolvent law is that it cannot, like the bankruptcy law
passed by Congress under its constitutional grant of power,
release all debtors from the obligation of the debt. The authority
to deal with the property of the debtor within the state, so far
as it does not impair the obligation of contracts, is conceded."
Counsel justly says that "the relation of debtor and creditor
has a dual aspect, and contains two separate elements. The
one is the right of the creditor to resort to present property
of the debtor through the courts to satisfy the debt; the other
is the personal obligation of the debtor to pay the debt, and that
he will devote his energies and labor to discharge it" (4 Wheat.
198, 4 L. ed. 549) ; and, "in the absence of property, the per-
sonal obligation to pay constitutes the only value of the debt."
Hence the importance of the distinction between the power of
Congress and the power of the states. The subject of "bank-
ruptcies" includes the power to discharge the debtor from his
contracts and legal liabilities, as well as to distribute his prop-
erty. The grant to Congress involves the power to impair the
obligation of contracts, and this the states were forbidden to do.
^\*A-l>V
8 JURISDICTION
The laws passed on the subject must, however, be uniform
throughout the United States, but that uniformity is geo-
graphical, and not personal, and we do not think that the pro-
vision of the act of 1898 as to exemptions is incompatible with
the rule.
Section 6 reads: "This act shall not affect the allowance to
bankrupts of the exemptions which are prescribed by the state
laws in force at the time of the filing of the petition in the state
wherein they have had their doraicil for the six months, or the
greater portion thereof, immediately preceding the filing of the
petition." [30 Stat, at L. 544, c. 541.]
Section 14 of the act of 1867 prescribed certain exemptions,
and then added : ' ' And such other property not included in the
foregoing exceptions as is exempted from levy and sale upon
execution or other process or order of any court by the laws
of the state in which the bankrupt has his domicil at the time
of the commencement of the proceedings in bankruptcy, to an
amount not exceeding that allowed by such state exemption laws
in force in the year eighteen hundred and sixty-four." [14
Stat, at L. 517, c. 176.] This was subsequently amended, and
controversies arose under the act as amended which we need not
discuss in this case. Lowell, Bankruptcy, § 4.
It was many times ruled that this provision was not in .deroga-
rV^ - tion of the limitation of uniformity because all contracts were
H^^^"^ jnade with reference to existing laws^ and no creditor could
recover more from his debtor ^^^^ ^^^ iin exempted part of hia
assets. Mr. Justice Miller concurred in an opinion to that effect
in the Case of Beckerford, 1 Dill. 45, Fed. Cas. No. 1,209.
Mr. Chief Justice Waite expressed the same opinion in Re
Deckert, 2 Hughes, 183, Fed. Cas. No. 3,728. The Chief Justice
there said : ' ' The power to except from the operation of the
law property liable to execution under the exemption laws of
the several states, as they were actually enforced, was at one
time questioned, upon the ground that it was a violation of the
constitutional requirement of uniformity, but it has thus far
been sustained, for the reason that it was made a rule of the
law to subject to the payment of debts under its operation only
such property as could by judicial process be made available for
the same purpose. This is not unjust, as every debt is con-
tracted with reference to the rights of the parties thereto under
existing exemption laws, and no creditor can reasonably com-
plain if he gets his full share of all that the law, for the time
CONSTITUTIONALITY OF BANKRUPTCY ACT 9
being, places at the disposal of creditors. One of the effects
of a bankrupt law is that of a general execution issued in favor
of all the creditors of the bankrupt, reaching all his property
subject to levy, and applying it to the payment of all his debts
according to their respective priorities. It is quite proper,
therefore, to confine its operation to such property as other legal
process could reach. A rule which operates to this effect
throughout the United States is uniform within the meaning
of that term, as used in the Constitution. ' '
We concur in this view, and hold that the system is, in the
constitutional sense, uniform throughout the United States,
when the trustee takes in each state whatever would have been
available to the creditor if the bankrupt law had not been passed.
The general operation of the law is uniform although it may
result in certain particulars differently in different states.
Nor can we perceive in the recognition of the local law in the
matter of exemptions, dower, priority of payments, and the like,
any attempt by Congress to unlawfully delegate its legislative
power. Re Rahrer, 140 U. S. 545, 560, suh nom. Wilkerson v.
Rahrer, 35 L. ed. 572, 576, 11 Sup. Ct. Rep. 865.
But it is contended that as to voluntary proceedings the act
is in violation of the 5th Amendment in that it deprives creditors
of their propertv without due process of law in failing to pro-^
vide for notice.
The act provides that "any person who owes debts, except a
corporation, shall be entitled to the benefits of this act as a
voluntary bankrupt" (§4a), and that "upon the filing of a
voluntary petition the judge shall hear the petition and make
the adjudication or dismiss the petition." § 18g. With the
petition he must file schedules of his property, and "of his
creditors, showing their residences, if known, if unknown, that
fact to be stated. " § 7, subd. 8. The schedules must be verified,
and the petition must state that "petitioner owes debts which
he is unable to pay in full," and "that he is willing to sur-
render all his property for the benefit of his creditors, except
such as is exempt by law, ' ' This establishes those facts so far as
a decree of bankruptcy is concerned, and he has committed an
act of bankruptcy in filing the petition. These are not issuable
facts, and notice is unnecessary", unless dismissal is sought, when
notice is required. § 59g.
As Judge Lowell said: "He may be, in fact, fraudulent,
and able and unwilling to pay his debts; but the law takes
10
JURISDICTION
.*JL^^
him at his word, and makes effectual provision, not only by
civil, but even by criminal, process to effectuate his alleged
intent of giving up all his property." Re Fowler, 1 Low. Dec.
161, Fed. Cas. No. 4,998.
Adjudication follows as matter of course, and brings the
bankrupt's property into the custody of the court for distribu-
tion among all his creditors. After adjudication the creditors
are given at least ten days' notice by publication and by mail
of the first meeting of creditors, and of each of the various sub-
sequent steps in administration. § 58. Application for a dis-
charge cannot be made until after the expiration of one month
from adjudication. § 14.
Form No. 57 gives the form of petition for discharge and the
order for hearing to be entered thereon, requiring notice to be
published in a designated newspaper printed in the district,
and "that the clerk shall send by mail to all known creditors
copies of said petition and this order, addressed to them at their
places of residence as stated."
Section 14b provides for the granting of discharge unless the
applicant has " (1) committed an offense punishable by imprison-
ment as herein provided; or (2) with fraudulent intent to
conceal his true financial condition, and, in contemplation of
bankruptcy, destroyed, concealed, or failed to keep books of
account or records from which his true condition might be ascer-
tained. ' '
The offenses referred to are enumerated in § 29, and em-
brace misappropriation of property ; concealing property belong-
ing to the estate; making false oaths or accounts; presenting
false claims ; receiving property from a bankrupt with intent to
defeat the act; extorting money for acting or forbearing to act
in bankruptcy proceedings.
It is also provided by § 15 that a discharge may be revoked,
on application within a year, if procured by fraud and not
warranted by the facts.
Notwithstanding these provisions, it is insisted that the want
of notice of filing the petition is fatal because the adjudication
per se entitles the bankrupt to a discharge, and that the pro-
ceedings in respect of discharge are in personam, and require
personal service of notice. The adjudication does not in itself
have that effect, and the first of these objections really rests on
the ground that the notice provided for is unreasonably short,
and the right to oppose discharge unreasonably restricted. Con-
C
EFFECT OF NATIONAL ACT H
sidering the plenary power of Congress, the subject-matter of
the suit, and the common rights and interests of the creditors,
we regard the contention as untenable.
Congress may prescribe any regulations concerning discharge
in bankruptcy that are not so grossly unreasonable as to be
incompatible with fundamental law, and we cannot find any-
thing in this act on that subject which would justify us in over-
throwing its action.
Nor is it possible to concede that personal service of notice
of the application for a discharge is required.
Proceedings in bankruptcy are, generally speaking, in thejp!^
nature of proceedings in rem, as Mr. Justice Grier remarked in I
SHawhan v. Wherritt, 7 How. 643, 12 L. ed. 854. And in'
New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91
U. S. 662, 23 L. ed. 339, it was ruled that a decree adjudging
a corporation bankrupt is in the nature of a decree in rem as
respects the status of the corporation. Creditors are bound by
the proceedijQgs;jLii distribution on notice by publication and
niail, and when jurisdiction has attached and been exercised to
that extent, the court has jurisdiction to decree discharge, if
sufficient opportunity to show cause to the contrary is afforded,
on notice given in the same way. The determination of the
status of the honest and unfortunate debtor by his liberation
from encumbrance^ on future exertion is matter of public con-
cern, and Congress has power to accomplish it throughout the
United States by proceedings at the debtor's domicil. If such
notice to those who may be interested in opposing discharge,
as the nature of the proceeding admits, is provided to be given,
that is sufficient. Service of process or personal notice is not
essential to the binding force of the decree.
Judgment affirmed.
■ I 7.l'i'jqo-i(\ .' B. State Legislation
1. effect of national act
Note. — In the absence of a national bankruptcy statute it is//
within the power of the several states to enact such legisla-
tion. Sturges V. Crowninshield, 4 Wheat. 122. State bank-
ruptcy laws, however, in so far as they purport to affect con-
tracts made before the adoption of the statutes are void as
impairing the obligation of contracts. Sturges v. Crowninshield,
supra. As to contracts made after the enactment of the state
12 JURISDICTION
bankruptcy statute there is no constitutional objection to the
state law providing for a full and complete discharge. Ogden
V. Saunders, 12 Wheat. 213. During the times when there
was no national bankruptcy law, when the several states had
covered the ground more or less fully, many interesting and
difficult problems confronted the courts as to the proper law
applicable to given cases. The problem usually presented was
the effect of a discharge by a state court under the state statute
upon contracts made in other states or held by creditors who
were non-residents or citizens of other states. For a discussion
of this very interesting though now comparatively unimportant
problem/see 6 Harv. L. Rev. 349. /
fxjT^on the national act taking effect, state statutes covering
the same or part of the same ground (see mfra, 12-41) are ipso
facto suspended; and upon the repeal of the national act they
are ipso facto revived. Lothrop v. Highland Foundry Co.,
T28 Mass. 120; Oil Co. v. Morse & Co., 97 Ark. 513. In Maine
an insolvency act was passed before the repeal of the national
act of 1867, and it was held that upon the repeal of the federal
statute the state law became operative and covered things done
during the time that the state and federal laws overlapped.
Palmer v. Hixon, 74 Me. 447. See also Lothrop v. Highland
Foundry Co., supra.
WHAT STATE LAWS ARE SUSPENDED '"' - 0
f'^" ,,«f4^ .J^f^^ MAYER v. HELLMAN £^^ • "j''^
^^.fU'^^^f^ ^ 91 U. S. 496, 23 L. ed. 377
Jj^y\ (United States Supreme Court. January 31, 1876)
\ ^ Hellman, as assignee in bankruptcy of Bogen and others,
sued Mayer and Evans, assignees of the same parties under the
assignment laws of the State of Ohio, to obtain property which
passed to defendants under the assignment to them. The, de-
fendants answered, setting up their title under the assignment;
and the plaintiffs demurred to the answer. The Court below
sustained the demurrer, and the defendants sue out their writ
of error.
The facts as disclosed by the record, so far as they are material
for the disposition of the case, are briefly these : On the 3rd of
December, 1873, at Cincinnati, Ohio, George Bogen and Jacob
Bogen, composing the firm of G. & J. Bogen, and the same
WHAT STATE LAWS ARE SUSPENDED 13
parties with Henry MuUer, composing the firm of Bogen
& Son, by deed executed of that date, individually and as part-
ners, assigned certain property held by them, including that
in controversy, to three trustees, in trust for the equal and
common benefit of all their creditors. The deed was delivered
upon its execution, and the property taken possession of by the
assignees. v.__
By the law of Ohio, in force at the time, when an assignment
of property is made to trustees for the benefit of creditors,
it is the duty of the trustees, within ten days after the de-
livery of the assignment to them, and before disposing of any /
of the property, to appear before the probate judge of the/
I county in which the assignors reside, produce the original assign-}
\ ment, or a copy thereof, and file the same in the Probate Court,l
Vand enter into an undertaking payable to the State, in suchj
\sum and with such sureties as may be approved by the judge, /
•conditioned for the faithful performance of their duties. «
In conformity with this law, the trustees, on the 13th of
December, 1873, within the prescribed ten days, appeared before
the probate judge of the proper county in Ohio, produced the
original assignment, and filed the same in the Probate Court.
One of the trustees having declined to act, another one was
named in his place by the creditors, and appointed by the Court.
Subsequently the three gave an undertaking with sureties ap-
proved by the judge, in the sum of $500,000, for the per-
formance of their duties, and then proceeded with the adminis-
tration of the trust under the direction of the Court.
On the 22nd of June of the following year, more than six '
months after the execution of the assignment, the petition in
bankruptcy against the insolvents was filed in the District
Court of the United States, initiating the proceedings in which
the plaintiff was appointed their assignee in bankruptcy. As .
such officer, he claims a right to the possession of the prop-
erty in the hands of the defendants under the assignment to
them. Judgment having been rendered against them, they
sued out this writ of error.
Mr. Justice FIELD delivered the opinion of the Court.
The validity of the claim of the assignee in bankruptcy de-
pends, ^s^ matter of course, uppn^ the legality of the assign-
ment made under the laws of Ohio. Independently of the Bank-
rupt Act, there could be no serious question raised as to its
14 JURISDICTION
legality. The power which every one possesses over his own
property would justify any such disposition as did not interfere
with the existing rights of others; and an equal distribution
by a debtor of his property among his creditors, when unable
to meet the demands of all in full, would be deemed not only a
legal proceeding, but one entitled to commendation. Creditors
have a right to call for the application of the property of their
debtor to the satisfaction of their just demands; but, unless there
are special circumstances giving priority of right to the demands
of one creditor over another, the rule of equity would require
the equal and ratable distribution of the debtor's property for
the benefit of all of them. And so, whenever such a disposi-
tion has been voluntarily made by the debtor, the courts in this
country have uniformly expressed their approbation of the
proceeding. The hindrance and delay to particular creditors,
in their efforts to reach before others the property^ of the debtor,
that may follow such a conveyance, are regarded as unavoidable
incidents to a just and lawful act, which in no respect impair
the validity of the transaction.
The great object of the Bankrupt Act, so far as creditors
are concerned, is to secure equality of distrib^^^^"" amnng \]\^m
Av^ of the property of the bankrupt. For that purpose, it sets aside
\ all transactions had within a prescribed period previous to the
fjjtr^ petition in bankruptcy, defeating, or tending to defeat, such
distribution. It reaches to proceedings of every form and kind
"*7 tIu, undertaken or executed within that period by which a preference
,A>r^ -4 can be secured to one creditor over another, or the purpose
of the act evaded. That period is Jour months for some transac-
tions, and six months for others. Those periods constitute the
limitation within which the transactions will be examined and
annulled, if conflicting with the provisions of the Bankrupt
Act.
Transactions anterior to these periods are presumed to have
been acquiesced in by the creditors. There is sound policy in
prescribing a limitation of this kind. It would be in the highest
degree injurious to the community to have the validity of busi-
ness transactions with debtors, in which it is interested, subject
to the contingency of being assailed by subsequent proceed-
ings in bankruptcy, Uplesg, jJiefefore^ a^transaction is void
against creditors independently jq£ the pr^visiooa-X^the Bank-
]^pFAct, its valTdity js jiot^ open to _contegtation by the assismee.
where it took place at the geriodL£rescr|bed_by^Jhe_stati^ an-
WHAT STATE LAWS ARE SUSPENDED 15
terior to the proceedings in bankruptcy. The assignment in
this case was not a proceeding, as already said, in hostility to
the creditors, but for their benefit. It was not, therefore, void
as against them, or even voidable. Executed six months before ^_
jhe petition in bankruptcy was filed, it is, to the assi^ee iii_ ^ ^
bankruptcy, a closed proceeding.
The counsel of the plaintiffs in error liaye filed an elaborate^
argument to show that assignmentejor the benefit of creditorg^
generally are not opposed to the Bankrupt Act, though made
within six months previous to the filing of the petition. Theirj
argument is, that such an assignment is only a voluntary execu-
tion of what the Bankrupt Court would compel; and as it is
not a proceeding in itself fraudulent as against creditors, and
does not give a preference to one creditor over another, it con-
flicts with no positive inhibition of the statute. There is much
force in the position of counsel, and it has the support of a
decision of the late Mr. Justice Nelson, in the Circuit Court of
New York, in Sedgwick v. Place, First Nat. Bank. Reg. 204,
and of Mr. Justice Swayne in the Circuit Court of Ohio, in
Langley v. Perry, 2 Nat. Bank. Reg. 180. Certain it is that
such an assignment is not absolutely void; and, if voidable, it
must be because it may be deemed, perhaps, necessary for the
efficiency of the Bankrupt Act that the administration of an
insolvent's estate shall be intrusted to the direction of the
District Court, and not left under the control of the appointee
of the insolvent. It is unnecessary, however, to express any
decided opinion upon this head ; for the decision of the question
is not-Xfifluired for the digBOsdtion of the case.
In the argument of the counsel of the defendant in error, the
position is taken that the Bankrupt Act suspends the opera-
tion of the act of Ohio regulating the mode of administering
assignments for the benefit of creditors, treating the latter as
It does not compel, or in terms even authorize, assignments : '^'^'^-^
it assumes that such instruments were conveyances previously "^<»t^
known, and only prescribes a mode by which the trust created
shall be enforced. It provides for the security of the creditors
by exacting a bond from the trustees for the discharge of their
duties; it requires them to file statements showing what they
have done with the property; and affords in various ways the
means of compelling them to carry out the purposes of the con-
an insolvent law of the State. The answer is, that the statute ^^
of Ohio is not an insolvent law in any proper sense of thejerm. ^f^ at
16 JURISDICTION
veyance. There is nothing in the act resembling an insolvent
law. It does not discharge the insolvent from arrest or impriijjon- _
ment : it leaves his after-acquired property liable to his creditors
precisely as though no assignment had been made. The pro-
visions for enforcing the trust are substantially such as a court
of chancery would apply in the absence of any statutory pro-
vision. The assignment in this case must, therefore, be regarded
as though the statute of Ohio, to which reference is made, had
no existence. There is an insolvent law in that State; but the
assignment in, question was not made in pursuance of any of its
r^rovisions. \The position, therefore, of counsel, that the Bank-
] rupt Law orCongress suspends all proceedings under the Insol-
S vent Law of the State, has no application?]
^ The assignment in this case being in our judgment valid and
binding, there was no property in the hands of the plaintiffs in
error which the assignee in bankruptcy could claim. The assign-
ment to them divested the insolvents of all proprietary rights
they held in the property described in the conveyance. They
could not have maintained any action either for the personalty
or realty. There did, indeed, remain to them an equitable right
to have paid over to them any remainder after the claims of all
of the creditors were satisfied. If a contingency should ever
arise for the assertion of this right, the assignee in bankruptcy
may perhaps have a claim for such remainder, to be applied to
the payment of creditors not protected by the assignment, and
whose demands have been created subsequent to that instrument.
Of this possibility we have no occasion to speak now.
Our conclusion is, that the Court below erred in sustaining
the demurrer to the defendant's answer; and the judgment of
the Court must, therefore, be reversed, and the cause remanded
for further proceedings.^
A "^^^^ ^ "^ BOESE V. KING
\ V U^ ^ 108 U. S. 379, 27 L. ed. 760
^ . f^J-(/) V (United States Supreme Court. April 30, 1883)
'•^ / " Suit by a receiver appointed by a State court in New York
,3^ ^^'Jw^n return of execution unsatisfied ; brought in New York against
, rfr J- — -^cc. In re Farrell, 176 Fed. See also Downer v. Porter, 116
' ^jr\ 505, 100 C. C. A. 63; Pogue v. Rowe, Ky. 422, 76 8. W. 135; Louisville
XT jJ^' 236 111. 157 (but see Harbaugh v. Co. v. Lamman, 135 Ky. 163, 121
v^. ,
Costello, 184 111. 110). S. W. 1042.
WHAT STATE LAWS ARE SUSPENDED 17
assignees of the property of the judgment debtor under an
lasaignment for the benefit of creditors, made in accordance with
'the laws of New Jersey (of which State the _assigiifies--and.JJl^
debtor are citizens), and to recover proceeds of the debtor's
property voluntarily brought within the State of New York by
the assignees for distribution under the assignment.
By^eed-of -iissignment executed and delivered September
25th, 1873, Wm. H. Locke, a citizen of New Jersey, transferred "^^
and conveyed to Wm, King, John M. Goetchius, and Edward E. <^^^
Poor, and the survivor of them, and their and his heirs and
assigns, all his property of every kind and description — except I
such as was exempt by law from execution — "in trust to take •
"p^ession of and collect and to sell and dispose of the same at
public or private sale in their discretion, and to^distribute the
proceeds to and among the creditors of the said Wm. H. Locke,
in proportion to tneir several 3ust demands, pursuant to the
statutes in such case made and provided, and on the further
trust to pay the surplus, if any there be, after fully satisfying
and paying the said creditors and all proper costs and charges,
to the said Wm. H. Locke."
The intention of Locke and the assignors [assignees] was to
have a distribution made among the creditors of the former in
conformity with the requirements of an act of the legislature of
New Jersey, passed April 16th, 1846, entitled "An Act to
secure to creditors an equal and just division of the estates of
debtors who convey to assignees for the benefit of creditors."
That act provided, among other things, that every conveyance
or assignment by a debtor of his estate, real or personal or both,
in trust, to an assignee for the benefit of creditors, shall be
made for their equal benefit in proportion to their several de-
mands to the net amount that shall come to the hands of the
assignee for distribution; and all preferences of one creditor
over another, or whereby one shall be first paid or have a
greater proportion in respect to his claim than another, shall be
deemed fraudulent and void, excepting mortgage and judgment
creditors, when the judgment has not been by confession for
the purpose by preferring creditors (1) ; further, that the
debtor shall annex to his assignment an inventory, under oath
or afl&rmation, of all of his property, together with a list of
his creditors, and the amount of their respective claims, such
inventory not, however, to be conclusive as to the quantity of
the debtor's estate, and the assignee to be entitled to any other
H. & A. Bankruptcy — 2
ftiiA ^^- '^ 1 "^
18 JURISDICTION
property belonging to the debtor at the time of the assign-
ment, and comprehended within its general terms (2). Other
sections provided for public notice by the assignee of the assign-
ment; for the presentation of claims of creditors; for filing by
the assignee under oath of a true inventory and valuation of
the estate; for the execution by him of a bond in double the
amount of such inventory or valuation ; for the recording of such
bond ; for the filing with the clerk of the Court of Common Pleas
of the county of the debtor's residence, within three months
after the date of the assignment, of a list of all such creditors
as claim to be such, and the amount of their demands, first mak-
ing it known by advertisement that all claims against the estate
must be made as prescribed in the statute, or be forever barred
from coming in for a dividend of said estate, otherwise than as
provided ; for the right of the assignee or any creditor or person
interested to except to the allowance of any claim presented; for
the adjudication of such exceptions for fair and equal dividends
from time to time among the creditors of the assets in pro-
portion to their respective claims; and for a final accounting
by the assignee in the Orphans' Court of the county — such set-
tlement and adjudication to be conclusive on all parties, except
for assets which may afterward come to hand, or for frauds or
apparent error (3, 4, 5, 6 and 7).
The act further provided
^ . 1 I "11. If any creditor shall not exhibit his, her or their claims
y^ v/within the term of three months as aforesaid, such claim shall
'Xc^ ' \ ^ barred of a dividend unless the estate shall prove sufficient
^ / after the debts exhibited and allowed are fully satisfied, or
I such creditors shall find some other estate not accounted for
/ by the assignee or assignees before distribution, in which case
/ such barred creditors shall be entitled to a ratable proportion
' therefrom.
"12. Whenever any assignee or assignees, as aforesaid, shall
sell any real estate of such debtor or debtors as is conveyed in
trust as aforesaid, he or they shall proceed to advertise and sell
the same in manner as is now or may hereafter be prescribed
in the case of an executor or administrator directed to sell
lands by an order of the Orphans' Court for the payment of the
debts of the testator or intestate.
"13. Every assignee, as aforesaid, shall have as full power
and authority to dispose of all estate, real and personal, as-
signed, as the said debtor or debtors had at the time of the
WHAT STATE LAWS ABE SUSPENDED 19
assignment, and to sue for and recover in the proper name of
such assignee or assignees everything belonging or appertain-
ing to said estate, real or personal, of said debtor or debtors,
and shaU have full power and authority to refer to arbitration,
settle and compound, and to agree with any person concerning
the same, and to redeem all mortgages and conditional contracts,
and generally to act and do whatever the said debtor or debtors
might have lawfully done in the premises.
* ' 14. Nothing in this act shall be taken or understood as dis- -> ,
charging said debtor or debtors from liabilities to their creditors "'^^ir.
who may not choosy to exhibit their claims either in regard to ^ . ^
the persons of such debtors or to any estate, real or personal, '^/
not assigned as aforesaid, but with respect to the creditors who
shall come in under said assignment and exhibit their demands
as aforesaid for a dividend, they shall be wholly barred from
having afterward any action or suit at law or equity against
such debtors or their representatives, unless on the trial of such
action or hearing in equity the said creditor shall prove fraud
in the said debtor or debtors with respect to the said assign-
ment, or concealing his estate, real or personal, whether in
possession, held in trust, or otherwise."
The estate which came into the hands of the assignees was
converted into money in New Jersey — the amount being nearly
$200,000 — and the proceeds, for the convenience of the assign-
ees, were deposited in a bank in the city of New York. No
proceedings in bankruptcy were ever taken against Locke.
Un the 3rd day of February, 1876, William Pickhardt and
Adolph Kutroff recovered a judgment against Locke in the
Supreme Court of the city and county of New York for
$3,086.85. Upon that judgment execution was issued and re-
turned unsatisfied. Subsequently, May 27th, 1876, in certain
proceedings, before one of the judges of that court, supple-
mentary t(x the return of execution, Thomas Boese, plaintiff in
error, was appointed receiver of the property of Locke, and hav-
ing executed a bond for the faithful discharge of the duties of
his trust, he obtained an order from the same court giving him
authority, as receiver, to bring an action against the assignees
of Locke. Thereupon, June 9th, 1876, he commenced this action.
It proceeds upon these grounds: 1. That the indebtedness from\
Locke to Pickhardt and Kutroff arose in New York, where they
reside, before the making of said assignment; 2. That the
statute of New Jersey with reference to or under which said
20 JURISDICTION
assi^ment was made was, by force of the Bankruptcy Act of
1867, suspended and of no effect; 3. That the assignment was
fraudulent and void by the laws of New Jersey, in that it was
made with the intent upon the part of Locke to hinder, delay
and defraud his creditors, and in that he had a large amount of
money and other property which he fraudulently retained to
his own use and did not surrender to the assignees.
The prayer of the complaint — the allegations of which were
fully met by answer — was for judgment against the defendants ;
that the assignments be adjudged fraudulent and void ; and that
the defendants be required to account to plaintiff for all the
property and money received or to which they are entitled un-
der and by virtue of the assignment. It was conceded at the
hearing that defendants had in their hands, of the proceeds of
the sale of the assigned property, an amount sufficient to pay
the judgment of Pickhardt and Kutroff.
The Supreme Court of New York, both in general and spe-
cial terms, sustained the action and gave judgment against the
assignees in favor of Boese^ as receiver, for the amount of the
demand of Pickhardt and Kutroff. But in the Court of Appeals
that judgment was reversed, with directions to enter judgment
for the defendants.
The receiver brought the suit here in error asking to have
this decision reversed.
Mr. Justice HARLAN delivered the opinion of the Court.
After reciting the facts in the foregoing language he continued :
We are to consider in this case whether the final judgment of
the Court of Appeals of New York has deprived the plaintiff in
error of any right, title, or privilege under the Constitution or
laws of the United States.
We dismiss from consideration all suggestions in the plead-
ings of actual fraud upon the part either of Locke or of his
assignees. The court of original jurisdiction found as a fact —
and upon that basis the case was considered by the Court of
Appeals — that the assignment was executed and delivered by
the former and accepted by the latter in good faith and without
any purpose to hinder, delay, or defraud any creditor of Locke.
It is further found as a fact that the assignment was made
with the intent, bona fide, to make an equal distribution of the
proceeds of the trust estate among creditors, in conformity with
the local statute. The Supreme Court of Npw York pi^pd that
WHAT STATE LAWS ARE SUSPENDED 21
the statute of New Jersey was, in its nature and effect, a bank-
rupt law, and the power conferred upon Congress to establish
a uniform system of bankruptcy, having been exercised by the
passage of the act of 1867, the latter act wholly suspended the
operation of the local statute as to all cases within its purview;
consequently, it was held, the assignment was not valid for any
purpose. The Court of Appeals, recognizing the paramount
nature of the Bankrupt Act of Congress, and assuming that
the 14th section of the New Jersey statute, relating to the effect
upon the claims of creditors who exhibit their demands for a divi-
dend. was inconsistent with that act and the^'pforp inopprativp,
adjudged that other portions of the local statute providing for
the equal distribution of the debtor's property among his cred-
itors, and regulating the general conduct of the assignee, were
not inconsistent with nor were they necessarily suspended by
the act of 1867; further, that the New Jersey statute did not
create the right to make voluntary assignments for the equal
benefit of creditors, but was only restrictive of a previously
existing right, and imposed, for the benefit of creditors, salutary
safeguards around its exercise; consequently, had the whole of
the New Jersey statute been superseded, the right of a debtor
to make a voluntary assignment would still have existed. The
assignment, as a transfer of the debtor's property, was, there-
fore, upheld as in harmony with the general object and pur-
poses of the Bankrupt Act, unassailable by reason merely of
the fact that some of the provisions of the local statute may
have been suspended by the act of 1867.
In the view which we take of the case it is unnecessary to
consider all of the questions covered by the opinion of the
state court and discussed here by counsel. Especially it is not
necessary to determine whether the Bankrupt Act of 1867 sus-
pended or superseded all of the provisions of the New Jersey
statute. Undoubtedly the local statute was, from the date of
the passage of the Bankrupt Act, inoperative in so far as it
provided for the discharge of the debtor from future liability
to creditors who came in under the assignment and claimed to
participate in the distribution of the proceeds of the assigned
property. It is equally clear, we think, that the assignment by
Locke of his entire property to be disposed of as prescribed ^yiXcf a
the statute of New Jersey, and therefore independently of the /!? fC
bankruptcy court, constituted, itself, an act of bankruptcy, for ^ ^^^ifl^
which, upon the petition of a creditor filed in proper time.
t
22 JURISDICTION '^ TAHv;
Locke could have been adjudged a bankrupt, and the property
wrested from his assignees for administration in the bankruptcy
court. In Re Burt, 1 Dillon, 439, 440; in Re Goldschmidt, 3
Bank. Reg. 164 ; In matter of Seymour T. Smith, 4 Bank. Reg.
, 377. The claim of Pickhardt and Kutroff existed at the time
of the assignment. The way was, therefore, open for them by
timely action, to secure the control and management of the as-
signed property by that court for the equal benefit of all the
[^editors of Locke. But they elected to lie by until after the
I expiration of the time within which the assignment could be
ka*SJ^ I attacked under the provisions of the Bankrupt Act ; and now
seek, by this suit in the name of the plaintiff in error, to secure
an advantage or preference over all others; this, notwithstand-
ing the assignment was made without any intent to hinder,
delay, or defraud creditors. In order to obtain that advantage
ror preference, the plaintiff in error relies on the paramount
^ I force of the Bankrupt Act, the primary object of which, as this
Court has frequently announced, was to secure equality among
the creditors of a bankrupt. Mayer v. Hellman, 91 U. S. 496-
501; Reed v. Mclntyre, 98 U. S. 507-509; Buchanan v. Smith,
16 "Wall. 277. It can hardly be that the Court is obliged to
^ lend its aid to those who, neglecting or refusing to avail thera-
'^ selves of the provisions of the act of Congress, seek to accom-
"^^ , plish ends inconsistent with that equality among creditors which
those provisions were designed to~secure. If it be assumed, for
the purposes of this case, that the statute of New Jersey was,
as to each and all of its provisions, suspended when the Bank-
rupt Act of 1867 was passed, it does not follow that the assign-
ment by Locke was ineffectual for every purpose. Certainly,
that instrument was sufficient to pass the title from Locke to
his assignees. It was good as between them, at least until Locke,
in some appropriate mode, or by some proper proceedings, mani-
fested a right to have itset aside or canceled upon the ground
/ A of a mutual mistake in supposing that the local statute of 1846
<tAr was operative. An3^ in the absence of proceedings in the bank-
ruptcy court impeaching the assignment, and so long as Locke
did not object, the assignees had authority to sell the property
and distribute the proceeds among all the creditors, disregard-
ing so much of the deed of assignment as required the assignees,
y ^ m the distribution of the proceeds, to conform to the local
Jt statute. The assignment was not void as between the debtorand*"
^ the assignees simply because it provided for the distribution
WHAT STATE LAWS AEE SUSPENDED 23
of the proceeds of the property in pursuance of a statute, none
of the provisions of which, it is claimed, were then in force.
Had this suit been framed for the purpose of compelling the
assignees to account to all the creditors for the proceeds of the
sale of the property committed to their hands, without discrim-
ination against those who did not recognize the assignment and
exhibit their demands within the time and mode prescribed
by the New Jersey statute, a wholly different question would
have been presented for determination. It has been framed
mainly upon the idea that by reason of the mistake of Locke
and his assignees in supposing that the property could be ad-
ministered under the provisions of the local statute of 1846,
even while the Bankrupt Act was in force, the title did not
pass for the benefit of creditors according to their respective
legal rights. In this view, as has been indicated, we do not
concur. —
We are of opinion that, except as against proceedings insti-
tuted under the Bankrupt Act for the purpose of securing the
administration of the property in the bankruptcy court, the
assignment, having been made without intent to hinder, delay,
or defraud creditors, was valid, for at least the purpose of se-
curing an equal distribution of the estate among all the cred-
itors of Locke, in proportion to their several demands, Reed v.
Mclntyre, 98 U. S. 507-509 ; and, consequently, we adjudge only
that the plaintiff in error is not entitled, by reason of any con-
flict between the local statute and the Bankrupt Act of 1877
[1867] or by force of the before-mentioned judgment and the
proceedings thereunder, to the possession of the assigned prop-
erty or of its proceeds, as against the assignees, or to a priority of
claim for the benefit of Pickhardt and Kutroff upon such pro-
ceeds. The judgment is affirmed.
Mr. Justice MATTHEWS (with whom concurred MILLER,
GRAY, and BLATCHFORD, JJ.), dissenting.
Mr. Justice MILLER, Mr. Justice GRAY, Mr. Justice
BLATCHFORD, and myself, are unable to agree with the
opinion and judgment of the court in this case. The grounds
of our dissent may be very generally and concisely stated as
follows :
The New Jersey statute of April 16th, 1846, the validity and
effect of which are in question, is aninsolvent or bankrupt law,
^/
24 JURISDICTION
which provides for the administration of the assets of debtors
who make assignments of all their assets to trustees for cred-
itors, and for their discharge from liabilities to creditors shar-
ing in the distribution. It was accordingly in conflict with the
National Bankrupt Act of 1867 when the latter took effect, and
from that time became suspended and without force until the
iAr repeal of the act by Congress. It is conceded that the 14th
*" ^v section, which provides for the discharge of the debtor, is void
^^ by reason of this conflict, and, in our opinion, this carries with
V it the entire statute. For the statuleJusL^an^ entirety, and, to
>J> Y^v'take away the distinctive feature contained in the 14th section,
Xjf^ destroys the system. It is not an independent provision, but
^ an Inseparable part of the scheme contained in the law.
This being so, the assignment in the present case must be
regarded as unlawful and void as to creditors. For it was made
in view of this statute and to be administered under it. Such
is the express recital of the instrument and the finding of the
fact by the court. It is as if the provisions of the act had been
embodied in it and it had declared expressly that it was exe-
cuted with the proviso that no distribution should be made of
any part of the debtor's estate to any creditor except on condi-
Jof the release of the unpaid portion of his claim,
is not possible, we think, to treat the assignment as though
aw of the state in view of which it was made, and subject
e provisions of which it was intended to operate, had never
ed, or had been repealed before its execution. Because
there is no reason to believe that, in that state of the case, the
debtor would have made an assignment on such terms. To do
so is to construct for him a contract which he did not make and
which there is no evidence that he intended to make. It must
be regarded, then, as a proceeding under the statute of New
Jersey, and as such, with that statute, made void, as to creditors,
by the National Bankrupt Act of 1867. Otherwise that uni-
form rule as to bankruptcies, which it was the policy of the
Constitution and of the act of Congress pursuant to it, to pro-
vide, would be defeated. No title under it, therefore, could pass
to the defendants in error, and the judgment creditors who
acquired a lien upon the fund in their hands were by law entitled
to appropriate it, as the property of their debtor, to the payment
of their claims.
For these reasons we are of opinion that the judgment of the
Court of Appeals of New York should be reversed.
WHAT STATE LAWS ARE SUSPENDED 25
J^ii^ \' HAWKINS & CO. v. LEARNED ^S^^ ^
54 N. H. 333 ' "^ ^
(Supreme Judicial Court of New Hampshire. June, 1874) ^^^
Assumpsit, by L. B. Hawkins & Co. against Lewis M. Learned,"*«ii, v.^^.
to recover the amount of a promissory note, and for goods sold c/ k
and delivered. Writ dated October 24, 1873. December 23/ *^ -^
1873, the defendant was duly decreed to be an insane person, "^^W
by the probate court for Merrimack county, and John C. Smitli a^,^
was appointed his guardian. March 24, 1874, upon the repre/ '^*"'^
sentation of said guardian, said probate court decreed said estate /
insolvent, and appointed John M. Shirley commissioner of in-|
solvency.
At the April term, 1874, said guardian appeared specially
by his attorney, E. B. S. Sanborn, Esq., and moved that this ,
action be dismissed by reason of said proceedings in the probate •
court ; and the questions arising on said motion were reserved 1
for the consideration of the whole court.
SARGENT, C. J. The motion to dismiss in this case is
founded upon Gen. Stats., c. 167, §10, as follows: "When,
upon representation of the guardian of any insane person or:5/^
spendthrift, the judge is satisfied that estate of the ward is not
sufficient to discharge the just debts due therefrom, he may
decree that said estate be settled as insolvent, and thereupon
such proceedings shall be had, decrees made, appeals allowed,
suits disposed of, and the accounts of the guardian adjusted,
ag in the case of insolvent estates of deceased persons.^'
In this case, it is agreed that the defendant was duly decreed
to be an insane person by the probate court, and a guardian
was appointed. The guardian made the proper representation
to the probate court, and the defendant's estate was thereupon
decreed to be administered as insolvent; and after this, at this
term, the guardian appears and moves that this action, which
was commenced October 24, 1873, be dismissed in consequence
of such proceedings in the probate court.
This is the same way a suit would be disposed of in case of
a deceased person whose estate was decreed to be administered
as insolvent. No action shall be commenced or prosecuted
against an administrator after the estate is decreed to be ad-
ministered as insolvent, but the cause of action may be pre-
26 JURISDICTION
sented to the commissioner and allowed, with the costs of any
action pending at the time of such decree — Gen. Stats., c. 179,
§ 8 ; and in such cases no plea is necessary setting forth the de-
cease or the insolvency. When the facts are suggested, and the
court is satisfied that such decrees have been made in the court
of probate, the actions are discontinued in this court at once.
It is urged in argument that' the plaintiffs should be heard
upon the question whether the party is insane, etc.; but that
could not be in this court. The probate court is the tribunal
selected by law to settle that question; and, when once settled
there, it is settled for all other places and all other courts. This
must be so from the nature of the case. If it were not so, the
same man might be held both sane and insane at the same time.
The case of Jones v. Jones, 45 N. H. 123, is directly in point,
under provisions of the statute precisely like the present, and
must control this case.
The authorities cited, that the general bankrupt law of the
United States supersedes all state insolvent laws, do not apply.
J The laws for the settlement of the estates of deceased persons
/though they may provide lor settlin^_estates in the insolvent
^|course. yet are not regarded as generaHnsoly^t laws. It would
not be claimed, probably, that the statute for the settlement of
the estates of deceased persons in^the insolvent course was super-
seded byithe^gQeral_banEFupt law ; an JTf notT'EHen this ^uld
not be, because this statute provides for settling the estates of
insane persons in all respects like the settling of the estates of
persons deceased.
The motion to dismiss must be granted.
0 JOHNSON V. CRAWFORD et al.
^_ r — ^-v
JiJk^^^ 154 Fed. 761
^ •'" ^^'^XUnited States Circuit Court, Middle District, Pennsylvania.
^W .-.>--' March 15, 1907)
^ , l^f/r^fRCHBALD, District Judge. On January 11, 1906, the
t\, '^glaintiff^eeaYered^_iiidgment_Ql.$27-,Z10.60^^^ defend-
laa-*^ \ ants in an action of assumpsit for timber sold; and, having
^aaM^^ failed to obtain satisfaction by execution, on December 20, 1906,
lu^'^'Tuled arL afSdavjt__charging, in substance, that the de|endants
"^^ j^^^-'^N^adL mon^2:-.jIli_property which -tb«y^ -fraudulently cojicealed
"*" and refused to apply to the payment Jif-iJiejudgm^, and there-
WHAT STATE LAWS ARE SUSPENDED 27
upq^secure.d_a warraxit of arrest under the act of assembly of
July 12, 1842 {FThTFair^^^. Upon this, one of the defend-
ants, Crawford, was apprehended, and, having been brought
into court, has moved to quash the writ upon the ground that
in the present state of the law it is not authorized ; the right tc
jpip R bond to take the benefit of the insolvent laws of the state!
being an essential part of the proceedings, and, having been!
suspended by the passage by Congress of the bankruptcy act]
of 1898, the right to the writ falls with it. The motion is justi-
fied by the_ease of Commonwjaj^jy^(X^Hara»_6_Phila^02, wherey
,itjwas held that^^jwarrant of arrest under the act of jj42^ul5l )
not be prosecuted in the faee]^5l_iiie_existiiigj3an^ru^^ |
theTnsolvent laws of the state being thereby made inoperative./
But it was held^,-,Qn-^the other -hand, in Gregg v. Hilsen, 12
Phila. 348, by a court of equal authority^ just-the^ contrary i^^
tlus, tEat nothing short of actual proceedings in bankruptcy
would prevent a recourse to the writ; and the_question may,
therefore be^regarded^s an op£n— one. The further position
taken in the O'Hara Case, that the writ was obnoxious to the
bankruptcy law and so not allowable, because it would enable
the execution creditor to obtain a preference, is an objection
which would equally apply to a fi. fa. or other process to enforce
the collection of a judgment, and is, of course, not tenable.
Chandler v. Siddle, 3 Dill. 479, Fed. Cas. No. 2594; Berthelen
v. Betts, 4 Hill (N. Y.) 572; In re Hoskins, Crabbe, 466; Ex
parte Winternitz, 18 Pittsb. Leg. J. (N. S.) 61. And in Scully
v. Kirkpatrick, 79 Pa. 324, and Hubert v. Horter, 81 Pa. 39,
the writ was sustained notwithstanding bankruptcy, which neg-
atives any such idea; the fact that the debts there were not
discharged being immaterial. This is a federal question, how-
ever, and must be decided on principle; state decisions at the
best being merely advisory.
The act of the Legislature by which the warrant of arrest ia f^f^^ ^
given^m" suBs!ance, provides that in all civil cases, where a
party cannot be arrested or imprisoned, it shall be lawful for
the plaintiff, having begun suit or obtained judgment, to apply
for a warrant to arrest the defendant, upon proof by affidavit
that he is about to remove any of his property out of the juris-
diction of the court with intent to defraud his creditors; or
that he has property which he fraudulently conceals, or money
or property which he unjustly refuses to apply to the payment
of the judgment rendered against him ; or that he has assigned,
28 JURISDICTION
removed, or disposed, or is about to assign, remove, or dispose,
of his property with like fraudulent intent ; or that the debt in
suit was fraudulently contracted. And, the defendant having
been thereupon brought in, if the judge by whom the writ was
allowed is satisfied that the charges made in the affidavit are
substantiated, and that the defendant has done or is about to
do any of the acts complained of, he shall commit him to the
jail of the county in which the hearing is had, to be there de-
tained until he shall be discharged by law: provided that he
shall not be committed, if he pays the debt or demand with
costs, or gives satisfactory security to pay the same with inter-
est, within 60 days, if the demand is in judgment and the time
allowed for a stay has expired; or gives bond, with sufficient
sureties, that he will not assign or remove his property, where
that is the fraudulent design charged; or gives like bond to
apply within 30 days to the common pleas of the county for the
benefit of the insolvent laws of the state, and to comply with
the requirements of such laws, and, failing to obtain a discharge,
shall surrender himself to the jail again. After having been
committed, he may also be relieved from custody upon judg-
ment being rendered in his favor in the pending suit, or upon
assigning his property and obtaining a discharge in due course,
or by paying or securing the demand with costs, or upon giving
either of the bonds mentioned as aforesaid. In taking the ben-
efit of the insolvent laws, either before or after commitment,
the defendant is required, as to the matters set forth in his
petition, the notice to be given to creditors, the oath to be ad-
ministered to him, and all things touching his property, to pro-
ceed agreeably to the provisions of the act of June 16, 1886
(P. L. 729), entitled "An act relating to insolvent debtors;"
the trustee to whom the assignment is made being given the
same powers and duties, creditors the same rights and remedies,
a discharge the same effect, and the defendant made liable civilly
and criminally the same as if the provisions relating thereto
were in the warrant of arrest act fully and at length enacted.
Turning to the act of 1836 for a better junderstanding of Jheag
proyisifing, it appears that injiig jBetition _to the courtfor_thg
benefit of the insolvent Igjsa-tli^ debtor is tomaSe a statement
under oath~of aUJi^ property and effects^andofJiie^debts he
owes, giving the names of his creditors, the amounts due to
eacK of them, the nature of the indebtedness, and the causes of
his insolvency. And a time for a hearing thereon having been
WHAT STATE LAWS ARE SUSPENDED 29
fixed, and due notice given to creditors, he is thereupon to ex-
hibit to the court a just and true account of his debts, credjts,
ahd estate, producing, if required, his books and papers relating
thereto, and answering all questions that may be put to him
touching the same ; and having taken an oath to deliver up all
his possessions, and denying any transfer or conveyance in
fraud of creditors, he is to execute an assignment thereof to a
trustee for the benefit of creditors, being thereafter relieved
and discharged from- liability to imprisonment by reason of any
judgment or decree for the payment of money or for any debt
or damages before that contracted, occasioned, or accrued, but
property subsequently acquired is still to be liable, although
after obtaining a discharge it may, by order of court, on con-
sent of a majority in number and value of creditors, be made
exempt from execution for seven years as to any previously
existing debt or cause of action. It is further made the duty
of the trustee to collect and convert the property so turned
over to him, and, having accounted therefor, to distribute the
same to creditors, under the direction of the court, upon due
proof made of their respective claims. This in^ a general Way*
was the system of insolvency prevailing at the time the act of
1842, authorizing a warrant of arrest was passed. More recently
by act of June 4,~I9DI (P. L. 406), there has been a revision
and amplification of the law, modifying ~in some respects the
provisions of the act of 1836 which is in terms repealed ; but
being in the main the same, the most important difference being
that_yoluntary assignments for the benefit of creditors, as well
as those made after arrest upon civil process are provided_for, '
and that creditors, upon accepting a dividend from the insolvent
estate, are required to execute releases. So stood the law at the
time the warrant of arrest in the case in hand was issued^^..-— ^
That, under the circumstances and subject to the condH
tions named in the statute, the right to such a warrant exists in
the federal, th$-s^me as in the state CQijrtspthgJErC9»:J5e]^o
serious.,«t*iestion. As a remedy by execution to reach the prop-
erty of the debtor given by the state law, it either is carried
into the federal law, as provided by § 916 of the Revised Statutes
[U. S. Comp, St. 1901, p. 684] ; or, being sanctioned by the state
statute and so being agreeable to the usages and principles of
law, it is to be regarded as a writ, which, although not specifically
provided for by act of Congress, is capable of being adopted as
necessary for the full and complete exercise of the jurisdiction
so JURISDICTION
of the federal courts, within the meaning of section 716, It y
stands in fact much the same as a capias ad satisfaciendum, of/
which it may be considered as only another form. Wayman v.
Southard, 10 Wheat. 1, 6 L. ed. 253; Bank v. Halstead, 10
Wheat. 51, 6 L. ed. 264 ; Ex parte Boyd, 105 U. S. 647, 26 L. ed.
1200; Lamaster v. Keeler, 123 U. S. 376, 8 Sup. Ct. 197, 31 L. ed.
238; U. S. V. Arnold, 69 Fed. 987, 16 C. C. A. 575; Stroheim
V. Deimel, 77 Fed. 802, 23 C. C. A. 467. Of course, it goes into
the federal law, if at all, with all its essential incidents, and
the method of procedure marked out with regard to it by the
state statute has therefore to be substantially followed. And
the defendant, after having been taken into custody, and being
about to be committed, having the right, as a part of it, to be
released upon giving bond to take the benefit of the insolvent
laws, or at least agreeably to the provisions of these laws, if this
right is to be regarded as inhering in the remedy, and has been
I taken away by the passage of the bankruptcy act, as argued,
without anything else being supplied, the right to the writ itself
is also therewith necessarily abrogated.
That the right to relief agreeably to the insolvent laws of the
state, either before or after commitment, iniieres m the remedy,
can hardly be doubted. This alternative is expressly given
by the statute; it being declared that the defendant, upon the
facts on which the writ is predicated having been found against
him, shall not be committed, if he shall enter into a bond to the
plaintiff to apply within 30 days for the benefit of these laws,
and shall comply in all respects with their requirements ; or,
in default thereof and failing to obtain a discharge, shall sur-
render himself into custody again. It must be assumed that the
Legislature, in allowing the writ, would not have sanctioned it
upon any other terms; and the measure of relief which is so
afforded being thus in contemplation, as an essential part of the
proceedings, they are left incomplete and dismembered without
it. In this respect, it differs from the case of a^a^_saf the right
to be discharged from custody, which is there given by resort
to the insolvent laws, being a separate and independent statutory
provision, as to which, if it is taken away or suspended by the
passage of a bankruptcy act, the defendant is simply left with-
out the opportunity to be released which would otherwise be
afforded him. Steelraan v. Mattix, 36 N. J. Law, 344; In re
Rank, Crabbe, 493, Fed. Cas. No. 11,566. It is to be noted, how-
ever, that these observations do not apply where the fraudulent
/
WHAT STATE LAWS ARE SUSPENDED
design charged, upon which the warrant of arrest is allowed, is\
that the defendant is about to remove his property out of the Y^^u_^^
jurisdiction of the court with intent to defraud his creditors; Vi^^V*
the alternative, in order to escape commitment, where that is
the fact, being simply that he shall give bond not to remove it
nor to prefer other creditors. Neither are they applicable where
the defendant gives security to pay the debt or demand with
interest and costs, within 60 days if it is in judgment and the
time for a stay has expired, or, if not in judgment, within a
like period after it shall have been recovered, in either of which
cases the superseding of the insolvent laws by a bankruptcy law
is of no consequence, and the right to the writ therefore as to
them is beyond controversy.
It is also, of course, unquestioned that state insolvency laws, \
whether a discharge of the debtor from his liabilities is thereby 1
provided tor or^not, are superseded and suspended by the pas- *
sage of a federal bankruptcy law; the authority of Congress on
the subject being paramount. Sturges v. Crowninshield, 4
Wheat. 122, 4 L. ed. 529 ; Ogden v. Saunders, 12 Wheat. 213,
6 L. ed. 606 ; Tua v. Carriere, 117 U. S. 201, 6 Sup. Ct. 565, 29
L. ed. 855; In re Salmon (D. C.) 143 Fed. 395; In re Interna-
tional Coal Mining Co., 143 Fed. 665; Harbaugh v. Costello,
184 111. 110, 56 N. E. 363, 75 Am. St. Rep. 147 ; Parmenter Mfg.
Co. v. Hamilton, 172 Mass. 178, 51 N. E. 529, 70 Am. St. Rep.
258; In re Reynolds, 8 R. I. 485, 5 Am. Rep. 615; Potts v.
Smith Mfg. Co., 25 Pa. Super. Ct. 206. Only, however, as tEe"
J;wo conflict, is this true, and it is only, therefore, where the II yy
bankruptcy law covers and supplies that which is undertaken
to be disposed of by the state law, that the latter must give wa^
It does not apply, for instance, to voluntary assignments for
the benefit of creditors, although forming a part of the general
insolvency system of the state and regulated to a certain extent
by statute ; it being held that, as these are good at common law,
they are to be carried out and given effect unless they are
directly called in question by a petition in bankruptcy. Mayer
V. Hellman, 91 U. S. 496, 23 L. ed. 377; Boese v. King, 108
U. S. 379, 2 Sup. Ct. 765, 27 L. ed. 760 ; Beck v. Parker, 85 Pa.
262, 3 Am. Rep. 625 ; Reed v. Taylor, 32 Iowa, 209, 7 Am. Rep.
180; In re Sievers (D. C.) 91 Fed. 366. The same is true, also,
of proceedings given by statute to wind up the affairs of an
insolvent corporation by the appointment of a receiver (In re
Watts & Sachs, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. ed. 933 ; In
d2 JURISDICTION
re Wilmington Hosiery Co. [D. C] 120 Fed. 180) ; and so is it
as to debts and claims which are not discharged by bankruptcy
(Scully V. Kirkpatrick, 79 Pa. 324, 21 Am. Rep. 62; Hubert v.
Horter, 81 Pa. 39; Ex parte Winternitz, 18 Pittsb. Leg. J.
[N. S.] 61) ; as well as to those persons whose debts do not ag-
gregate the requisite amount (Shepardson's App., 36 Conn.
23) ; or who are not subject to proceedings, such as wage-earners,
farmers, and corporations not made specifically liable (Ritten-
house's Estate, 30 Pa. Super. Ct. 468). Neither, as it has been
held, does the existing bankruptcy law meet the case of an ab-
sconding debtor, so as to prevent the issuing of a domestic
attachment. McCullough v. Goodhart, 8 Dist. (Pa.) 378. Poor
debtor laws, and those which provide for the release of insolvent
convicts, would seem to be in the same situation ; the bankruptcy
law having no provision adapted to these cases, and the parties
to whom they apply being, otherwise, left without remedy. Jor-
dan V. Hall, 9 R. I. 219, 11 Am. Rep. 245. And, notwithstand-
ing the concession made above, not a little could also be said in
favor of those insolvent laws, such as the act of 1836, which
merely provide means for relieving from custody a debtor who
has been arrested upon civil process without undertaking to
discharge him from his liabilities. Steelman v. Mattix, 36 N. J.
Law, 344; In re Rank, Crabbe, 493, Fed. Cas. No. 11,566; Sulli-
^V^^r^an V. Hieskell, Crabbe, 525, Fed. Cas. No. 13,594. Subject to
/ these exceptions, however, but without losing sight of their sig-
ji^ nificance, the insolvent laws of a state being rendered inopera-
tive by an existing federal bankruptcy law, those of Pennsyl-
vania must be regarded as no longer in force, with all the at-
tendant consequences, whether the act of 1836 or that of 1901
V»A LA© taken to represent them.
*^ tir'^ut it by no means follows that the right to a warrant of
larrest such as is now in controversy is thereby disposed of. The
state insolvency system which is superseded by the enactment
by Congress of a bankruptcy law is one thing, and the relief
j accorded to a debtor in custody under a warrant of arrest,
\ agreeably to its provisions, is another, and the two are not to
Jhe confounded. The debtor, in other words, secures a release,
not by virtue of the insolvent laws, but simply in conformity"
with them ; that is to say, by following the course which is there
marked out, the one statute, so far as it is applicable, being
written into the other. How far in this respect the act of 1901
takes the place of the act of 1836, which has been repealed by
WHAT STATE LAWS ARE SUSPENDED
33
it, it is not important to inquire. Whichever be taken, having
been made a constituent part of the act of 1842, the right
thereby secured to a debtor in custody under a warrant of ar-
rest, either before or after commitment, is preserved and re-
tained and made available to him without regard to the fate of
the insolvent laws as such, whether suspended or repealed, being
in effect independent of them. I do not lose sight of the fact
that the bond, which the defendant is to give, is in terms to take
the benefit of these laws and to comply with their requirements,
and that the petition which he is to present to the court for leave
to do so is to set forth what is directed by the act of 1836, and to
be verified in accordance with it. But a careful reading of the"
act of 1842 (§§14, 15, 16) will disclose that this amounts to no
more than an adoption of the course to be pursued and the steps
to be taken by the act referred to; the reference over being
made for the sake of convenience merely and to avoid unneces-
sary repetition. Suppose, for example, that the provisions oi^
the act of 1836 had been written into the act of 1842 at length
— as by express declaration is in effect the case — and it was
there enacted, as now, that upon complaint being made of any
of the several matters, upon which the writ is allowable, a war-
rant should go out, and upon the defendant being brought in
and the facts found against him, he should be committed, to be
released, however, upon giving bond that within 30 days he /
would petition the court for leave to assign his property for the, c^
benefit oi creditors to be administered and distributed under a^
^=^--^
the direction of the court; and so on, according to all that is
provided for. Can there be any serious question that the war-
rant as so authorized could issue, regardless of whether or not
the state insolvent laws from which these provisions had been
taken had been superseded by an act on the subject of bank-
ruptcy? And yet that in effect is the situation here. Or, td^'^-^t^i
put it in anotTieFloiTOpthrelict~of71842,^m adopting incor- v^ y ^
porating into itself, as an alternative of the proceedings upon ^ C^
the warrant, the_cours^marked out by tlie insolveiit_jawsfor /
t^ relief q^^Jf ailing ^ebtor^ not thereby^ made^j|art_^_^e I
Jngflls;ency system of the state, nor "so Tied up to it as to be ob<^
noxious to an existing bankruptcy law and be nullified thereby.
A petition in bankruptcy, duly prosecuted, is no doubt effective
to avoid the proceedings. Barber v. Rogers, 71 Pa. 362. But
the statute by which the warrant is given is no more affected
by the bankruptcy law itself, and is no more incompatible with
H. & A. Bankruptcy — 3
34 JURISDICTION
it — aside from the question of getting a preference — than is that
which sanctions a capias or any other execution process to reach
the person or property of the debtor of which it is only an addi-
tional and special form.
Ttiis disposes^pf the case; but there is another ground upon
which the right to the writ^may be sustained. As pointed out
above, a warrant of arrest, being authorized by the statutes of
the state, must be regarded as agreeable to the usages of law;
and, being necessary to a complete exercise of the court's juris-
diction, is capable of being adopted, although not specifically
provided for by any federal statute. Rev. St. § 716 [U. S. Comp.
St. 1901, p. 580]. But in incorporating it into the federal law
the court is only called upon to preserve the substance ; and if,
as argued, notwithstanding the views expressed above, the insol-
. vent laws of the state are superseded and the defendant thereby
f^AO!>\, deprived of the right to resort to them which he would other-
^"^^Jl^k. wise have as a means of being relieved from custody, the bank-
<^-f-^ ruptcy law by which this is brought about may well be looked
'^ to, to supply what is lacking. It is equally effective and entirely
appropriate, the commitment of the defendant being merely
until he shall be discharged by law; and is even more readily
available, no bond being required nor anything in fact but the
filing of a proper petition. Proceedings in bankruptcy also
undoubtedly do away with the necessity for taking the benefit
of the insolvent laws, although a bond may have been given
by the defendant to do so. Nesbit v. Greaves, 6 Watts & S.
(Pa.) 120; Barber v. Rogers, 71 Pa. 362. And why, then, may
not a complete substitute be found in them? The writ is to
be saved, if possible; and, if it can be done by falling back
upon the bankruptcy law in this way, there is no reason why
the practice should not to that extent be modified, not only in
the federal, but in the state courts as well, it being desirable,
of course, if not indeed necessary, that the two should be si
harmony. It is true that a resort to bankruptcy would not
release the defendant where the debt or demand upon which
the warrant of arrest was predicated was not dischargeable.
Scully V. Kirkpatriek, 79 Pa. 324, 21 Am. Rep. 62 ; Hubert v.
Horter, 81 Pa. 39; In re Wintemitz, 18 Pittsb. Leg. J. (N. S.)
61. But in that ease the right to the benefit of the insolvent
laws would not be interfered with, and there is no occasion there-
fore to consider it. * * *
The rule to show cause why the warrant of arrest should not
WHAT STATE LAWS ARE SUSPENDED 35
be quashed is discharged; and thereupon the defendant is com-,
mitted to the common jail of Lycoming county, at Williamsport, ^^^^^
Pa,, to be there detained until he shall be discharged by law. '
OLD TOWN BANK OF BALTIMORE v. McCORMICK et al. a.^****^
96 Md. 341, 53 Atl. 934 ^"^^^hreSy^
(Court of Appeals of Maryland. January 21, 1903) ^ ^^*S»-,'^
FOWLER, J. This is an appeal from the circuit court for ^ '
Harford county. On the 22d May, 1901, the Old Town Bank of
Baltimore filed a petition in insolvency against J. Lawrence
McCormiek and others under the provisions of article 47, §§ 22,
23, of our Code, relating to insolvents, as amended by the Act
of 1896, e. 446. The defendants each pleaded to the jurisdiction
of the court. Their pleas are identical. The plea is as follows :
"(1) That Ihis court has nft jurisdiction in these proceedings,
because the insolvency laws of the state of Maryland have been
suspended, superseded^ jor-rendered^inoperatiYe by the passage
of a national bankrupt law by the congress of the United States,
and this defendant pleads the said bankrupt law in bar of the
jurisdiction of this court in the premises." The plaintiff bank
demurred to these pleas, but the learned judge below over-
ruled the demurrers, and his certificate states the question raised
and decided on the demurrers as follows: ''That the enactment
of the act of congress approved July 1, 1898 [U. S. Comp. St.
1901, p. 3418], entitled 'An act to establish a uniform system of
bankruptcy throughout the United States,' and supplements
and additions thereto, suspended the ftperation of article 47 of
the Code of Public General Laws of Maryland of 1888, entitled
'Insolvents,' and all amendments thereof, and especially sus-
pended the operation of § 22, (as repealed and amended by the
act of 1896, c. 446), and § 23 thereof, including the operation o
said article on persons ' engaged chiefly in farming and tillage of
the soil,' and the class of persons to which the defendant J
Lawrence MeCormick is alleged in the petition to belong, and
that this court is without jurisdiction to grant any of the relief
prayed for in said petition." From the order dismissing its
petition, the plaintiff has appealed. The issue thus presented
is clear and well defined. The defendants contend that the
enactment of the national bankrupt act suspended the operation
of the whole insolvent law of, this state, whUe t^ie plaintiff
36
JURISDICTION
maintains the position that the passage of this national law by
congress suspends the operation of our insolvent law only so far
as our law conflicts with the national law, and that, inasmuch
\as the present bankrupt law (act of congress of 1898 [U. S. Comp,
St. 1901, p. 3418]) contains no provision for involuntary bank-
ruptcy of persons engaged chiefly in the tillage of the soil, the
provisions of our state insolvent law, so far as they apply to that
excepted class, remain in full force and effect. The question
'presented must depend, in the first place, upon the provisions
of the bankrupt law applicable here. § 4, " Who may become
bankrupts," subsection (a), provides that "any person who
owes debts, except a corporation, shall be entitled to the benefits
of this act as a voluntary bankrupt." And by subsection (b)
it is enacted that ' ' any natural person, except a wage earner or a
person engaged chiefly in farming or the tillage of the soil
* * * may be adjudged an involuntary bankrupt upon de-
fault or an impartial trial, and shall be subject to the provi-
sions and entitled to the benefits of this act. * * *" •'■'•'"'
1. From the year 1819, when Chief Justice Marshall delivefed
the opinion of the supreme court of the United States in the
leading case of Sturges v. Crowninshield, reported in 4 Wheat.
122, 4 L. ed. 529, it has been h^d that the provision of the con-
stitution of the United States (article 1, § 8, subd. 4) providing
that ' ' congress shall have power to establish uniform laws on the
subject of bankruptcy, ' ' does not in itself inhibit the states from
passing valid insolvent laws. In the case just cited it was said :
* Jt is nn|, t.]ip Tnere existence of the power, butjts^ercisjgijjhjnb
is incompatible with the exercise of the samp powpr bv_^tjiip
states. ' * And so, also, there has been a uniform line of decisions
^to the effect that, so far as congress has failed to legislate with
reference to insolvents, state laws relating to them are operative.
Thus, in Sturges v. Crowninshield, supra, it is said that "if it
is not the mere existence of the power, but its actual exercise by
the congress of the United States, which prevents the operation
of state insolvent laws, it is obvious that much inconvenience
would result from that construction of the constitution which
should deny to the legislatures of the states the power of acting
on this subject in consequence of the grant to congress." "It
may be thought more convenient," continued the court, "that
much of it should be regulated by state legislation, and congress
may purposely omit to provide for many cases to which its power
extends. It does not appear to be a violent construction of the
WHAT STATE LAWS ARE SUSPENDED
37
X^
constitution, and certainly a most convenient one, to consider
the power of the states as existing over such cases as the laws
of the land may not reach." But in Ogden v. Saunders, 12
Wheat. 213, 6 L. ed. 606, the rule is explicitly laid down tha
"the power of congress to establish uniform laws on the subject
of bankruptcy does not exclude the rights of the states to legis
late on the same subject, except when the power has been actually
exercised, and the state laws conflict with those of congress."
And to the same effect are Baldwin v. Hale, 1 Wall. 229, 17
L. ed. 531 ; Tua v. Carriere, 117 U. S. 210, 6 Sup. Ct. 565, 29 L.
ed. 855 ; Ex parte Eames, 2 Story, 322, Fed. Cas. No. 4,237. In
the recent case of R. H. Herron Co. v. Superior Court of City
and County of San Francisco, decided in April of last year by
the supreme court of California, and reported in 68 Pac. 814,
136 Cftl,. 279, it was held that, "though the federal bankrupt
acts suspend operation of any state laws of insolvency where
there is any conflict between the two, the state laws remain in
full force in so far as there is no conflict ; and as the bankruptcy
act of 1898 expressly exempts^lPeorporations from voluntary
bankruptcy, and only makes subject to involuntary bankruptcy
'corporations engaged principally in manufacturing, trading,
printing, publishing, or mercantile pursuits,' the provisions of
the state law applicable to a corporation engaged principally in
mining [as was the California corporation] are not suspended
In the course of its opinion the court said : "If the bankruptcy'^ ^
act excepts a class of cases from its operation, either in express I ,--r^*V
terms or by necessary implication, it must be considered that it I ^^^^V
was the intention of congress not to interfere in that class of J
cases with the laws of the several states in reference thereto. ' ' K
number of cases are cited by Justice Harrison, who delivered the
opinion of the court, and among them is that of Clarke v. Ray, 1
Har. & J. 318 ; Chief Justice Chase delivering the opinion of the
court. He said : ' ' The legislatures of the several states have com-
petent authority to pass laws for the relief of all persons who are
not comprehended within the act of congress." See, also. Van
Nostrand v. Carr, 30 Md. 131. It should be remarked, however,
that the situation in the California case just cited somewhat,
differs from the one here presented. For there the insolvent
proceeded against under the California insolvent law was ex-,
pressly excepted from the provisions relating to the voluntary
system, and was not included within, and therefore excepted by
implication from the class of corporations made subject to the
i£tL^
>
38 JURISDICTION
involuntary system, while here the defendant who is sought to
be declared an insolvent under our insolvent law is included
under the general terms of the voluntary system, and expressly
excepted from the involuntary system. See, also, Shepardson's
Appeal, 36 Conn. 23; Geery's Appeal, 43 Conn. 289, 21 Am.
Rep. 653; Steelman v. Mattix, 36 N. J. Law, 344; 16 Am. &
Eng. Ene. Law, 642.
i_ . 2. This brings us to the real question in the case, namely, is
vq^\^^ there any conflict between our insolvent law and the federal
^ bankrupt law? We have already transcribed the provisions of
§ 4, by which it appears that the defendant is expressly
excepted from the provisions of the act relating to involuntary
bankruptcy, and therefore as to this class to which the defendant
belongs (i, e., farmers or tillers of the soil) the federal power
has not been exercised. And it therefore follows that, if this
class is not within the state law, there is no existing provision
' under which those embraced within it can be compelled to dis-
tribute their assets fairly and equally among their creditors.
In Geery's Appeal, supra, it was said: **The benefit of this
principle [the equal distribution of a debtor's property without
preference] cannot be denied to a creditor without doing him
injustice. It is a remedy which he relied on in givinc^ credit^
andto which he is fairly entitled, If that remedy is not to be
found in the bankrupt act, it will not be presumed that congress
intended to take away the remedy provided by the state. Con-
gress having limited and restricted the operation of the bank-
rupt act, leaving a number of cases to which it does not apply,
it will not be presumed that it was thereby intended to leave
creditors in such cases entirely without remedy, as must be the
case if the state law is entirely inoperative." But can it be
properly or correctly said that any conflict can exist between
the state and the federal law so long as the latter by express
terms excludes from its operation the subject or class of persons
expressly provided for by the state law? The power to enact
insolvent or bankrupt laws is vested in the states, and it cannot
be extinguished except by the establishment of a federal system
in conflict with the state law. And this federal system of bank-
ruptcy must be a genuine bankrupt law (Sturges v. Crownin-
shield, supra), or, in other words, as expressed in Ogden v.
Saunders, supra, the power to pass a uniform system of bank-
ruptcy must be actually exercised, and the state law must be in
conflict with it in order to render the latter inoperative. The ques-
1^i
WHAT STATE LAWS ARE SUSPENDED 39
tion, therefore, logically arises, does the present federal bankrupt
law actually provide for involuntary proceedings against farm-
ers? And the answer must be that it does not, but the answer of
the defendant goes further and necessarily must do so in order to
save his case. He says it is true that while this class is not includeaj
in, and is expressly excepted from, the involuntary feature of the / ^'4
system, yet it is included in the voluntary feature, and therefore /-^/^'^^
it is within the scope of the national system. We cannot approVS"^ 1a»o^
of this method of reasoning, not only because it would seem to ^^^
be a " contradiction in terms to say that cases excepted from the
operation of the most important part of the act are included in
its scope, ' ' but because it would seem to involve the proposition
that the federal power can render inoperative the state insolvent
laws applicable to involuntary insolvency, without establishing
a genuine bankrupt law to take the place of the state law. As
we have already seen, it has been held from early day that it is
only to the extent that congress has actually legislated upon the
subject that the statutes of the several states are suspended by
its legislation. How, then, can it be said that a failure to legis-
late— in other words, an express exclusion — raises a conflict?
But without pursuing this question further, it seems to us that
the position taken by the defendant must necessarily lead to
the conclusion that if the congress of the United States can, by
including this class in the voluntary part of the system, and
excepting it from the involuntary part, withdraw it from the
operation of our state insolvent law, it can do the same in regard
to any two or more classes (as, for instance, merchants, traders,
and corporations) ; and the result would be that, in spite of the
failure on the part of congress to establish a bankrupt law (that
is, to actually exercise the power conferred by the constitution
to pass a genuine bankrupt law), state legislation would become
inoperative, and creditors would be deprived of a remedy to
which, as was said in Geery's Appeal, supra, they are fairly
entitled.
But it was forcibly argued on the part of the defendants that
§70, subsec. ''b," of the bankrupt act of 1898 [U. S. Comp.
St. 1901, p. 3452], shows that it was the intention of congress
to substitute that act for every provision of every insolvent law
of the several states. It provides as follows: ''Proceedings
commenced under state insolvent laws before the passage of this
act shall not be affected by it. ' ' To sustain their view, the case
of Manufacturing Co. v. Hamilton, 172 Mass. 178, 51 N. E. 529,
40 u; JURISDICTION
70 Am. St. Rep. 278, decided in 1898, was relied on. But all
this ease decides is that the federal act deprives the state court
of jurisdiction to entertain jurisdiction in insolvency proceed-
ings filed after 1st July, 1898, when the federal act went into
force. Or as the court said: "The act is to go into full force
and effect upon its passage. That is to say, the rights of all
persons, in the particulars to which the act refers, are to be
determined by the act from the time of its passage." After
mentioning a number of the rights which are determined by the
act, the opinion continues: ''These various provisions affecting
the rights and conduct of debtors and creditors are different from
those previously existing in most of the states, and perhaps
different from those found in the laws of any state, and they
supersede all conffkting_provisions. ' ' In the concluding part
of the opinion the distinguished judge who has recently been
appointed chief justice of the supreme judicial court of Massa-
chusetts said that the language of § 70, subsec. " b, " " was
chosen to make clear the purpose of congress that the new
system of bankruptcy should supersede all state laws in regard
to insolvency from the date of the passage of the act"; but
necessarily this language means only that aU conflicting provi-
^/sions of the state law were thus superseded, for this is the
well-settled proposition which he had just announced in a
preceding sentence, and which we have quoted above. If, there-
fore, we are correct in the conclusion already reached, that there
is no conflict between the provisions of our insolvent law and
the present bankrupt law, it follows that the language of § 70
relied on by the defendant can have no influence upon our
conclusion in this case.
But again, it was urged that there is a distinction between this
case and cases which arose under laws which did not include the
class within its scope — as, for instance, where the bankrupt act
applied only to debtors whose debts exceeded $300. It was held
in Shepardson's Appeal, supra, that in eases where the debts
were less than $300 the state law was not suspended, and debtors
of that class could be proceeded against under state laws. But
the true rule was laid down by Chief Justice Marshall in Sturges
V. Crowninshield, supra, that the power of the state continues to
exist over such^jease^asjjifijffederal Jlatw.does not reach. And
therefore, if eases involving involuntary proceedings against a
class are not provided for by the federal law, such cases are
within the reach of the state law, in spite of the fact that the
WHAT STATE LAWS ARE SUSPENDED
41
members of this same class may avail themselves of the voluntary-
feature ; otherwise the rule laid down by Chief Justice Marshall
would have to be changed so as to read that the power of the
state exists only over such cases as are against natural persons
or corporations not within any class provided for by any provi-
sion of the federal law. If this were the rule, then, of course^
it would follow, as contended, that the defendant being of thCj
class called "farmers," and the bankrupt act having provided
that he may avail himself of the voluntary feature, no case
against him could be reached by the state law. But in our
opinion, this is not the proper view, for, as we have already^said", [
it is not within the power of congress to render inoperative the I
involuntary feature of state insolvent laws as to any particular/
class by excepting that class from the involuntary part of the]
national law. Otherwise the result would be that the state laws
as to involuntary insolvency would become inoperative by the
mere existence of the power of the United States to establish
a system of involuntary bankruptcy. We have seen, however,
that it is not the mere existence, but the exercise of the power
to establish a genuine bankrupt law in conflict with the state
laws, which renders the latter inoperative. Sturges v, Crownin-
shield, supra.
In conclusion, it may be proper to say that if it is the policy
of our state to render farmers and tillers of the soil like other
persons subject to the involuntary system of our insolvent laws,
as it is declared to be by the provisions of our Code (article 47,
§§ 22, 23), we should not by any strained construction of an act
of congress, or by a course of ingenious reasoning, attempt to
thwart this purpose.
From what we have said, it will be seen that we are of opinion
that the order appealed from should be reversed. Order re-
versed and new trial awarded.^
2— Ace. Burk's Estate, 34 Pa.
Co. Ct. Eep. 642 ; Lace v. Smith, 34
R. I. 1, 82 Atl. 268. See, also, note
in 11 Mich. Law Bev. 60.
"See, as to the effect of the Fed-
eral Act upon state statutes, in the
cases of:
Persons Owing Less Than $1,000.
— Littlefield v. Gray, 96 Me. 422,
52 Atl. 925.
Corporations (before 1903 amend-
ment of §4b). — Herron & Co. v.
Superior Court, 136 CaT.~^2la^8
Pac; . 814, _89 A. S. B. 124 ; Kejt
stone X!q. v. Superior Court, 138 Cal.
738,-12-£ac^398; In re Hall Co., 121
Fed. 992: (after 1910 amendment of
§ 4b) ; In re Weedman Stave Co.,
199 Fed. 948.
Building and Loan Associations.
— Kurtz V. Bubeck, 39 Pa. Super.
Ct. Eep. 370; Continental
//.*
§=Mt>d^ H.^ C ^"^^UiA^Juir
42 JUBISDICTION
SECTION II
OF PERSONS
A. Territorial Jurisdiction
1. natural persons
I, -<^ <r In re PLOTKE
l^M^ 104 Fed. 964, 44 C. C. A. 282
(Circuit Court of Appeals, Seventh Circuit. November 22,
1900)
SEAMAN, District Judge. The alleged bankrupt, Emily
Plotke, appeals from an order of the district court whereby she
is adjudicated a bankrupt upon a creditors' petition filed May
3, 1899. The petition states that "Emily Plotke has for the
greater portion of six months next preceding_the date of filing
this petition had her principal place of business and her domi-
cile at Chicago, ' ' in said district, and * * owes debts to the amount
of $1,000 and over"; that she is insolvent, and within four
months next preceding * ' committed an act of bankruptcy, ' ' and
on January 3, 1899, made ' ' a general assignment f or theJifinefit
J^fjier CT^editorsjtq^one John Popjpowitz^" which was duly filed
and recorded. The subpoena issued thereupon was returned by
the marshal as served within the district on Emily Plotke, "by
leaving, a true copy thereof atjier usual place of abode, with
Charles Plotke, an adult person, who is a member of the family. ' '
On May 29, 1899, the appellant filed a verified plea, which
reads as follows: ^^
"And the said Emily Plotke, (specially limiting her appear-
ance for the purposes of this pleajTin her own proper person
comes and defends against the foregoing proceeding, and says
that she has not had her domicile within the territorial limits
and jurisdiction of this court for the six months next preced-
ing the filing of the petition herein, to wit, six months next
preceding May 3, A. D. 1899, nor has she had her domicile
within the territorial limits of the jurisdiction of this court as
aforesaid during any part of said period of six months, nor has
,« Assn. V. Superior Court, J63 Calif. Educational Corporations. — Dille
A P ■ 579j^,126 Pac. 476; In re New~York v. People, 118 111. App. 426.
B. & L. Bank, 127 Fed. 471.
NATURAL PERSONS 43
she now her domicile therein, nor has she had her principal
place of business within the territorial limits and jurisdiction of
this court for the greater part of the six months next preced-
ing the filing of the petition herein, to wit, six months next
preceding May 3, A. D. 1899, but that before and at the time of
the filing of the petition herein as aforesaid, on, to wit. May 3,
A. D. 1899, and for more than five years prior thereto, she, the
said Emily Plotke, was, and from thence hitherto has been, and
stiUJSjjmdinginthe city of St. Louis, and jhe state of Missouri,
and not in the said Northern district of Illinois, and state of
Illinois, and that she, the said Emily Plotke, was not found
or served with process in this said proceeding in said Northern
district of Illinois, or in said state of Illinois. Wherefore she
says this court is wholly without jurisdiction in the premises,
and this she is ready to verify. Wherefore she prays judgment,
if this court here shall take jurisdiction and cognizance of the
proceedings aforesaid. ' '
The petitioning creditors filed a replication, and the issues
thereupon were referred for hearing to a referee, who reported
the testimony taken, with findings sustaining the plea and recom-
mending that the petition be dismissed for want of jurisdiction.
The finding was overruled by the district court, and an adjudi-
cation of bankruptcy entered, from which this appeal is brought.
The record presents two questions, only, under the several
assignments of error: (1) Whether, upon the undisputed facts
shown, the case is witEm the bankruptcy jurisdiction of the
district court; and (2) whether-jmigdiction_appears over the
person of the alleged bankrupt.
The first issue cHallengesthe jurisdiction of the district court
over the estate of the bankrupt, the subject-matter of the pro-
ceeding, irrespective of the question of jurisdiction in personam.
The facts are undisputed that the bankrupt has neither resided
nor had her domicile within the district for any period during
the 6 months preceding the filing of the petition, and has re-
sided fiontinuouslv in the state of Missouri for the pfl^t, ^?l y^f^r^]
that she carried on business in Chicago, within the district
(conducted by one Charles Plotke), from April 30, 1897, up to
January 3, 1899 (the petition being filed May 3, 1899) ; and that
she executed a voluntary assignment for the benefit of creditors,
under the statute of Illinois, on January 3, 1899 (the assignee
taking possession forthwith, and subsequently disposing of the
assets and closing out the business under orders of the county
44 JURISDICTION
court). The question is thus narrowed to an interpretation of
the provisions of the statute. § 2, subd. 1, of the bank-
ruptcy act (30 Stat. 545) invests district courts with juris-
diction to ' ' adjudge persons bankrupt who have had their £rin;
cipal-pl^ce of business, resided or had their domicile within
their respective territorial jurisdictions for the preceding six
months, or the greater portion thereof, or who do not have
their principal place of business, reside or have their domicile
within the United States, but have property within their juris-
diction, or who have been adjudged bankrupts by courts of
competent jurisdiction without the United States and have prop-
erty within their jurisdiction. ' ' As both residence and domicile
of the bankrupt were beyond the territorial jurisdiction, the
adjudication of bankruptcy rests alone upon the provision re-
specting the ''principal place of business." The appellees con-
tend, in effect, (l).that the proof of a principal place of busi-
ness inthe district for two months, and of no place of business
for the remaining period of limitation, establishes a case within
the meaning of the words ''greater portion thereof," in the
section above quoted; and, if not so consirue(i,"~(2) that the
voluntary assignment was void under the law of the forum, and
business was carried on thereunder for the requisite period, and
was constructively the business of the bankrupt. We are of
opinion that neither of_these contentions is tenable. The first
calls for a departure from the plain meaning of the language
used in the statute to make it applicable to conditions which
may have been overlooked in framing the provision, but are
not within the terms which were adopted ; and however desirable
it may seem to have such conditions brought within its scope,
to carry out the general intent of the act, the correction can be
n;tadft byJegislatis^ amendment only, and noLhy-wfty-j^liudicial
eonjitruction. So far as applicable here, the provision confers
jurisdiction over bankrupts "who have had their principal place
of business" within the territorial jurisdiction "for the pre-
ceding six months, or the greater portion thereof." Whether
thus considered apart from the provision as to residence and
domicile, or as an entirety, the language is unambiguous, if not
aptly chosen. The expression "greater portion" of a month or
other stated period is frequently used as an approximate measure
of time, and its meaning is well understood as the major part
or more than half of the period named. No justification appears
for construing like terms in this provision otherwise than in
NATURAL PERSONS 45
the ordinary sense. With jurisdiction dependent upon the single
fact of having the principal place of business within the district,
the statute then imposes the further prerequisite that such
business shall have been there carried on for more than half
of the preceding six months. In otfeer* Words, the limitation is
made with reference alone to the duration of the business in
the district, and regardless of the fact that its location may be
changed short of that period, and thus be carried on in different
districts without exceeding the three months in either, or that it
may be discontinued entirely without reaching the time limited
in any one ; and the provisions in reference to domicile and resi-
dence are equally restricted, except for the distinction as to
residence, that it may be retained in one district after domicile
is changed to another. With this meaning clearly conveyed by
the language of the statute, the policy of so restricting jurisdic-
tion is not open to judicial inquiry. In support of the construc-
tion for which the appellees contend, two decisions are cited
wbprphvJJI nf t.bP hflnkruDt act of 1867 (§5014, Rev. St.)
is so construed, — one by Judge Blatchford (In re Foster, 3
Ben. 386, Fed. Cas. No. 4,962), and the other by Judge Lowell
(In re Goodfellow, 1 Low. 510, Fed. Cas. No. 5,536). However
instructive these cases may be in interpreting the present statute,
they are nbt applicable by way of precedent, because of the
clear diversity in the respective provisions, ^ 11 of the former
rupts to "the judge of the judicial district in which such
debtor has resided or carried on business for the six months
preceding the time of filing such petition, or for the longest
period dnring .such six months'': and the limitationthus stated
was held to mean "the longest space of time that the bankrupt
has resided or carried on business in any district during the
six months." In re Foster, supra. It may well be conceded
that the language of that provision was susceptible of no other
fair interpretation ; that ' ' the longest period ' * of business ' ' dur-
ing such six months" was clearly implied, and, as remarked
by Judge Blatchford, "not the period which, mathematically
considered, is the greatest part of the six months." But_J^'
subd. 1, of the act of 1898 states the jurisdictional requirements
in terms clearly distinguishable from those which were thus
construed, namely, that a principal place of business shall have
existed within the district ' ' for the preceding six months or the/
greater portion thereof," thereby establishing as the test
46
JURISDICTION
^
V-
continuance of the business in the district for the ** greater por-
tion" of the six months, and not "the longest period" of busi-
ness "in any district during the six months." This departure
from the provisions of the prior act is marked both in the
change of words and in their collocation, and is not a mere
substitution of synonymous words, as argued by counsel.
The further contention that the requisite period of carry-
ing on business appears in the conceded facts of the voluntary
assignment made January 3, 1899, and the transactions there-
under, is not well founded. The question discussed on the
argument, whether the bankrupt act made the assignment void
ah initio, or voidable only in the event of an adjudication of
bankruptcy, as affecting the subsequent possession, however im-
portant in one phase, is not material in the absence of a distinct
showing that the business was continued under the assignment
for more than one month. Where jurisdiction of the federal
courts is made dependent upon citizenship or other specific
fact, "the presumption m every stage oi the cause is that it is
'without their jurisdiction, unless the coijtrary RppPRra^from
the record.'' Bors v. i^reston. 111 U. S. 252, 255, 4 SupT Ct.
407, 28^ L. ed. 419; Railway Co. v. Swan, 111 U. S. 379, 383,
4 Sup. Ct. 510, 28 L. ed. 462. The essential fact must appear
affirmatively and distinctly, and "it is not sufficient that juris-
diction may be inferred argumentatively. " Wolfe v. Insur-
ance Co., 148 U. S. 389, 13 Sup. Ct. 602, 37 L. ed. 493 ; Parker
V. Ormsby, 141 U. S. 81, 83, 11 Sup. Ct. 912, 35 L. ed. 654.
^ In the case at bar the record fails to show that^ the business was
^carried on by the assignee for any jefinite period^ and the
proofls insuflScient to confer jurisdiction, within the rule stated,
even on the assumption that the transactions of the assignee
were, in legal effect, the carrying on of business by the assignor.
It is true that a sale of the assigned property (a stock of goods)
appears to have been made by the assignee as an entirety, thus
closing out the business; but the time is not stated, and it may
well be inferred from the testimony that such sale occurred
soon after the assignment was made. The mere fact that pro-
ceeds of such sale are retained in the hands of the assignee for
distribution is not carrying on business, in the sense of the
statute. The active business then ceased, and the liability to
account for the proceeds is no more operative to save the limi-
tation than would be the case if the business were closed out
directly by the bankrupt, either with or without subsequent
NATURAL PERSONS 47
payment of debts out of the proceeds. No evidence being pro^
duced to overcome the presumption of fact against jurisdiction,
the question of the legal status of the assignment does not
require consideration. It may be remarked, however, that the'
validity of the assignment is not questioned under the state
statute, and its status depends upon a construotion of the pro-
visions of the national bankruptcy act in that regard, and the
inquiry is not one which is governed by any rule of decision in
the state. In so far, therefore, as Harbaugh v. Costello, 184
111. 110, 56 N. E. 363, passes upon the effect of such act on
voluntary assignments made after its passage, the decision is
not necessarily controlling, as contended by counsel; but that
question, when presented, will call for independent judgment,
in the light of all the authorities. In Mayer v. Hellman, 91 U. S.
496, 500, 23 L. ed. 377, a different construction appears to have
been placed upon the bankrupt act of 1867 ; and in Simonson v,
Sinscheimer, 95 Fed. 948, 952, 37 C. C. A. 337, 342, that ruling
is cited as equally applicable under the present act. See, also,
Davis V. Bohle, 92 Fed. 325, 34 C. C. A. 372; In re Gutwillig,
92 Fed. 337, 34 C. C. A. 377; In re Gutwillig (D. C.) 90 Fed.
475, 478, cited with approval in West Co. v. Lea, 174 U. S.
590, 596, 19 Sup. Ct. 836, 43 L. ed. 1098.
We are of opinion, therefore, that the district court was with-
out jurisdiction of the cause alleged in the petition, and the
question whether the want of personal service was waived by
appearance does not call for solution. The order of the district
court is reversed, accordingly, with direction to dismiss the peti-
tion for want of jurisdiction. "
In re GARNEAU
127 Fed. 677, 62 C. C. A. 403
(Circuit Court of Appeals, Seventh Circuit. January 5, IQCiJ^^x^ <■ ^^
The bankrupt, a young man 26 years of age, was bom in the^"***,^
city, of St. Louis, and, with the exception of occasional absences,
lived there aU his life. Up to March, 1900, he resided with his
brother in the city of St. Louis, and was employed by him in a
stockyard in that city upon a salary of $50 a month. In March
or April, 1900, he removed his residence, as he claims, to the
city of East St. Louis, directly across the river from St. Louis,
retaining his employment in the business of his brother in the
^ JURISDICTION
city of St. Louis. As his sister states : "East St. Louis is not a
place any one is apt to go to unless for business. You don't go
there for pleasure. It is all stockyards." He rented by the
month a room in the house of one Broughan at $10 a month.
His effects which he moved into the house were contained in one
trunk. In August of that year he removed his trunk, keeping
in the room his toilet articles and his nightshirt. The trunk
was not returned to the room for over a year, and not until after
the proceeding by creditors hereinafter stated. He__thu8_rs-
moved, as he claims, to East St. Louis, for the purpose of gain-
ingaresidence to file an application innSankrujptcy in the
ISoiUhgrnlSStrigLQl Illinois, and to_secure his discharge, and
With the intention of going west immediately _thereafter. He
did not eat at his lodging, and the record does not show where
he was accustomed to take his meals, further than for a while
he obtained his breakfast at some restaurant in East St. Louis.
He occupied the room at night at first quite regularly, after-
wards not for several weeks at a time, and then for four or five
nights in a week; but he paid rent for the room up to the
present time. On July 13, 1900, he^Jiled his petition in bank-
ruptcy in the District Court for the Southern District of Illi-
nois, praying to be discharged of ^s_defets,^ and on that day
was adjudged a bankrupt, and the matter referred to a referee.
At the first meeting of creditors on the 14th of August, 1900,
three debts were proven, amounting to $14,700, and the referee
reports that there were no assets according to the schedules in
the bankrupt's petition, and that the three creditors proving
their debts were all the creditors scheduled. On November 21st,
upon the petition of the creditors, a citation was issued requir-
ing the bankrupt to appear for examination on December 4th,
which was had on that date; the facts concerning his alleged
change of residence then appearing and being first known to
the creditors. On that date, also, the bankrupt filed his peti-
tion for a discharge, and on December 22d, the creditors, who
were respectively residents of the states of Nevada and of
I Utah, filed their petitions moving the court to dismiss the pro-
ceeding for want of jurisdiction upon the grounds that the bank-
rupt did not have his domicile within the district for the greater
portion of six months before the filing of the petition, and did
not have a horui fide residence or domicile within the district
at any time; and subsequently, on February 15th, the three
creditors filed their separate specific objections to the discharge
NATURAL PERSONS 49
of the bankrupt. The two matters — the motion to dismiss the
proceeding and the objections to the discharge — ^were referred
to a referee, who returned the testimony taken, and recom-
mended that the petition in bankruptcj_bejdismissed for want
of jurisdiction. Exceptions were filed to the report, and the
court below on June 29, 1903, overruled the exceptions, sustained
the report, and dismissed the proceeding. The correctness of
that ruling is brought up for consideration by a direct appeal
and also by an original petition to review.
JENKINS, Circuit Judge (after stating the facts as above).
By the terms of the bankruptcy act (Act July 1, 1898, c. 541,
§2, 30 Stat. 545, 546 [U. S. Comp. St. 1901, p. 3421]), the
courts of bankruptcy are invested with jurisdiction to adjudge
persons bankrupt "who have had their principal place of busi-
ness, resided or had their domicile within their respective terri-
torial jurisdictions for the preceding six months or the greater
portion thereof. ' ' There is, of course, a legal distinction between,
"domicile" and "residence," although the terms are generally
used as synonymous, the distinction depending upon the con-
nection in which and the purpose for which the terms are used.
"Domicile" is the place where one has his true, fixed, perma-
nent home, and principal establishment, and to which, when-
ever he is absent, he has the intention of returning, and where
he exercises his political rights. 'I'here must exist in combina-
tion the fact of residence and the mmnus numendi. "Resi-
dence" indicates permanency of occupation as distinguished
from temporary occupation, but does not include so much as
"domicile," which requires an intention continued with resi-
dence. 2 Kent, 576. Residence has been defined to be a place
where a person 's habitation is fixed without any present inten-
tion of removing therefrom. It is lost by leaving tJtie place where
one has acquired a permanent home and removing to another
place animo non revertendi, and is gained by remaining in such
new place amimo mam&tidi. Tracy v. Tracy, 62 N. J. Eq. 807,
48 Atl. 533. In Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, the
word is thus defined:
' * It does not mean * * * one 's permanent place of abode
where he intends to live all his days, or for an indefinite or
unlimited time ; nor does it mean one 's residence for a temporary
purpose, with the intention of returning to his former residence
when that purpose shall have been accomplished, but means, as
H. & A. Bankruptcy— 4
50 JURISDICTION
iwe understand it, one's actual home, in the sense of having no
other home, whether he intends to reside there permanently or
for a definite or indefinite length of time."
The term is an elastic one, and difficult of precise definition.
The sense in which it should be used is controlled by reference
to the object. Its meaning is dependent upon the circumstances
then surrounding the person, upon the character of the work to
be performed, upon whether he has a family or a home in an-
other place, and largely upon his present intention. Bindge
V. Green, 52 Vt. 208.
There is some looseness and some conflict in the opinions in
the definition given to the term ''residence." We need not
stop to discuss these, because all agree that a residence, whether
it must be accompanied animo manendi or may exist with a
present intention at some time to remove therefrom, must be
bona fide, not pretentious. Morris v. Gilmer, 129 U. S. 329,
9 Sup. Ct. 293, 32 L. ed. 690. We are constrained to believe
that the purported change of residence of the bankrupt from
St. Louis to East St. Louis was pretentious only, not real ; and
was merely for the purpose of pretending to acquire a residence
solely for the purpose of filing his petition in bankruptcy in a
district in which he did not reside, "[indeed, the bankrupt
frankly avowed that to be his only purpose, and that he went
to East St. Louis with the then intention_ofleaving the place
[80 soon as he had accomplished his purpose. There was no
bona fide change of residence. There was no bona fide assump-
tion of residence in East St. Louis.7 He necessarily must spend
the hours of business in St. Louis. He left his home in St.
Louis, where he resided with relatives, and where he had passed
his life, crossed the river, and at much inconvenience to his
business assumed a home in a city of stockyards, to which, as
his sister remarked, one is not apt " to go to unless for business ;
don't go there for pleasure," carrying such of his effects as he
thought necessary in a single trunk, which he soon removed
from the lodging he had engaged, and which was not returned
for over a year, retaining at his lodging only articles of toilet
and a nightshirt. He was a sojourner merely, and not a resi-
dent, of East St. Louis. We look upon this transaction as an
imposition upon the jurisdiction of the court. The Congress
did not intend that one may select any court of bankruptcy
which he pleases in these broad United States, and be enabled,
through a pretentious removal to the district of that court, to
PARTNERSHIPS 51
obtain his discharge from his debts. To allow that to be done
would open the door to grave frauds upon creditors, which we
are not disposed to countenance. * * *
The petition for review is denied, and upon the appeal the
decree of the court below dismissing the proceeding is affirmed.^
2. OP PARTNERSHIPS Qf ^Cur^X '^C*^"^^
In re BLAIR et al. 4 ^^^ "f^^^i^??^ ..r^^ ^
99 Fed. 76 -V^-^^'^^,,^ y^"^^^
(District Court, S. D. New York. January 25, 1900) .X^J ^^"
In Bankruptcy. On motion to dismiss petition in involuntary*!-'^*^
bankruptcy against the firm of Blair, Stem, Passano & Rosston, i.,..<<r^
BROWN, District Judge. The petition in the above case was
filed on November 20, 1899, against the four defendants above
named. It states that they composed the co-partnership doing
business under the name and style of the Anglaise-Americaine
Soap Company ; that during the greater part of the six months
next preceding the defendants had their respective domiciles
in the county of New York within this district and also had
property therein; that the co-partnerahip being insolvent on
October 5, 1899, suffered a judgment to be recovered against it,
under which a portion of its property was sold by the sheriff
under execution, whereby the judgment creditors would obtain
a preference; and the petition asks that said "co-partnership
may be adjudged to be a bankrupt."
The subpoena was served personally on Stem in this district;
the other defendants were served by order in Baltimore and
Richmond. On January 9th the defendant Passano appeared
specially for the purpose of moving to dismiss the petition for
want of jurisdiction, and upon an affidavit obtained an order
to show cause why the petition should not be dismissed. XllS
alSdavit states in brief that none of the defendants had their
«^esidence_jor_.^mni£ile_ji^^ time within this district; that
Blair during all the period referred to hadhis~'3omicile and
resided at Richmond, Va,, and the other three defendants at
Baltimore, Md. ; that Passano had left the firm from three to
four months before the petition was filed, and Rosston a month
3—Cf. In re Williams, 120 Fed.
34; In re Oldstein, 182 Fed. 409.
52 JURISDICTION
later; and that at the time of the preference alleged, the firm
consisted of Blair and Stem only.
Upon the return of the order to show cause and on hearing,
a reference to a commissioner was ordered to take proof and
report the facts as to the place of business as well as the residence
or domicile of all the parties.
From the report of the commissioner, it appears that the
business of the Anglaise-Americaine Soap Company was started
ati^altiffiore, where it was continued until about August 11th
or 12th, when it was removed to this district; that on July
22, 1899, Passano withdrew from the firm, transferring his
interest to the other three partners, who by agreement assumed
all the co-partnership liabilities; that on August 11, 1899, Ross-
ton also retired from the firm, whereupon the business was
removed to this district by Blair and Stem, the remaining
partners, as above stated ; that Blair and Stem, from that time,
continued the business under the same name and under the
name and style of "Blair-Stem Company, Selling Agents for
Anglaise-Americaine Soap Company ' ' ; that they continued the
business in this district until on or about November 1, 1899, after
which date and until the petition was filed November 9th, they
were engaged in winding up the affairs of said company; and
that they had no other place of business subsequent to August
12, 1899; that Blair, between the 12th and 18th of August,
removed to New York from Baltimore, where he continued to
reside until the 1st day of November, when he went to Rich-
mond to reside; that Stem did not reside or have his domicile
here, at any time prior to November 7, 1899.
These findings are supported by the evidence. They show,
therefore, that the petition cannot be sustained upon its aver-
ment of domicile, within this district, since neither of the four
partners had his domicile or resided here long enough to sup-
port the jurisdiction of the court.
Further inquiry concerning the place of business of the sev-
eral partners was had in view of the possible allowance of an
amendment to the petition, getting up a place of business within
the district for the requisite period. .|^5c_of the act provides
that in cases of partnership "the court which has jurisdiction
of one of the partners may have jurisdiction of all"; and by
§ 2, subd. 1, the court is authorized to adjudge bankrupt persons
"who have had their principal place of business, resided, or
had their domicile within its jurisdiction" for the greater por-
I I
PARTNERSHIPS 53
tion of the six months preceding the petition. The abpve_Jacts
showjbhat two of the partners, Blair and Stem, had their onlx.
place of business within this district for a little over three
months prior to the petHion^ if thTperiodTrbm November 1st to
November 20th be deemed a period of doing business, during
which the firm of Blair and Stem was in liquidation, in charge
of Mr. Stem; otherwise not. Under the circumstances above
stated, I think the period from November 1st to November 20th
cannot be excluded from the period during which Stem at least
had his principal place of business in New York. The circum-
stances are altogether different from those in the case of In re
Little, 2 N. B. R. 294, Fed. Cas. No. 8,391.
It is urged that the business conducted by Blair and Stem
in New York, was not the original partnership business of the
four partners above named, but the business of a new firm;
and that the provision of § 5c should be held applicable only
to cases where the partner is transacting the same firm's busi-
ness within the particular jurisdiction, and not where he is
simply transacting an independent business of his own. But
in this case Stem and Blair were in fact liquidating the old
firm's business during this time. Nor do I perceive any sound
reason for limiting, as suggested, the ordinary meaning of the
language used in §§ 5c and 2, subd. 1. Whatever doubts may
have been raised under the act of 1867 (Cameron v. Canieo,
9 N. B. R. 527, 4 Fed. Cas. 1,128), the proceeding may certainly
now be commenced in any district in which either partner
resides; the present act leaves no doubt on this point (Lowell,
Bankr. 360; Loveland, Bankr. 191; In re Murray [D. C] 96
Fed. 600) ; and the same was held by Story, J., under the act of
1841. The jreaspns f or the broad option given by the present jict
were probably reasons of convenience, and to authorize the pro-
ceedings to be had in any district wherein a partner was ordi-
narily to be found, whether by residence, domicile, or place of
business.
If the petition were amended, therefore, by averring that
Stem's place of business was here during the requisite period,
the jurisdiction of the court should be sustained. The petition
must, however, further show whether any of the individual
partners are solvent. As it stands, it is ambiguous in this
regard. It avers that the "partnership is insolvent"; but other
statements seem to intimate that by that averment it is intended
only to state that the joint assets are not sufficient to pay the
54 JURISDICTION
joint obligations. No doubtja firm is sometimes said to be
insolvent when only a deficiency of joint asselB is' meant. But
as each partner is liable in solido for the debts of the company,
so that they are debts of each individual member as much and
as truly as they are debts of the firm, a partnership cannot
with strictness be said to be insolvent while any one of the
partners is able to pay all the firm's liabilities. Lowell, Bankr.
359 ; Hanson v. Paige, 3 Gray, 239, 242 ; In re Bennett, 2 Low.
400, 3 Fed. Cas. 209. By the express provision of § 5h, more-
over, the firm assets cannot be administered in bankruptcy if
one of the partners is not adjudged bankrupt, unless by his
consent. Bank v. Meyer (D. C.) 92 Fed. 896; In re Meyer (C.
C. A.) 98 Fed. 976. It is therefore required by rule 1 of this
court that the petition shall state whether any partner, not
joining in the petition, is solvent or insolvent. Form 2, more-
over, prescribed by the supreme court (18 Sup. Ct. xviii.),
requires for an adjudication of "the firm" as bankrupts, a
statement in the petition that "the partners owe debts which
they are unable to pay in full." This necessarily includes the
individual responsibility of each, as well as their joint responsi-
bility; and that form evidently contemplates that an adjudica-
tion of the firm imports an adjudication of all its members
as well. To avoid any ambiguity, and any delay or complica-
tion in the subsequent proceedings, the insolvency of each
member of the firm should be alleged in the petition if an
adjudication against the firm and an administration of the
firm assets in bankruptcy are sought, in order that issue on that
point, if disputed, may be at once taken and heard along with
any other issues, and the scope of the proceeding determined
without further delay.
The petition may be amended, if desired, within 10 days; if
not so amended it will be dismissed.
'^ \r^ 3. OP CORPORATIONS
In re MATHEWS CONSOLIDATED SLATE CO.
144 Fed. 724
(United States District Court, District of Massachusetts.
November 24, 1905)
An Jnvnlrrntagg petition wa^ filftd in the District Court for
the DJstneTof Massachusetts against the Mathews Consolidated
CORPORATIONS 55
Slate Co. (a corporation organized under the laws of New
Jersey) ; the company did not object to an adjudication, but
objections were filed by a creditor who had ohtairLedA4udgnient
in New York agamst the Company. One objection was based on
his contention that the District Court for the District of Massa-
chusetts was without jurisdiction because the alleged bankrupt
did not have its principal place of business, reside, or have its
domicile within that district. The issues were referred to a
referee, who found that the court had jurisdiction, and recom-
ifiended an adjudication.
DODGE, District Judge. * * * There is no dispute that
the bankrupt was a corporation ^organized under the laws, of
New Jersey, as found in the report. Its do^jgjle^theref ore was
not in Massachusetts. In this jurisdiction it was a foreign
corporation. Within the meaning of the acts giving jurisdiction
to federal courts of suits between citizens of different states,
such a corporation could have no residence in Massachusetts.
Shaw V. Quincy Mining Co., 145 U. S. 444, 12 Sup. Ct. 935,
36 L. ed. 768. In my opinion such a corporation cannot be said
to have "resided" here within the meaning of § 2 (1) of the
bankruptcy act. IJ_^nnot therefore be adjudged j, bankrupt^
here, unless, jt had its principal place of business in Massa-
chusetts for the six months preceding June 22, 1905j_.or_fQiLthe.
greater part of that period-
First. The referee has found it to be a fact that the bank-
rupt's pnncipal_^la^e_ofJbusmess^a^ its headquarters were at
Boston, within the District of Massachusetts, and the respondent
contendsthat the finding was not warrantedjby the evidence.
Whatever may be the correct description, for the purposes
of the question which is raised under § 4b of the bankruptcy
act, and which is considered below, of the business in which
the bankrupt was principally engaged, there is no dispute that
its business consisted in the operation of slate quarries and
slate mills and in selling the slate thus obtained or produced.
Upon the evidence which accompanies the report, I find the
facts below stated as follows:
(1) The quarries operated were situated, eitherjn VemnQpt
or New York, all near the line between those states, and all
within about 12 miles of Poultney, Vt. The principal slate mill
was at Middle Granville, N. Y. This produced structural slate.
U JURISDICTION
At several of the quarries were also miUs producing roofing
slate, as is hereinafter more fully explained.
(2) The company was organized in May, 1902. Its officers
were, and had been since its organization, a president, vice presi-
dent, treasurer, secretary, and general manager. From 1902
until the filing of the petition it maintained offices in the Sears
Building in Boston. These were at least its executive offices and
selling agency. In them the officers above mentioned, who all,
during the six months before the filing of the petition, resided in
Boston, were regularly to be found and all their official busi-
ness was there regularly carried on, except that the general
manager spent part of his time and performed part of his
fties in Poultney, as below stated. In the same offices the
•ectors, ajmajority of whom resided in Boston during the
ne Egrigd, held all jth,eir-meetiBgs_during_^at period. The
_ckbook_was^eptJthere. The minutes of the directors and the
corporation books of account were kept there. Its correspondence
was conducted from there. The great bulk of sales of the
product of the quarries and mills was negotiated there or from
there ; about 1 per cent, only of the total sales being made from
Poultney. All bills for produce sold were sent out from there,
being there made up from shipping slips forwarded there from
Poultney. The prices of goods sold were fixed there, and the
payments for goods sold received there. Onejcegular salesman
was employed, who was to be found there, except when on the
road, and who was never to be foiind^at the quarries or at
Poultney. When on the road his reports were all made to
the Boston office, and all orders from him were received there,
but only a small proportion of the sales was made by him.
From one to three clerks or stenographers were employed there
in the transaction of the company 's business.
I (3) The principal banking of the company was dqne in_
I Boston. All money received for goods sold was deposited either
in tES City Trust Company or the Webster & Atlas Bank, both
of Boston. These were the principal bank deposits kept by
the company. All notes, accounts, and bills payable were ren-
dered to the Boston office, after being approved when necessary
at other places, as below, and were paid, as a rule, by checks
drawn on the above bank deposits. Such checks were drawn
at the Boston office, and were there signed by the treasurer and
countersigned by the president. This did not apply to the pay
CORPORATIONS 57
roll cheeks, further spoken of below, which were signed by
the treasurer only,
(4) The company also maintained ofi&ces during the six
months prior to the filing~of the petition at Poultney. From
there the operations carried on at its quarries and mills were
directed, as below stated, subject to the supervision of the
Boston office. At each quarry the company had a superin-
tendent. Under each quarry superintendent there was a boss
over each gang of men employed, whether in the quarries or
mills. Weekly reports were sent from the quarries and mills
to the Poultney office, from which reports of product and
shipments were there made up and sent to the Boston office.
All shipments were made from the Poultney office, as required
to fill orders, which were ordinarily sent from the Boston office.
Stock sheets showing product on hand were kept at the Poult-
ney office. These were compared usually every month with stock
sheets kept at the Boston office. For about eight months pre-
ceding the filing of the petition, in addition to the general
manager above referred to, a quarry manager had been employed,
who lived at Poultney and had all the active and immediate
direction of all the quarries and mills, always, however, sub-
ject to the supervision and instructions of the general manager
above referred to, who ordered the increase or decrease of
laborers employed at the various quarries, or the making of
new openings, as occasion required. The general manager made
frequent visits to Poultney, at least as often as once in each
month. Prior to the employment of the quarry manager, the
then general manager had resided at Poultney, and there per-
formed the duties of the quarry manager, receiving his direc-
tions regarding them from the president, at Boston. Such
supplies in general as were required in operating the quarries
or mills were as a rule purchased by the quarry manager acting
from the Poultney office. These purchases were made in New
York and Vermont and to a small extent in Boston. Bills for
goods so purchased were approved by the quarry manager and
sent to Boston for payment.
(5) In banks at Poultney and Granville, N. Y., funds were
deposited by the company just sufficient to cover its pay roll
each month. The pay rolls were made up and approved by the
quarry manager at Poultney, and were then forwarded to the
Boston office, where the treasurer signed the necessary checks
and forwarded the required money to the Poultney and Gran-
58 JURISDICTION
ville banks above mentioned, to be used to cash the pay roll
checks. The general method was as above until about a year
before the filing of the petition, when it was changed so far as
the Poultney banks were concerned. Objection having been
made by them to paying the checks referred to because the
account maintained was so small, currency to the required
amount had been, during the year referred to, forwarded from
the Boston to the Poultney office and the Poultney pay roll
cheeks cashed at that office. The deposits in the Poultney and
Granville banks were chiefly, if not entirely, used for meeting
the pay roll checks as stated, and the average amount allowed
to remain on deposit there was at all times small in comparison
with that allowed to remain in the Boston institutions.
(6) The mill g,nd most of_thejC[uarries rsfeij'ed to were owned
by the Mathews Slate Company, a corporatign^organized under
Jihelaws of Maine. Only two of the quarries operated did not
belong to that company, both of them situated in New York.
One of them was owned and one leased by the bankrupt. The
properties of the Mathews Slate Company were subject to a
mortgage given by that company to the American Loan & Trust
Company of Boston, as trustee, to secure an issue of bonds
1 amounting to $500,000. The_bankrupt_owned all the stock of
the Mathews Slate Company, except five shares lield by^its
dJT'ectoT's In^OT^der^jo qualify theTn, and also owned $366^00"
of the bonds issued by it, as^aBove. All the properties of the
bankrupt, including said stock and bonds, were subject to a
mortgage given by it to the City Trust Company of Boston, as
trustee, to secure an issue of its own bonds, amounting to
$600,000. The coupons on these bonds, due semiannually, were
payable in Boston. The money to pay them was regularly
deposited as they became due with the City Trust Company, by
the treasurer of the bankrupt company, at Boston. Since the
organization of the bankrupt company in 1902, and the giving
of the mortgage by it as above, the Mathews Slate Company
had maintained its organization under the direction of the bank-
rupt company, but had done no other business and had ceased
altogether to operate the quarries or mills belonging to it;
such operation being from that time conducted wholly by the
bankrupt company.
(7) The product of the different quarries and mill was stored
at or near them until shipped by direction from the Poultney
office as above. None of it appears to have been stored in
CORPORATIONS 59
Massachusetts. The property of the company in Massachusetts
not already referred to consisted of the office furniture in the
Boston office only, and some samples of slate there kept. Just
what property was kept at the Poultney office does not appear.
(8) From 100 to 150 men were employed at the quarries
and mills referred to, not including the mill at Middle Granville,
where about 10 men were usually employed.
(9) By the bankrupt's certificate of incorporation, dated
May 1, 1902, it is declared that its principal office in the state
of New Jersey is in Jersey City in that state. It is also pro-
vided that the corporation is to have one or more offices. It^ad
^n office in Jersey City from the time of its incorporation, at
which office all stockholders' meetings were held. The stock-
book was kept at the Boston office as above found. No stock
transfer records appear to have been kept at the New Jersey
office. It was contended by the respondent, and apparently not
denied, that the New Jersey corporation laws required the keep-
ing of all the books at that office.
The above being all the facts which seem to me material upon
the question, as I find them established by the evidence, 1 agree
with the referee that they show the bankrupt's principal place
of businesg^ iQ .have_been at Boston and within this district.
The bankrupt had many places of business. Besides its New
Jersey office, its Boston office, and its Poultney office, each of the
quarries operated and the structural mill as well was a place
at which it regularly did business. It does not seem to me that
the determination of the question, which of these various places
of business was the principal one, can depend upon the amount
of property kept or the amount or value of product turned out
or the number of men employed at each of them. It might
appear that some particular quarry or the mill was principal in
this sense; yet to call that particular quarry or the mill the
bankrupt's principal place of business would not be in accord-
ance with what is usually understood by that expression. Cer-
tainly, any one who desired to have business dealings with the
corporation through its representatives would be more likely
to go to the Poultney or to the Boston office, even though fewer
employees and less property were to be found there, and no
production was actually done there. If he went to the Poultney
office he would do so because he would be more likely to find
there some one authorized to act for the corporation regarding
its quarrying and milling operations. These however, though
6^ JURISDICTION
immediately directed, from Poultney, were ultimately controlled
from Boston, and at Boston was also transacted a large part
of the company's business with which the Poultney office had
no concern, a part not less important in its relation to the
business of the company as a whole than the part which was
done at the quarries, the mills, or the Poultney office. The fact
that the supreme direction and control over all the company's
operations and dealings, and over its entire plant and prop-
erty, was exercised from the Boston office, and the fact that
in order to the exercise of such supreme direction and control
all its operations and dealings, whether relating to production,
or to sale, or to the company 's finances, if not done at the Boston
office, were reported to that office and there passed upon by the
appropriate officers, who were regularly there for the purpose
of exercising such supreme direction and control, in my opinion
makes the Boston office the headquarters of the company, and
prevents that office from being regarded as a "mere executive
office and selling agency ' ' according to the respondent 's conten-
tion. Tf \^ be said that the supreme authority lay with the
stoc^olders, a^ that_J|;hey^llim xmiy iff^^^jraey City, in the
business of the company, their authority could only be exer-
cised through the officers whom they elected. When elected,
those officers must have been understood to be regularly per-
forming their duties at Boston
The facts in this case diiTer materially from those in the case
relied on by the respondent, in Re Elmira Steel Company
(D. C.) 109^ Egd, 456. The headquarters of the bankrupt in
that case could not be said to have been in Philadelphia. On
the contrary, as is said in the opinion in Re Magid-Hope Silk
Mfg. Co. (D. C.) 110 Fed. 352, "Its office in Pennsylvania
seems to have been merely a branch office. ' ' The referee found
that the business done in that office was less the business of the
Elmira Steel Company than the business of its selling agents
(109 Fed. 468), and that everything done in Pennsylvania was
incidental to what was done at Elmira, N. Y. No similar
finding seems to be possible in this case. It may be added
that the Elmira Steel Company, organized under the laws of
New York, expressly located its principal business office at
Elmira by its certificate of incorporation. 109 Fed. 466. If a
manufacturing company, under the circumstances shown in that
case, does its manufacturing and selling in one state and its
banking in another, it may well be considered, as was there
WAGE-EARNERS 61
held (109 Fed. 471), that it is the principal place of its prin-
cipal business that must govern. I do not regard the fact that
the present bankrupt did the greater part of its banking in
Boston as of itself enough to make Boston the headquarters of
the company. The banking done was only one of the component
parts of the bankrupt's business. I^nsider the Boston office
c,
*v.
laye been the bankrupt 's_E>rinciBal place of business, because.
all the eomponentjparts of its^usiness were gojar done at or
.directed from that office, as to make it jroper to regard botliJthe
other offices, and each quarry, and the mill, as subordinate,
'■ptafies~of bnaJTiesiit * * * [The referee's] report is there-
fore confirmed and adjudication ordered.*
B, Who May Become Bankrupts
1. NATURAL PERSONS EXCEPTION (aS TO INVOLUNTARY BANK-
RUPTCY) IN THE CASES OF:
a. Wage-earners ^ *J4«.
FIRST NAT. BANK OF WILKES-BARRE v. BARNUJVf
160 Fed. 245 ^^*^ ^ "^ .
. 5^ . / ^*.^. ^
(District Court, Middle District of Pennsylvania. March 9, "~-—
1908)
ARCHBALD, District Judge. These are involuntary pro-
cgedings, and are resisted by the respondent on the grounds:
(Ij That he is a wage-earner; and J^2) that the petitioners are
not creditors. It appears, as to the first, that the respondent
is a music teacher, giving lessons on the piano, organ, violin,
and mandolin, at 50 cents an hour, earning from $35 to $40 a
month, or a little less than $500 a year, some pupils coming to
his house for instruction, and others being taught at their own
homes. This constitutes his livelihood, in addition to which,
however, he has a summer cottage at Harvey's Lake, which he
4 — The decision of the District Co., 163 Fed. 579. See also as to
Court was affirmed by the Circuit whether it is necessary that a for-
Court of Appeals for the First Cir- eign corporation obtain a certificate
cuit in 144 Fed. 737, 75 C. C. A. to do business in the state where the
603. The Supreme Court denied an bankruptcy proceeding is brought, /
application for a writ of certiorari Jn_re Duplex Badiator Co., 142 Fed, t/
in 50 L. ed. 1176, 26 Sup. Ct. 764. 906. — -
Ace. In re Penna. Consol. Coal
62 JURISDICTION
rents for $175 a season, and another property from which he
gets $150, besides which he has divided up certain land that he
owns, and is selling it off in lots. The question is whether under
these circumstances he is a wage-earner within the meaning of
the law, so as not to be subject to involuntary bankruptcy.
A wage-earner is defined by the bankruptcy act as one ^^ who
I works for wages, salary, or hire,^t a rate of compensation not
exeeedtegj^e thousand five hundred dollars per year. ' * By
this it is evidently intended to relieve from adverse proceed-
ings those who, not being engaged in business or trade, depend
for a living upon the result of individual labor or effort, with-
out the aid of property or capital. But not all of this class
are exempt, as is show^nby^the^limi^ of $1^500. And the work
done must be such as is compensated by wages, salary, or hire,
other earnings not being put in the same category. These
terms mean much the same thing, and are no doubt collectively
used in order to cover the different possible kinds of employ-
ment comprehended within the general idea. A^[ages, as dis-
.^^ tinguished from salary, are commonly understood to apply to
the compensation for manual labor, skilled or unskilled, paid
at stated times, and measured by the day^-,week^ month, or
.season. Commonwealth v. Butler, 99 Pa. 535 ; Lang v. Simmons,
64 Wis. 525, 25 N. W. 650; Campfield v. Lang (C. C.) 25 Fed.
128 ; Henry v. Fisher, 2 Pa. Dist. R. 7 ; Louisville, etc., R. R. v.
Barnes, 16 Ind. App. 312, 44 N. E. 1113; Fidelity Ins. Co. v.
Shenandoah Valley R. R., 86 Va. 1, 9 S. E. 759, 19 Am. St. Rep.
858; State v. Haun, 7 Kan. App. 509, 54 Pac. 130. And also
by the piece. Pennsylvania Coal Co. v. Costello, 33 Pa. 241 ;
Swift Mfg. Co. V. Henderson, 99 Ga. 136, 25 S. E. 27 ; Ford v.
St. Louis R. R., 54 Iowa, 728, 7 N. W. 126 ; Seider's Appeal, 46
Pa. 57 ; Adcock v. Smith, 97 Tenn. 373, 37 S. W. 91, 56 Am.
St. Rep. 810. But not bvJM ,iob. Heebner v. Chave, 5 Pa. 115 ;
Berkson v. Cox, 73 Miss. 3397^8 South. 934, 55 Am. St. Rep.
539 ; Morse v. Robertson, 9 Hawaii, 195 ; Henry v. Fisher, 2 Pa.
t^ Dist. R. 7. Nor including profits on the seirices^of others.
Smith V. Brooke, 49 Pa. 147 ; Sleeman v.^rrett, 2 H. & C. 934 ;
Riley v. Warden, 2 Exch. 59. Neither is it so broad a term as
* learnings, * * which comprehend the returns from skill and labor
in whatever way acquired. People v. Remington, 45 Hun
(N. Y.) 338; Matter of Stryker, 73 Hun, 327, 26 N. Y. Supp.
209; Id., 158 N. Y. 526, 53 N. E. 525, 70 Am. St. Rep. 489;
Jenks v. Dyer, 102 Mass. 236 ; Nuding v. Urich, 169 Pa. 289,
WAGE-EARNERS 63
32 Atl. 409 ; Goodhart v. Pennsylvania R. R., 177 Pa. 1, 35 Atl.
191, 55 Am. St. Rep. 705 ; Hoyt v. White, 46 N. H. 45. Indeed
the act itself in exempting wage-earners recognizes that there
are other kinds, ^alary, on the other hand, has reference to
a superior grade of services. Hartman v. Nitzel, 8 Pa. Super.
Ct. 22. And implies a position or office. Bell v. Indian Live
Stock Co. (Tex.) 11 S. W. 346. By contrast, therefore, "wages"
indicate inconsiderable pay for a lower and less responsible
character of employment. South Alabama R. R. v. Falkner,
49 Ala. 115 ; Gordon v. Jennings, 9 Q. B. Div. 45. Where salary
is suggestive of something higher, larger, and more permanent.
Meyers v. N. Y., 69 Hun, 29, 23 N. Y. Supp. 484; White v.
Koehler, 70 N. J. Law, 526, 57 Atl. 124 ; State v. Duncan, 1 Tenn.
Ch. App. 334 ; Palmer v. Marquette RoUing Mill, 32 Mich. 274.
The word "hire" is rather associated with the act of employ-
ment than the reward for services done; and in the latter con-
nection is more on the plane of wages than of salary, although
in a sense it comprehends both; and is also applied to engag-
ing the use of property. We hire a coachman, a gardener, or
a cook; or a carriage to take a ride. And may also be said
to hire a superintendent, a bookkeeper, or a clerk, although
it would seem more correct, in the latter instances, to say engage
or employ. In some communities, a farm hand is called aN
hireling, without intending any reflection, although in general!
speech the term is one of reproach. As further defining its}
use, a laborer, according to Sacred Writ, is said to be worthy
of his hire. And coming up from the people, as the word thus
does, itjs^ometimes applied, /oiit~of ptace^to the securing of /, ^
professional services, as where one is said to hire a lawyer,
aT^octor, or a person of J;hatj;lass.
The cases directly decided under the bankruptcy act confirm
these views. Thus, it is held that a person doing hauling with
his fpam by ^^"^ '^''7 — which affords a good example of what
may in strictness be termed a hiring — is a wage-earner. In re
Yoder (D. C.) 11 Am. Bankr. Rep. 445, 127 Fed. 894. Althoughl
it is said that, in allowing the priority given to wages by the I
act, the amount due for the use of the team must be distinguished I
from that for the services of the person himself. In re Winton
Lumber Co., 17 Am. Bankr. Rep. 117. So money due for piece
work, paid weekly, is held to be wages. In re Gurewitz, 10 Am.
Bankr. Rep. 350, 121 Fed. 982, 58 C. C. A. 320. And a book-
keeper, in the employ of others, receiving a salary of $65 or
7
64 JURISDICTION
$70 a month, is a wage-earner within the meaning of the
law. In re PilgerTDTcTrTAm. Bankr. Rep. 244, 118 Fed. 206.
And so, as we may assume — applying the same principle —
would be the chor^er of a church, paid a specified yearly sum
for his services. Catlin v. Ensign, 29 Pa. 264. Or a traveling,
' salesman receiving a percentage commission on the amount of
this sales. Hamberger v. Marcus, 157 Pa. 133, 27 Atl. 681,
37 Am. St. Rep. 719. But not a factor or broker, engaged in
the business of selling goods on commission. Id. Nor a mill-
owner, who saws lumber for others at so much a thousand.
Campfield v. Lang (C. C.) 25 Fed. 128. Nor one who builds
a house or other structure, by contract, even though he does
a part of the work himself. Berkson v. Cox, 73 Miss. 339, 18
South. 934, 55 Am. St. Rep. 539 ; Henry v. Fisher, 2 Pa. Dist.
R. 7 ; Morse v. Robertson, 9 Hawaii, 195. Nor one who tows a
canal boat. Ryan v. Hook, 34 Hun, 191. Or threshes out grain
by the job. Johnston v. Barrills, 27 Or. 251, 41 Pac. 656, 50
Am. St. Rep. 717. Nor are the fees of lawyers, physicians, and
the like to be classed as wages. Vane v. Newcombe, 132 U. S.
220, 10 Sup. Ct. 60, 33 L. ed. 310; People v. Myers (Sup.)
11 N. Y. Supp. 217. Norjthejiebts due to a blacksmith from^is
customers for his services. Tatura v. Zacliry, 86 Ga. 573,
12 S. E. 940. Nor is a school teacher a laborer or servant;
however, we may speak of one, at times, as being hired. School
District v. Gautier, 13 Okl. 194, 73 Pac. 954.
From these considerations, as it seems to me, but one con-
clusion can be drawn. A person, like the respoadent, giving
music lessons at so much an hour, is not a wage-earner within
the meaning of the act. Teaching is a pfoFession, denoting a
nicer relation and involving a finer character of work, and
entitled, like that of the lawyer, doctor, the engineer, the archi-
tect, or the minister, to Be regarded as upon a higher plane.
His work is mental, not physical. He labors with his head,
not his hands. And while that may not be distinctly conclusive,
it has its weight. He is the tutor, or instructor, of his pupil,
not his servant ; his, ofJJifitwo, being the master mind. This
is not to say that one who works for a salarjv. like the teachers
in our public schools, may not be wage-earners, within the mean-
ing of the bankruptcy law. The fact of being under a salary
makes a difference, and brings the case squarely within the act,
although it may be noticed in passing that, in the school laws
of the state, teachers are said to be appojnted, not employed or
FARMERS 65
hired. But the compensation received by the respondent, in
the present instance, is certainly not a salary. Neither is it
wages. And notwithstanding the misuse of the term, alluded
to above, neither can he be said to work for hir^. He is simply
paid a stipulated sum or stipend in return for the instruction
which he gives, which he holds himself out as competent to
impart, being engaged so to do by his pupils or their parents,
but not hired, any more than the lawyer, doctor, or others in
professional life. The returns from his teachings may be earuA
ings, which as we have seen is a comprehensive term, but not)
wage-earnings, and so not effective to exempt him from liability/
here. * * * [On the second ground of objection, that the
petitioners were not creditors, the petition was dismissed.] ^
h. Farmers -^o/ a j^^t^^
BANK OF DEARBORN et al. v. MATNEY C^^-f- ^"^^
132 Fed. 75 Xc.. d
(District Court, W. D. Missouri. April 16, 1904)
PHILIPS, District Judge. This is a petition in involuntary
bankruptcy. There is no question made, if the defendant is
subject to the operation of the bankrupt act (Act July 1, 1898,
c. 541, §1, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3419]), that
he had not committed acts of bankruptcy at the time of the
filing of the petition against him. The qji^tion of fact and
law raised by his answer is as to whether he was chiefly engaged
inf arming or the tillage of the sfiil. * * * The controlling
facts will appear in the following discussion :
It is not every person engaged in farming or the tillage of
the soil who is exempt from the operation of the bankrupt act,
but it is a person "engaged chiefly in farming or the tillage of
the soil." The courts are generally agreed that the term ' ^f ariji-
ing" is not synonymous with a tiller of the soil. To constitute
one a farmer it is not essential that he in person should till
the soil, or that his operations should be limited to agricultural
planting, sowing, and cultivation of the soil. Yet the context
indicates that the terms "farming" and "tilling of the soil"
5— cy. In re Yoder, 127 Fed.*^
894; In re Pilger, 118 Fed. 206 T*^
In re Hurley, 204 Fed. 126. V^
H. & A. Bankruptcy — -'5
66 JURISDICTION
are more or less closely allied. The word "farming" was doubt-
less employed in the act as a generic term, in a comprehensive
sense. The lawmakers, coming from the wide extent of the
Republic, with its diversified agricultural adaptability, are to
be presumed to have had in mind their knowledge of the methods
in different localities of conducting the business of farming. It
is therefore reasonable to concludejhat the termjwas^ot_limited
jnerely__tg tha-production of graJns^a^^IgJA'JSt^s ^Tid tVip- liTcp
^he farmer may cultivate all or a part of his lands. He may
be general or special. He may devote his cultivation to the
production of corn, or wheat, oats, or rye, or grasses, which-
ever, in his judgment, may be the more useful and profitable.
He may include also with these breeding, feeding, and rearing
of live stock, embracing cattle, horses, mules, sheep, and hogs,
for domestic use and for market. If he find it more profitable
to feed his agricultural products or his grasses to live stock
than to rely upon marketing the surplus, he may not be limited
to the quantity of live stock for such purposes to what he may
breed or rear on his farm. For this purpose he may rely entirely
upon the purchase of such live stock from his neighbors or on
the market, and utilize his farm products in feeding and fatten-
ing such "feeders" for market. Neither, in my opinion, should
the act be so construed as to restrict the farmer entirely, under
all circumstances and conditions, to the corn and hay and
grasses he may produce for rearing such feeders and prepar-
ing them for market. In other words, where he relies largely
upon his pasture lands for grazing his cattle, and his crops of
corn may not be sufficient to carry them through the particular
winter and the feeding season, he may supplement these by
purchasing from without sufficient corn, and the like, to meet
the requirement. But certainly there should be apparent such
relation between his method of farming and the buying and
feeding of cattle, hogs, and the like, for market, as to reasonably
indicate that his farming is not made principally subsidiary
to the business of buying and selling cattle. So that, if his
chief businessis that oQhus trading^ in cattle, using his lands
as a mere feeding station, relying upon the purchased feed from
the market for preparing them for sale much more than on his
agricultural products, he may cross the dividing line between
farmingijs. his chief business an3~'S^aHmgjrMcattl£^
8tjar'(^ of tivtelihta^. NblLia^^a"lait^lfe dm ^My be laid
;«
FARMERS 67
down by the courts indifferently applicable to all cases. Each
must depend more or less upon its own particular facts.
The case of In re Thompson (D. C.) 102 Fed. 287, principally
relied upon by the defendant, is in accord with the views enter- r
tained by this court of the limit of indulgence to be accorded i
to the farmer. It is observable that the learned judge made the
case turn upon the fact that, taking into consideration the quan-
tity of land in cultivation and its product, and the quantity of
stock raised and bought, there was not such disproportion be-
tween the defendant's farming and cattle trading operations
as to exclude him from the protection of the bankrupt act.
In iggj^fackgy (D- C}_11(VFVd_g55j the court has furnished
a most sensible and just rule for determining whether the person
be engaged chiefly in farming or other business run in connec-
tion therewith. The court said:
*'A person engaged chiefly in farming is one whose chief
occupation or business is farming. The chief occupation or
business of one, so far as worldly pursuits are concerned, is that
which is of principal concern to him, of some permanency
nature, andLonwhicli lie chiefly relies for his livelihood
tlvpjTTpgiip nf ^cgrirlDg azflalth^ ^^'Pajw^r^TjigjII That One may
principally devote his physical exertions or his time to a given
pursuit, while one of the factors entitled to consideration, is not
in all cases determinative of the question whether that pursuit
is his chief occupation or business. * * * jf g^di dealing
is of principal concern to him, and chiefly relied on by him for
his subsistence and financial advancement, and if he treats it
as of paramount importance to his welfare, he would not be
within the category of persons chiefly engaged in farming, even
were his farm to yield him some profit. * * * It is evi-
dent that it is impracticable, if not impossible, to define with
precision the facts which will in all cases determine whether
one is engaged chiefly in farming, and that each case must be
decided on its own circumstances. It may, however, legitimately
be stated, generally, that, if it appears in a given case that
one's occupation or business which is of principal concern to
him, not ephemeral, but of some degree of permanency, and on .
which he mainly relies for his livelihood and financial welfare,/
be other than farming, he is not 'a person engaged chiefly in
farming. ' Np one_abould be held esfiinpt^ from-the provisiops
of the bankrupt^acl^n_this_gro^Mtd..un]£^ it satisfactorily ap-
pears that he comes within the exception. ' ' " f '■ '** ' ^' ' • •
y in its £^
li_or_as ^**v-<
68 JURISDICTION
The same test is applied by the court in Wulbern et al. v.
Drake, 120 Fed. 495, 56 C. C. A. 645, as follows :
"It does not matter if the person may have other business
or other interests, if his principal occupation is that of an
agriculturalist — if that is the business to which he devotes more
largely his time and attention — which he relies upon as a source
of income for the support of himself and family, or for the
accumulation of wealth."
I In the case at bar it is true that the defendant grew to man-
/hood on his father's farm. After he attained his majority and
» began to work for himself, his father had a store on the home-
stead, and was postmaster there, and at one time ran a mill.
He gave his principal attention to his store and the post office.
The farm and homestead, consisting oi about_385 acres^_were
run__^^ejd^jemifijit3nd_his J)rother, accounting to the father
for one-half of the crops. The deJendant from tEeoutset mani-
'~Fested a passion for dealing in cattle, buying and selling, so
much so that it was conceded in argument that up to 1893 he
dealt in the buying and shipping of cattle to such an extent that
he became largely indebted for moneys borrowed to exploit this
business. Up to 1900 he and his brother continued to occupy
the farm as tenants under the father; so that during that
period his farming operations, as such, consisted in the use of
1921/^ acres of land of his father, on which he paid one-half
of the crop as rental.
He bought some more land in the early part of 1903, which
made the amount of land he owned and the leased land, in
1903, something over 600 acres. The result of his business opera-
tions was that in August, 1903, when the petition in bank-
ruptcy was filed against him, he was indebted to the extent of
over $52,000. It is conceded that over $39,000 of this indebted-
ness is referable to his dealings in live stock and the purchase
of com for their feeding. The land owned by him, 295 acres,
was valued at about $65 an acre, which would leave $5,000 or
$6,000 representing his land after taking out the purchase
money.
* * * It would appear that, while the defendant's total
crop and pasturage for 1901 amounted to about $1,770, an
examination of his checks at one bank shows that he spent
$8,906 that season for corn, while his mortgages indicate that he
must have expended about $6,700 for stock to feed.
FARMERS 69
There is some difficulty in arriving at the exact history of the
purchase of all cattle covered by his various mortgages. * • *
The evidence shows that under ordinary husbandry the annual
expense of conducting the defendant's farming operations would ^
not exceed $1,200. The evidence shows, from his accounts with '*»i^
the banks, that during his operations he did business with the
banks aggregating $94,622.19, made up as follows: Firstl**^
National, St. Joseph, $42,195.66; Bank of Dearborn, $44,426.53;
Tootle-Lemon Bank, $8,000. This extraordinary amount of
business done by such a farmer with the banks excites special |
wonder as to how such extensive financial operations can con-
sist with the idea that the defendant was chiefly engaged in
farming on such a quantity of land. They can be traced in this
evidence to no other source than his specialty in dealing in live
stock.
The defendant claims in extenuation of his large indebtedness
at the banks that the bulk of it was created prior to 1893, and
that he has been carrying much of it since, paying interest
thereon. He seems to have kept books prior to that time, but
none since. He furnishes in his evidence no data from which
the approximate amount of his indebtedness can be ascertained
in 1893. * » *
The state of the proofs is such, relying as it does largely upon
facts obtained from the defendant's testimony, when_Jiekept
nij^b^ks_silice_ 1893^^s_tojrend^ impossible to ascertain from
thejgyidfingp exactly tb<> times of his^urchases and the number
and ctgit of^we^stQck actually purcFiased T>y him cmTBeTSISfketr
The following summary is gathered from his own^ statement :
During the period preceding 1900 of, say five years, he pur-
chased 6 car loads of cattle for immediate shipment, the car
loads averaging from 16 to 18 head of cattle. He also during
that time purchased, fed, and sold sheep to the extent of a car
load a year. In 1900 he purchased 10 mules, colts, which were
at once sold ; price not stated. He also purchased between 50
and 60 calves, taken onto the farm. He shipped one car load
of cattle and hogs, three cars of hogs, three cars of cattle, two
other car loads of stock, not specially designated by the evi-
dence. In 1901 he bought 10 mule colts, $57 each, which he
kept from a year and a half to two years, and sold for from
$125 to $175 per head. He bought 55 or 57 calves at $14 per
head, which went onto the farm. He shipped one car load of
cattle and hogs, and one car load of cattle, hogs, and sheep.
70 JURISDICTION
In 1902 he bought 140 calves at an average price of $21.25,
out of which he at once sold 40 heifer calves; and shipped two
car loads of cattle and a car load of aheep, hogs, and cattle.
He also purchased 80 shoats (some of his hogs died of cholera) ;
3 mules of Guyton & Harrington, 3 from Jack Hahn, 1 from
Milt Gustin (one of which he traded to one Black for a pair,
paying $155 to boot), and 2 mules bought in Kansas City, for
the freight on which he drew his check on the Bank of Dear-
born, and which cost $400. The probable estimate of the cost
of the 10 mules would be in the neighborhood of $1,500. He
also had about 100 head of Hereford and Black yearling steers,
mortgaged October 31, 1902. These were probably calves in
1901, but he testifies that he only bought 55 or 57 calves that
year, leaving it inferable that he must have purchased some-
where about 40 or 43 not accounted for as yearlings in 1902;
and it is inferable that they were paid for with the proceeds
ofjthe mortgage of $2,860 which covered them.
] It does seem to me, in view of the conspicuous, controlling
I facts in this record, that the defendant's case is brought within
/ the rule given by the court, supra, that where "one's occupa-
I tion or business which is of principal concern to him, not
I ephemeral, but of some degree of permanency, and on which
he mainly relies for his livelihood and financial welfare, be other
\ than farming, he is not * a person engaged chiefly in farming. ' ' *
Beyond question the defendant's energies of body and mind
and hjs time were principally devoted_^othejmatterj)£_.buying
and ma^eting livp gtofj^^^^jjifTchief source of his livelihooiJl
^agjdto whictLJlfi-.£hiefly looked for financial success. When he
rented lands, it was solely to get more~pasture' for the stock
he was buying and preparing for market. His crops cultivated
bore comparatively little relation, in proportion, to the amount
he bought for his feeders. The great bulk of his indebtedness
was for moneys borrowed for his cattle speculation. I|hat_s[as
hia^pejynasgpt, specific bii^ness. '"Hisfarming was merely
auxiliary — ^the incident, and not the principal thing. Banks
and others loaning him money gave him credit on his cattle,
and took mortgages thereon. His preferred creditors, whose
chattel mortgages are involved in this controversy, were secured
on the live stock he purchased. To hold such a debtor, with
his lands all covered by mortgages, owing $40,000 growing out
of buying and feeding live stock, is chiefly engaged in farm-
ing, it does seem to me would be to yield to a sentiment, rather
WHAT TIME GOVERNS AS TO CLASSIFICATION 71
than the spirit of the bankrupt act, which is designed to secure 7
equality among creditors. Where such a debtor seeks protec-
tion under the exemption of the statute, he should present
tangible, reliable evidence to bring himself within the excep-
tion. This the defendant failed to do to the satisfaction of
the court.
It results that the petition to have the defendant adjudged
a bankrupt should be sustained.*
c. What time gcxuems as to classification, ^f .xx-vx^s"^ I
FLICKINGER v. FIRST NAT. BANK c^cf / J^^k.^..^
145 Fed. 162, 76 C. C. A. 132 /^rn.^ '^«^*-^^vwI;2
(Circuit Court of Appeals, Sixth Circuit. May 1, 1906) ^ 6<t-a.tfk.
SEVERENS, Circuit Judge. This cause comes here on an W^..,,,^^
appeal from an order of the district court adjudging Flickinger k _ ^
a bankrupt. * * *
Upon the merits, the first question arises upon the conten-
tion that Flickinger was exempt from bankruptcy proceedings
under § 4b of the act of July 1, 1898 (c. 541, 30 Stat.
547 [U. S. Comp. St. 1901, p. 3423]), because he was a person
chiefly engaged in farming. The evidence shows that for some
years prior to August, 1903, Flickinger resided at GaUon, Craw-
ford Co., Ohio, and was actively engaged in the business of
the Flickinger Wheel Company, a manufacturing corporation
employing a great number of men, and located at that place,
of which he was a stockholder, director, the president, and gen-
eral manager. Hehad ajsp owned and cultivated a farTn j^
Logan county, which with the implements and stock upon it
was sold by the assignee for $21,000, and which was managed
by"Eim7~or under his direction, and on which he had a house,
which was occupied by him and frequently by his family when
he visited it for the purpose of giving direction to the cultiva-
tion and management of the farm. He went there once or twice
6 — Cf. In re Taylor, Mattoon Ameriean Agricultural Chem. Co.
Nat, Bk. V. First Nat. Bk., 102 Fed. v. Brinkley, 194 Fed. 411. 114 C. C.
728, 42 C. C. A. 1; In re Hoy, 137 A. 373. As to a corporation engaged
Fed. 175; Eise v. Bordner, 140 Fed. in farming, see In re Sugar Co., 129
566; Gregg v. Mitchell, 166 Fed. Fed. 640; as to a partnership. H. ^yXX^
725, 92 C. C. A. 415; In re Dwyer, D. Still's Sons v. Bank, 209 Fed. "^"^uVi!^
184 Fed. 880, 107 C. C. A. 204; 749, 126 C. C. A. 473. ^ ^ ,
72 JURISDICTION
a week, and telephoned his orders when he was otherwise en-
gaged. He bought whatever was bought upon the farm, and
sold all its products. In August, 1903^thejwheel^eompany went
into the "Wheel Trust, * ' so c^ledj after, which he was jaot
actively "occupied in its affairs. In January, 1904, the wheel
company went into the hands of a receiver appointed by the
n court of common pleas of Crawford county. 'rOn_Ma3L_3,-A9111,
i'<-''^'\_-L he^iade a, general jjssi^ment^ fo^ The
>i4**^'**'*^ ' petition in bankruptcy was filed September 2, 1904. Down to
Cj t^e time when he made his assignment, he had made occasional
visits to his farm in Logan county, and gave direction regard-
ing its management, much as he had done while managing the
business of the Flickinger "Wheel Company. He says_that_he
had no other business than farming after his company went
into~tIie hands of the receiver, and that he had the sole and
exclusive management of the farm thereafter. His statement
. is not contradicted and is confirmed by other witnesses, and it
does not appear that he intended to engage in any other busi-
ness. It is difficult to seejhow, after he made a general assign-
jnent on May 3, 1904, which, of „cnurse,^ conveyed his farm, he
jeould properly be said to be chtefly engaged in farming. Four
/months passed before the petition in^ bankruptcy was filed. We
/think it could not be held that he was engaged in farming when
'the petition was filed. The farm was sold on July 17, 1904, by
the assignee, who at that time was in control of it. We think
the fair conclusion from the facts shown would be that prior to
the time when the business of the wheel company went into the
hands of the receiver (January, 1904), Flickinger was engaged
in two kinds of business — manufacturing and farming — of
which the former was the chief; that after that time he was
not engaged in that business, and that farming became his chief,
in fact his only, occupation,^ and, continued such until his a§-
Mgnment in May, 1904^
e decisive qifestion would therefore seem to be whether
r,.^ , R 4b refers to the time when an act of bankruptcy is com-
)iL^^ imitted for the purpose of determining the occupation, as some
9^^'^ /of the courts in bankruptcy have held, or to the time of filing
the creditors' petition, which seems to be the natural meaning
of the words employed. It was held In re Luckhardt (D. C.)
101 Fed. 807, and In re Maekey (D. C.) 110 Fed. 355, that the
time referred to by this exception in the act is the time when
the act was done which was the ground of the adjudication.
WHAT TIME GOVERNS AS TO CLASSIFICATION 73
This construction was adopted, because it was thought neces-
sary in order to defeat attempts which bankrupts might make
to escape the consequences of their acts by running under the
shelter of an excepted occupation. If the language used is fairly
susceptible of this interpretation, the argument from inconven-"
Tence would Justify the proposed construction. This question was
presented in the case of In re Pilger (D. C.) 118 Fed. 206,
before Judge Seaman, who expressed doubt about it, but passed
it by, holding that it was unnecessary to decide it in that case.
In the case entitled Ip re Matson (D. C0123 Fed. 743, Judge
Archbald, in deciding whetHer the respondent should be ad-
judged bankrupt, referred the question of occupation to the
time when he was passing upon it ; but we do not know whether
the question was debated before him or not. Judge Brown, in
construing the words in § 4b, which include certain cor-
porations and exclude others from the operation of the law,
said:
' ' These words must be interpreted in the sense in Vhich they
are commonly used and received, and not in any strained or
unnatural sense, for the purpose of including or of excluding
particular corporations. ' '
In re N. Y. & W. Water Co. (D. C.) 98 Fed. 711, 713.
Amajority of the court is inclined to think that the st^tntQ
should be regarded as having reference^q^the conditiong^fixiat-
ing at the time when the act of bankruptcvjs committed. Upon
this construction, tlie facts would require a finding that the
respondent was within the exception. —
There are no other questions which require consideration.
The order must be reversed, with costs to the appellant,^
TIFFANY v. LA PLUME CONDENSED MILK CO. ►
141 Fed. 444
(District Court, M. D. Pennsylvania. October 20, 1905)
ARCHBALD, District Judge. The controversy here is one
ofjurisdiction. The respondent, a New Jersey corporation,
7 — An application for a writ of In re Folkstad, 199 Fed. 363, and
certiorari was denied by the United
States Supreme Court in 203 U. S.
595, 51 L. ed. 332, 27 Sup. Ct. 783.
Ace. In re Leland, 185 Fed. 830;
see note in 11 Mich. Law Rev. 246.
But see in re Matson, 123 Fed
743
74 JURISDICTION
denies by its plea that it Jmg had its principal place of business
within the district for the greater portion of six.months pre-
ceding the institution of these proceedings, as averred in the
petition, and as is essential ; there being no claim of residence
or^ domicile. Bankr. Act July 171898, c. 541, §^2J1), 30 Stait.
545 [U. S. Comp. St. 1901, p. 3420] . The evidence shows that
while incOTporated under the laws of New Jersey — and, in or-
der to comply with them, having a nominal office ~at Camden in
that state — the company was engaged in the business of manu-
facturing and selling condensed milk at La Plume and at Brook-
lyn, Pa., in this district, from the early part of 1903 up to
October 6, 1904, when its plant at the latter place was destroyed
by fire; that at the other having been sold the previous Jan-
uary. It also had during the same period a central office at
ScrastfflBi^from which the management of the company was
directed; the whole of its corporate business having been con-
ducted in these three places. The fire, however, broke up what
was left eft its manufacturing business, which was not after-
wards resumed. But it still retained its central office at Scran-
ton, and from it, through its treasurer as its executive officer,
with the assistance of a regularly employed stenographer, pro-
ceeded to settle up its affairs. An adjustment of the insurance
was secured, amounting to some $14,000, a considerable por-
tion of which was not paid until the latter part of November;
the relics of the fire were disposed of; accounts aggregating
about $5,000 were collected in, the money received from these
several sources being deposited in a local bank; and sundry
bills which were due were compromised and paid. The man-
ager of the burned condensary was also retained until the mid-
dle of November, and a man put in charge of what was left of
the property for some two months after that. This_wasthe
situation on February ,2, 1905, when _thfi_ju:eseBt, ^etitjon-gag
filed; the debts~3ue to the petitioning creditors having been
incurred in the course of its condensing business,
r^ There can be no question upon this showing as to the prin-
cipal place of business of the company being within the district,
\ not only for the greater part, but the whole, of the six months
[necessary to give jurisdiction. In re Marine Machine Co., 1
Am. Bankr. Rep. 421, 91 Fed. 630; In re Brice, 2 Am. Bankr.
Rep. 197, 93 Fed. 942; In re Elmira Steel Co., 5 Am. Bankr.
Rep. 484; Dressel v. North State Lumber Co., 5 Am. Bankr.
Rep. 744, 107 Fed. 255; In re Mackey, 6 Am. Bankr. Rep. 577,
WHAT TIME GOVERNS AS TO CLASSIFICATION 75
110 Fed. 355; In re Magid-Hope Silk Co., 6 Am. Bankr. Rep.
610, 110 Fed. 352. The fact is that (not counting the nominal
oflSce at Camden, N. J.) not only the principal part, but sub-
stantially the whole, of its business w5s conducted here. It is
contended, however, that after October 6th, the datje^qf the fire, ^^
it was ePj?aged in nothing but liquidation, which is not the doing /'i^ -^^t/
of business within the meaning of the law, the business required
to be done, either by a corporation or an individual, in order
to give jurisdiction, being none other than that by which either
is made liable to bankruptcy, and that, the respondent here
having been out of such business for nearly four months of the
six next preceding the filing of the petition, the court has no
jurisdiction over it, and the proceedings cannot be maintained.
The question involved in this contention is not altogether a
new one, although the particular form which it assumes here
may be. "Fuit agree," as it is said in Heylor v. Hall, Palmer,
325 (1619-1629), "q si un exercise traffique, e donque devient
indebted, e apres desert son trade, e Hue in le pads sans a^cu
trade, mes sur son tre, e luy conceale de ses Creditors, uncore
est Bankrupt quia vive p son trade, qnt le Debt grow." (It
was agreed that if one engages in traffic and thereby becomes
indebted, and afterwards abandons his trade and lives in- the
country without any trade, but upon his gains, and conceals it
from his creditors, yet is he a bankrupt, because he lives by
means of the trade out of which the debt grew). In line with
this, in Meggott v. Mills, 12 Mod. 159, s. c. Ld. Raym. 286, a
person exercising the trade of a victualer, in which he was liable
to bankruptcy, contracted a ' debt, and subsequently quit the
trade and became an innkeeper, after which he committed an
act of bankruptcy, and it was held that, though a man quit his
trade, he may be bankrupt for the debts that he owed before.?
And in Ex parte Bamford, 15 Vesey, 449, Lord Eldon declared
tiaJL^.commission in bankruptcy could be sustained beyond
doubt by an~act of bankruptcy committed after retiring from
tradej^the debts~conTracted during trade remaining unpaid. To
the same effecTafe i)a:we v. Holsworth, Peake, 64, Doe ex dem.
v. Hayward, 2 Car. & Payne, 134, and Bailie v. Grant, 9 Bing.
121 ; it being stated in the latter case by Tindal, C. J., that the
point was settled. It seems to have been carried one step fur-
ther, or at least a new form given to it, in Ex parte Griffiths,
3 De G., M. & G. 174, where it was said by Knight Bruce, L. J. :
"A trader, who, after having become indebted, leaves off trade.
c^*
76 JURISDICTION
is not to be heard to say to his creditor that the trading has
been left off, if a question arises whether the debtor can or can-
not be, aa a trader, made bankrupt." And Lord Alverstone,
C. J., In re Worsley, 1 K. B. (1901) 309, similarly declares
that, so long as a debtor does not pay the debts which he con-
tracted while engaged in trade, he is to be regarded as still so
engaged. The doctrine of these cases was adopted and applied
in this country, in Everett v. Derby, 5 Law Rep. 225, Fed. Cas.
No. 4,576, a case arising under the bankruptcy act of 1841. It
was there objected that the respondent was not liable to bank-
ruptcy, not being at the time of the alleged acts, nor at the time
of the filing of the petition a merchant actually using the trade
of merchandise, nor yet a retailer, so as to bring him within the
law. But it was held by Judge Ware, on the authority of what
was said by Lord Eldon in Ex parte Bamford, supra, that the
proceedings should be sustained.
A case under the present act, more nearly approaching to the
I one in hand, is to be found,In_re_LufiMiardtj 4 Am. Bankr. Rep.
J 307, 101 Fed. 807. The bankrupt there, who was engaged in the
retail boot and shoe trade, abandoned it and went to farming;
and, a petition having been filed against him, it was claimed
that he was exempt. In holding him liable, however, it is said
by Hook, J. :
y^ "The exemption from involuntary proceedings in favor of
wage earners and persons engaged chiefly in farming or the
tillage of the soil is not intended as a means of escape for in-
solvents, whose property was acquired and whose debts were
incurred in other occupations recently engaged in. If the right
of the creditors to institute involuntary proceedings may be
thus defeated by the debtors within the period allowed for the
commencement of such proceedings, it could be defeated by a
V>^ change of occupation made coincidently with the commission
of an act of bankruptcy, and an insolvent debtor would thus be
permitted to dispose of a stock of merchandise or other prop-
erty, distribute the proceeds thereof in such manner as pleased
him, immediately become for the time being a tiller of the soil,
or a wage earner, * • * and so avoid the operation of the
I bankruptcy act. Such a result is not in accord with the purpose
1 nor within the spirit of the law. A petition in an involuntary
j proceeding must be filed within four months after the commis-
1 sion of the act of bankruptcy relied on, and, if an insolvent,
[who is engaged in an occupation which is within the purview
WHAT TIME GOVERNS AS TO CLASSIFICATION 77
of the law, has committed an act rendering him amenable to^
its provisions, and desires within such period to adopt one of/
the callings favored by the law and exempted from its operation |
in respect of involuntary proceedings, he should not be per- /
mitted to carry with him the property previously accumulated,
to the defrauding of pre-existing creditors. The excepted occu- .
pations are not designed as a refuge for insolyen£iiebtors. laden I
with property and fleeing from other callings. The right of/
the cre^JitorsTto proceed within the period limited after the com- 1
mission of an act of bankruptcy cannot be thus defeated by the i
debtor." J
Closely in point is In re White Mountain Paper Co., 11 Am.
Bankr. Rep. 491, 127 Fed. 180, where a corporation, organized K3
under the laws of New Jersey for the purpose of manufactur-
ing pulp, acquired land and erected a plant in New Hampshire
for the purpose of engaging in that business^ but became in-
volved before any direct manufacturing was done. In holding
it liable to proceedings in bankruptcy, notwithstanding the lat-
ter circumstance, it is said by Aldrich, J. :
"The question • * * does not depend upon * • •
whether the corporation was at the particular time of the peti-
tion actually engaged in * * * the process of manufactur-
ing. My impression would be that the language 'engaged prin-
cipally in manufacturing * * * pursuits' was used for the
purpose of describing the kind of a corporation which may be
put into bankruptcy, and that it was not intended that the
operation of the bankrupt law upon a corporation of a kind
within the meaning of the statute should depend upon the ques- C«.-^-^-u.
tion whether it was actually engaged in manufacturing_at.ihe<;»,^^^^^^^
particular time when the petitiog is filed. ' ' '^^ ±jii
This case was affirmed on appeal (11 Am. Bankr. Rep. 633, ;
127 Fed. 643, 62 C. C. A. 369) upon the somewhat narrower
ground that, in the opinion of the court, manufacturing, under
the evidence, had in fact begun, although only in its earlier
stages — a view which, while it may not adopt, does not detract
from, that expressed by the lower court. Finally, In re Moench
Co., 12 Am. Bankr. Rep. 240, 130 Fed. 685, 66 C. C. A. 37,
where the corporation at the time of filing the petition was in
the hands of receivers appointed by a state court, it was con-
tended, similarly to what it is here, that the company, having
ceased to do business when the receivers were appointed, was
not within the provisions of the act. But it was said by La-
78 JURISDICTION
combe, J., speaking for the Court of Appeals of the Second
Circuit :
"No case is cited in support of this proposition, and, in the
absence of authority, we shall be unwilling to hold that a cor-
poration could thus easily avoid the operation of the bank-
ruptcy act by making a general assignment, or by securing the
appointment of receivers, or by ceasing to do any business, be-
ifore its creditors filed a petition against it."
While neither of the authorities so cited may be in exact cor-
respondence with the case in hand, the principle to be deduced
from them, applicable thereto, is clear. The liability of a per-
son, whether natural or artificial, to bankruptcy is to be judged
by the character of the pursuit in which such person was en-
gaged at the time the debts due the petitioning creditors were
incurred, with respect to which it may be conceded that, as to
a corporation, its actual business is to be considered, and not
that which it might possibly have undertaken by virtue of au-
thorized but unexercised powers. In re New York & W. Water
Co., 3 Am. Bankr. Rep. 508, 98 Fed. 711 ; In re Tontine Surety
iCo., 8 Am. Bankr. Rep. 421, 116 Fed. 401. As to such debts,
an individual does not lose his previous character by ceasing to
carry on the business in which they were contracted and turn-
ing to another, in which he is not liable to bankruptcy, and
neitheg^dogs a corporation,^by stoppin^Jbusiness altogether and
1 goingJntpJdjQiidation^^ voluntary or involuntary. In either case,
Va& to debts previously contracted, the business character of such
erson, in the contemplation of the law, remains the same.
Whereyerj^ thereforej^jhe principj,! glace of^ business_of .such,
fterson l^a^ been ^tablished |or the greater part of six montM
precedin^LJhe filing of the petition, and without regard to^^
budness_ihgrecarrie4__o^ as to debts previously contracted,
roceedings may be maintained.
This is not to deny the force of those eases which hold that,
where a person ceases to belong to one of the excepted classes,
he becomes liable according to the class in which he is found at
the time proceedings are instituted. In re Matsnn^ 10 Am.
BMlOL-Rep. 473, 123 Fed. 743; Hoffschlaeger v. Young Nap,
12 Am. Bankr. Rep. 521. It is simply that a different prin-
ciple applies. Nor does it seem to make any difference that the
debts due the petitioning creditors were incurred before the
change (Butler v. Easto, Doug. 295), provided only the act of
bankruptcy has been committed since. Bailie v. Grant, 9 Bing.
INFANTS /^Cf^*^//t^ /3/
121. As declared in the latter case, *'a debt contracted before
trade, but remaining unpaid at and after the time the debtor
enters into trade, " is "a subsisting debt for every purpose, and
subject to every consequence which belongs to a debt originally
contracted during trade." But without enlarging upon this,
which is somewhat obiter, whatever be the rule where a change
is made from an exempt to a nonexempt class, there can be no
question as to what is the rule here.
The exceptions to the report of the referee are overruled, the
issue raised by the plea is found in favor of the petitioners, and
the respondent is directed to answer over within 10 days.^
2. PERSONS OP ABNORMAL LEGAL STATUS
In re WALRATH ^<^*
■mT.
175 Fed. 243 7^^^ ^^^^^
(District Court, N. D. New York. January 4, 1910) .u_^^^ . J
RAY, District Judge. The above-named bankrupt is an ii^-
fant np(^er the age of 21 vearSj and it is alleged that for such V''g**</
reasonthis^ court has nQ_iurisdictiQn-4o-^aat-a.-iii§charge in y ^f^
this^roceeding. Henry L. Walrath filed his voluntary petition l7
in bankruptcy on or about May 26, 1909. An adjudication was '^'*^^'^
made, and the matter referred to C. L. Stone, Esq., one of the /
referees in bankruptcy. The first meeting of creditors was held 'fO '^'^
July 19, 1909, and Frank E. Parsnow, a creditor, appeared and nf- a<
filed his claim in the sum of $939.40, and same was duly proved -L
and allowed. A. H. Sheldon was appointed trustee of the estate C/caX*^'^
of said bankrupt, and Parsnow participated in such appoint- j« JL
ment. The trustee duly qualified and acted. Parsnow de-
manded an examination of such bankrupt, and such examina- f\^
tion was had. It appears there were no assets^ No other cred-
itor proved a claim. September 15, 1909, the bankrupt filed
his petition in due form, asking a discharge under the bank-
[ruptcy law. The referee has filed his certificate of conformity
and recommends a discharge. On the return of the order to
show cause on such petition for a discharge, said Frank E.
8 — Ace. In re Burgin, 173 Fed.
726; In re Wakefield, 182 Fed. 247;
>B58Tiote in 23 Harv. Law Ebv. 393a
do JURISDICTION
/ Parsnow, who had proved such claim, filed specifications of ob-
/ jection to the discharge of the bankrupt on the ground that, he
being an infant, the court has no jurisdiction to grant such
/ order.
The claim of Parsnow proved and allowed, and which gives
him standing in court, is the amount of a judgment in his favor
against Walrath_iiLJ^a;Ctix)n_jPor^egljgei^ from which no
appeal has been taken. The said objecting creditor has not at
any stage moved to open the adjudication or dismiss the peti-
/ tion instituting the bankruptcy proceedings. Infants are liable
j ^gr^ome debts, and they and their property may_be bound in
I judgment therefor. This claim of Parsnow is one of that^lass.
It has been so adjudicated by a court of competent jurisdiction.
Walrath, the bankrupt, owes the debt. He owed the debt when
the proceeding in bankruptcy was instituted. The law has so
adjudged. The bankruptcy act, "An act to establish a uniform
system of bankruptcy throughout the United States," approved
July 1, 1898 (Act July 1, 1898, c. 541, 30 Stat. 545 [U. S.
Comp. St. 1901, p. 3418]), as amended February 5, 1903 (32
Stat. 797, c. 487), and June 15, 1906 (34 Stat. 267, c. 3333),
provides.- in ll__that_l:_jdebt' j^halLgnclude. aiiy_ debt, de-
mand—ojL^iil^improvable iu bankruptcy," and in §2 that
the courts of bankruptcy shall have power to ' ' adjudge persons
bankrupt who," etc., and in §4 that "any person who
owes debts, except a corporation, shall be entitled to the benefits
of this act as a voluntary bankrupt," and in §63__that
/"debts of the bankrupt may be proved and allowed against his
/estate which are (1) a fixed liability as evidenced by a judg-
j ment or an instrument in writing, absolutely owing at the time
I of the filing of the petition against him," etc.
This was a provable debt, and was proved by this objecting
creditor, and duly allowed. The act nowhere excepts infants
from its provisions or benefits. The language is as broad as it
could have been made in general terms to include infants, and
there is nothing elsewhere in the act indicating that they are
not included in the language quoted. There is no ground of
public policy for excluding them, or so construing the act as to
exclude them, where they owe debts. This court therefore holds
that Henry L. "Walrath was, although an infant, entitled to the
benefits of the act, and that he was properly adjudicated a
bankrupt. The proceedings had are neither void nor voidable.
INFANTS 81
In re Carl S. Brice, 2 Am. Bankr. Rep. 197, 93 Fed. 942 ; Collier
on Bankruptcy (7th ed.) 96, 97, where it is said:
"An infant, either petitioning or petitioned against, must ap-
pear tohave capacity to owe. It is yet a mooted question, how-
ever, whetEerHan infant wEo has either held himself out and
traded as an adult, or who alleges only debts for necessaries,
cannot be adjudged bankrupt on his own petition. The better
opinion seems to be that he can."
This infant in respect to this debt was under no disability.
He owed the debt^ and his property was liable for its payment.
Suppose he had owed ten debts of the same class and grade,
with only property sufficient to pay 50 cents on the dollar; is
there any good reason why he should not have been adjudged
a bankrupt, and his property applied in payment of all pro rata?
Or, should the first one to obtain judgment and execution be
allowed to sweep the deck^ in the very face of the act and its
declared iiilPp0S6'^ Under the act of 1841 (Act Aug. 19, 1841,
c. 9, 5 Stat. 440), where, as here, infants were not exempted
from its operation, it was held they were entitled to its benefits.
In re Book, 3 McLean, 317, Fed, Cas. No. 1,637. It is unquesH
tionably true that an infant cannot be adjudicated a bankrupt, i
unless it appears that he "owes" debts. The word "owe" I
means something: That he is now_legally liable for its pay- /
ijignt, and that Jt may be enforced. ThisnSemg so, TieTs~5i- /o'^y^
titled to his discharge in this proceeding instituted for thatjv^ u
purpose; no other ground of objection appearing. "Any per- p^^"**
SQn who owes debtg'/ is entitled to the benefits of the act, and it
cannot be successfully contended that an infant is not a person.
But the validity of these proceedings cannot be challenged
here collaterally. The petitioner has been adjudicated, and
jurisdiction established. That judgment stands unimpeached.
This is an independent proceeding. In re Clisdell (D. C.) 4
Am. Bankr. Rep. 95, 101 Fe4_246i_IilJCfi^Mason, 3 Am. Bankr.
Rep. 599, 99 Fed. 256. f§^ 14 and 29] state the objections
which may be interposed 'and litigated here. J[urisdiction and . / ,
the validity of the prior proceedings are not included. The
confusion in the cases has arisen over the attempt to show that
an infant who actually "owes" a debt for which he and his
property are liable, and which may be enforced against both,
is not entitled to the benefits of the act, for the reason that
infants who have made contracts not binding, and which may
not ever become binding, which the infant may ratify on he-,
H. & A. Bankruptcy — 6
82 JURISDICTION
coming of age and then owe the debt incurred by such ratifica-
tion, but which they do not owe or cannot owe during infancy,
are not entitled to the benefits of the act; in other words, that
infants who do "owe" debts are' not entitled to the benefits of
the act, for the reason infants who do not owe debts are not.
Infants with no liabilities except of the latter description
are not entitled to the benefits of the acf, for the reason they
do not ^'owe" de^tSj not for the reason they are infants. An
adult is not entitled to the benefits of the act unless he owes
debts. The disability of the infant goes to his power to incur
a debt, so that he cannot be said to owe it, not to his power to
pay or avoid a debt he actually owes, or take the benefit of a
law which releases him, or which may release him, from one he
actually ' ' owes. ' ' The law does not say ' * any adult person who
owes debts, except a corporation, shall be entitled to the benefits
of this act as a voluntary bankrupt," but "any person;" and
until it^an be demonstrated that an infant who owes a debt is
not a "person," such infant is within the Taw^andre^Sitied to
its benefits^ Such infant is clearly included in the term "any
person who owes debts," etc. It would have been just as easy
for Congress to have said "Adult persons who owe debts," or
"Any adult person who owes debts," and thus have excluded
infants who owe debts, as to have used the language it did. It
was not the purpose of Congress to secure an equal distribution
of the property of all insolvent adult persons amongst their
t creditors, respectively, and_givejthem^J;he benefits of the_act,
/and leave the property of infants within the grasp of the first
(creditor obtaining judgment, to the exclusion of all others, and
leave such infant liable for its unpaid debts or for the remain-
der of its unpaid debts. There is no reason why infants who
owe debts which may be enforced against them and their prop-
erty should not have the benefit of the act, and I can see no
legal obstacle to their having it.
By the adjudication it was settled that Walrath, the peti-^
tioner, owed debts, and in that adjudication this objecting cred-
itor acquiesced. He made himself a party to the proceedings
in bankruptcy, when he appeared therein, and proved his claim,
and examined the bankrupt, and took part in the appointment
of the trustee of his estate. He comes here in this proceeding,
alleging that he is a creditor of this infant, and, in legal effect,
asserts that the petitioner owes to him an established and en-
forceable debt. On his own showing this infant is within and
MARRIED WOMEN 83
entitled to the benefits of the law. He sets up no objection
specified as a ground for refusing a discharge in §§14
and 29 of the act, ^nd as the adjudication stands unreversed it
must be assumed to be valid. As was said by Coxe, Circuit
Judge, In re Clisdell, supra:
"The petition for a discharge rests upon the fundamentalN
proposition that the petitioner has been adjudicated a bank-/
rupt. ' '
This court holds that the validity of that adjudication, not
appealed from, reversed, or set aside, cannot be questioned, on
application for a discharge, except by showing it was made by
a court having no jurisdiction to pronounce it.
Motion granted, and there will be a discharge according to
the prayer of the petition.^
b. Married Women V^'***<£ i.
CO. e^ al.^ T^
MAC DONALD v. TEFFT-WELLER
--H... "C
128 Fed. 381, 63 C. C. A. 123 ^^ ,^ yc/^/
(Circuit Court of Appeals, Fifth Circuit. March C 1904) ~"^ --^
Tjivn1iipt.^Ty_prnp.^<lmgs^vn bankruptcy were begun in the
District Court by the filing of a petition alleging, inter alia,
that ''Ruth E. MacDonald is a married woman * * * and
has for several years * » * been engaged in the business
of buying, selling, and trading in dry goods * * * and has
Qpnducted said business in her own name j * * * that the
said business, and said goods, wares, and merchandise, store,
and office fixtures and furniture and store accounts 2j:q her
separate personal property, and that the amounts due by said
Ruth E. MacDonald in the conduct of said business to peti-
tioners, hereinafter referred to, were incurred by her for the
purchase price of the personal property, to wit, stock of goods
in the store and business of said Ruth E. MacDonald, and went
to the increase of her separate personal property, and that she
therefore charged her separate property with the payment of
the same;" that the petitioners have provable claims against the
alleged bankrupt ^or~specified" amounts^ and that the alleged
9 — Ace. In re Brice, 93 Fed. 942. are partners, see In re Dunnigan,
But see In re Eidemiller, 105 Fed. 95 Fed. 428, In re Duguid, 100 Fed.
595; In re Soltykoff. [1891] 1 Q. B. 274 and Jennings v. Stannus & Son,
413. Ab to firms in which infants 191 Fed. 347, 112 C. C. A. 191.
84 JURISDICTION
bankrupt had, within four months, made a conveyance which
was a preference of one of her creditors.
Mrs. MacDonald appeared by counsel, and filed demurrer to
the foregoing petition on the following grounds: * • *
"(5) That a married woman residing in Florida cannot be
adjudged a bankrupt; (6) that there is no personal liability for
her obligations resting upon a married woman residing and
doing business within the state of Florida, which obligations
would be enforceable against her, and that a married woman
cannot be adjudicated a bankrupt; (7) that in this court a mar-
ried woman not a .free^jlealer cannot be adjudicated a bank-
rupt." """^ ^
The court below overruled the demurrer, and this court is
asked to revise the proceedings on the grounds stated in the
demurrer.
PARDEE, Circuit Judge (after stating the facts * * *).
The question presented is whether, under the facts alleged in
the petition in this case, a married woman in the state of Florida,
having separate statutory property, and engaging in trade,
buying, and selling on her own account, but not a free dealer^
can be adjudicated a bankrupt under the bankrupt law of 1898.
Under §§1505-1509, Rev. St. Fla. 1892, a married woman
may have her disabilities removed, and she may have a license
as a free dealer authorized to contract, sue, and be sued, and in
all respects to bind herself as if she were unmarried. See Mar-
tinez V. Ward, 19 Fla. 175.
By article XI of the Constiti^tion of the state ofJElprida of
1885 it is provided :
" § 1. All property, real and personal, of a wife owned by
her before marriage, or lawfully acquired afterwards by gift,
devise, bequest, descent, or purchase, shall be her separate prop-
erty, and the same shall not be liable for the debts of her hus-
band without her consent given by some instrument in writing,
executed according to the law respecting conveyances by mar-
ried women.
" § 2. A married woman 's separate real or personal property
may be charged in equity and sold, or the uses, rents and profits
thereof sequestrated for the purchase money thereof; or for
money or thing due upon any agreement made by her in writ-
ing for the benefit of her separate property ; or for the price of
any property purchased by her, or for labor and material used
MARRIED WOMEN 85
with her knowledge or assent in the construction of buildings,
or repairs, or improvements upon her property, or for agricul-
tural or other labor bestowed thereon, with her knowledge and
consent.
" § 3. The Legislature shall enact such laws as shall be neces-
sary to carry into effect this article,"
It does not appear that there has been any legislation under
§ 3 of said article, but "it is well settled, ' ' says the Florida
Supreme Court in First National Bank of Pensacola v. Hirsch-
kowitz, 35 South. 22:
"In an unbroken line of decisions, beginning with Lewis v.
Yale, 4 Fla. 418, down to the present time, this court has held
that 'a feme covert is not competent to enter into contracts so
as to give a personal remedy against her. ' As was said in Doll-
ner v. Snow, 16 Fla. 86 : * At common law the promissory note
of a married woman is void. The Constitution and statute of
this state make no change in this respect. Neither at law nor
in equity can she bind herself so as to authorize a personal judg-
ment against her. ' Under the rule laid down in these decisions,
appellants could not have proceeded at law against the said
married woman, Dora Hirschkowitz, and hence could not have
reduced their claims to judgment; also see Crawford v. Feder,
34 Fla. 397, 16 South. 287."
In the headnotes to this report, which in Florida are pre-
pared by the judges. No. 1 reads as follows:
"At common law the promissory note of a married woman
is void. The Constitution and statutes of this state make no
change in this respect, unless said married woman shall have
been made a free dealer. Neither at law nor in equity can she
bind herself so as to authorize a personal judgment against
her."
The court further says:
"It is also the settled law of this state that 'where a married^
woman carries on business in her own name, having property J
employed in such business, and purchases goods upon her sole /
credit for the purpose of such business, her separate property I
may be subjected in equity to the payment of claims for money i
due for such purchases.' Blumer v. PoUak, 18 Fla. 707. Also^
see Staley v. Hamilton, 19 Fla. 275 ; Garvin v. Watkins, 29 Fla.
151, 10 South. 818; Halle v. Einstein, 34 Fla. 589, 16 South.
554. In Crawford v. Gamble, 22 Fla. 487, it was held that
'merchandise purchased by a married woman who is conduct-
66 /JURISDICTION
ing a mercantile business in her own name is her separate stat-
utory property.* "
From these references to the law in_ Florida it appears that
a,, TTijgTried woman having separate statutory property, although
not a free dealer, ca£_lawfuU:£: carry on business, buy and sell
upon her sole credit, and thus contract obligations binding upon
her property in all respects as if she were a feme sole, except
that she cannot be held personally liable at law; the creditors'
legal remedy upon her contracts being in equity, under which
all her separate property may be taken. That is to say, that
such married woman may contract a debt which, she morally
owes — owes in equity and good conscience, lawfully owes — but
which she cannot be personally adjudged to pay.
Is Jibe lmited_objigajign^ thT3AJ:esulting_a_ " debt, * ' within the
meaning of the word as used in_j_4 of the bankrupt law of 1898 ?
Clause"^' a^^^^TX^aikr. Law, July 1, 1898, c. 541, 30 Stat. 547
[U. S. Comp. St. 1901, p. 3423], provides that "any person who
owes debts, except a corporation, shall be entitled to the benefits
of this act as a voluntary bankrupt." Clause "b" provides
that *'any natural person, except a wage earner, or a person
engaged chiefly in farming or the tillage of the soil, any unin-
corporated company, and any corporation engaged principally
in manufacturing, trading, printing, publishing, mining, or mer-
cantile pursuits, owing debts to the amount of one thousand
dollars or over, may be adjudged an involuntary bankrupt upon
default, or an impartial trial, and shall be subject to the pro-
visions and entitled to the benefits of this act. ' ' Blackstone de-
fines a "debt" as foUows: "A sum of money due by certain
and express agreement, as by bond for a determinate sum, a bill
or note, a special bargain, or a rent reserved on a lease, where
the amount is fixed and specific, and does not depend upon any
subsequent valuation to settle it." 3 Bl. Com. 154. Again:
"Any contract, in short, whereby a determinate sura of money
becomes due to any person and is not paid, but remains in action
merely, is a contract of debt." 2 Bl. Com. 464. "The word
'debt' is of large import, including not only debts of record or
judgments and debts by specialty, but also obligations arising
under simple contract to a very wide extent, and in its popular
sense includes all that is due to a man under any form of obli-
gation or promise." Gray v. Bennett, 3 Mete. (Mass.) 522,
|526; Shane v. Francis, 30 Ind. 93. "A 'debt' signifies what-
l ever one owes. There is always some obligation that it shall be
MAERIED WOMEN 87
paid, but the manner in which, or the condition upon which, it
is to be paid, or the means of recovering payment, do not enter
into the definition." Rodman v. Munson, 13 Barb. 197. "A
debt is a sum of money due by contract, express or implied."
Perry v. Washburn, 20 Cal. 350. § 1 of the bankrupt law of
July 1, 1898, c. 541, which gives the meaning of words and
phrases used in the act, provides in paragraph 11 (30 Stat. 544
[U. S. Comp. St. 1901, p. 3419]), *' 'debt' shall include any
debt, demand or claim provable in bankruptcy," and § 63 (30
Stat. 562 [U. S. Comp. St. 1901, p. 3447]), relating to debts
which may be proved, provides as follows: "Debts of the
bankrupt may be proved and allowed against his estate which
Qj,Q * * * (4) founded upon an open account or upon a
contract express or implied."
These broad definitions of "debt" from the text-books, ad-
judicated cases, and the bankrupt law all clearly include the
obligation lawfully contracted by a married woman, not a free
dealer, in the state of Florida, dealing with her separate estate.
We are referred to no adjudicated cases on the question as
to whether a married woman can be adjudicated a bankrupt
under the present law — all the cases cited are under other and
former laws.
The English_cases_cited, and much relied on by counsel for
petitioner (Ex parte Jones, In re Grissel, 12 Chan. Div. 484,
and In re Gardiner, Ex parte Coulson, 20 Q. B. Div. 249), lose
much of their force here, because the married women's property
act, 45 & 46 Vict., provides: "Every married woman carrying
on a trade separately from her husband shall, in respect of her
separate property, be subject to the bankruptcy laws in the
same way as if she were a feme sole. ' ' And § 152 of the bank-
ruptcy act provides: "Nothing in this act shall affect the pro-
visions of the married women's property act 1882."
In re Kinkead, 3 Biss. 405, Fed. Cas. No. 7,824, a case
decided under the law of 1867, wherein it was held that a mar-
ried woman residing in Illinois could be adjudicated a bank-
rupt, seems to have turned upon the laws of Illinois with regard
to the rights of married women. In the note by the learned
reporter in that case many of the current decisions in this conn-
try and in England are reviewed, and the reporter sums up as
follows :
?i;rr* Impossible as it may be to reconcile the decisions on the
general question of the rights and liabilities of married women,
88 JUEISDICTION
the duty of the federal courts in administering the bankrupt
act would seem to be simply to determine the status of a mar-
ried woman under the existing laws of the state where the juris-
prudence is to be exercised, and administer the act upon the
jbasis of the principles thus discovered. Thfi_Jormdatira_of
bankrjajioy-p^ceedings is indel?j£diies§ ; but the bankrupL,act
does not make any new standard of liability^— it^simBly operates
upon those already existing. The application of the act to mar-
ried women depends, clearly, not upon their rights, but their
liabilities, and those liabilities are determined by the law of the
forum where the jurisdiction is invoked."
From what has been said, it follows that we do not agree with
the learned counsel, whose able oral argument and exhaustive
brief have received our close attention, that the test is whether
the contracts of an alleged bankrupt can be enforced by judg-
C ment in personam, but rather is whether the said contracts con-
\stitute an existing indebtedness.
The object of the bankrupt law is twofold — the benefit of the
creditors and the relief of the bankrupt. Mr. Justice Story de-
scribes a bankrupt law as "a law for the benefit and relief of
creditors and their debtors in cases in which the latter are un-
able or unwilling to pay their debts." 2 Story, Const. § 1113,
note 2. Mr. Stephen speaks of it as "a system of law of a pe-
culiar and anomalous character, intended to afford to the cred-
itors of persons engaged in trade a greater security for the
collection of their debts than they enjoyed at common law un-
der the ordinary remedy by action." 2 Steph. Cora. 189. It
cannot be necessary that both objects shall be attainable in or-
der to warrant proceedings in bankruptcy. In many, perhaps
a majority, of cases, the relief to the bankrupt is the only ques-
tion, for there are no assets to distribute, and in many other
cases the benefit and relief of creditors is the only object. A
bankrupt may through fraud have lost his right to a discharge.
An insolvent corporation whose property, including all fran-
chises, has been distributed to creditors in involuntary proceed-
ings in bankruptcy, takes little, if anything, by a discharge,
r^ut this can be said for the petitioner that, if she is dis-
charged in bankruptcy, and thereafter she is sued at law or in
/equity, she can plead the discharge in bankruptcy as well as
coverture, and with regard to after-acquired separate property
she will be relieved from all her present obligations. The legal
as well as the general trend of the day is towards emancipating
LUNATICS 89
f a\
isi- 1
women, married or single, from all legal and other disabilities
not bearing on the other sex, and particularly in all directions
wherein she is thought to be handicapped in earning a living,
taking care of her property, or carrying on business. And if
married woman is encouraged and permitted to carry on busi
ness, buy and sell — in short, be a trader, as she is in Florida —
why, when she is unfortunate in business and burdened with
debts, shall she not, like the married man, be entitled to claim
and have her debts wiped from the slate under the more or less
wise provisions of the bankrupt law?
On the whole matter, we conclude that neither the terms nor j
the policy of the bankrupt law of 1898, nor any outside public /
policy, preclude, because of coverture, a woman owning debts]
exigible against her property from being adjudicated a bank-/
rupt ; and it follows that the question stated at the beginning {
of this opinion must be answered in the affirmative, and thatj
this petition for revision be denied. '^
And it is so ordered, i**
In re FUNK ^^l^i ^..^i^c. ^oT^
101 Fed. 244 cf ^-^^ ^u^d^^^ ,
(District Court, N. D.^Jowa. April 26, 1900) y ^ _^^
SHIRAS, District Judge. From the papers submitted to the^ X«u^
court it appears that on the 4th_day of October ^1899, Jacob iT
A. Funk, then residing in Livingston county, 111., wasduly ad-
judged to be insane by the county court of the named county,
and F, L, Rieke was appointed the guardian of his person and
estate, and qualified as such guardian ; and on the 12th day of
March, 1900, a duly-certified copy of the record of such pro-
ceedings was filed in the office of the clerk of the district court
in Wright county, Iowa ; and thereupon, by order of that court,
the said Rieke was appointed guardian of the property of said
Funk in the state of Iowa, — it appearing that he then had af
stock of goods in Wright county in charge of an agent or clerk. I
(tt further appears that on the 13th day of April, 1900, a peti-
tion on behalf of certain creditors was filed in this court, aver-
10 — See also In re Johnsoa, 149
Fed. 864.
90 JURISDICTION
ring that Jacob A. Funk was insolvent, and had committed cer-
tain acts of bankruptcy mJi£_months_Qf_Maiy2hL_and_Jl^
ij.900. by transferring property to secure debts due to certain
named creditors. To this petition an answer has been filed by
the guardian of the alleged bankrupt, in which is set forth the
adjudication of the court in Illinois, declaring Funk to be in-
sane, and the appointment of the guardian in Illinois, and also
in Iowa, and then, by proper averment, the answer presents
the^uestion whether Funk can be adjudged_a_bankrupt for
acts done by him afterjhe^^gatgjof^e adji^dication of insanity,
and the appointment of a guardian for his person and property.
By § 8 of the bankrupt act, it is declared that "the death or
insanity of a bankrupt shall not abate the proceedings, but the
same shall be conducted and concluded in the same manner, so
far as possible, as though he had not died or become insane."
In this section provision is made for cases wherein the proceed-
ings in bankruptcy are commenced during the lifetime of the
party, or at a time preceding his becoming insane, and, in effect,
the meaning of the section is that^ ia-oases wherein the juris-
diction of the court in bankruptcy has rightfully attached, the
proceedings shall not be abated by the subsequent death or
insanity of the bankrupt. In cases wherein the party, although
giving evidence of insanity, has not been adjudged insane, but
remains in possession and control of his property, and his cred-
itors seek his adjudication as a bankrupt, it might be held that
the bankruptcy court could rightfully exercise jurisdiction, and
could hold the party responsible for his acts done before the
fact of his insanity had been ascertained and established; but,
however this may be, it cannot be so held in cases like that now
/^before the court, wherein it appears that, prior to the filing of
the petition in bankruptcy on behalf of creditors, the party pro-
ceeded against had been adjudged to be insane by a competent
, court, and a guardian had been put in possession of his prop-
erty. By § 3227 of the Code of Iowa, it is provided that, if the
estate of an insane person "is insolvent, or will probably be
insolvent, the same shall be settled by the guardian in like man-
ner and like proceedings may be had, as are required by law for
the settlement of the insolvent estate of a deceased person."
Under the provisions of this section, it becomes the duty of the
guardian appointed by the district court of Wright county to
settle up the estate placed in his hands under the direction of
the court appointing him, and it will be the duty of that court
LUNATICS dl
to determine the question of the validity of the liens or convey-
ances executed since the date of the adjudication of the insanity
of the alleged bankrupt, and to make due and proper distribu-
tion of the assets belonging to the estate now in its charge. It
certainly cannot be held that the present bankrupt act confers
upon tnfe courts of bankruptcy the right to settle the estates of
insolvent decedents unless jurisdiction in the court of bank-
ru^^Kiy had alUichecL during the lifetime of the bankrupt, and/
tke same rule must hold good in cases wherein, before the peti-l (
tion has been filed in the bankrupt court, the debtor has been
adjudged to be insane, and his property has been taken charge
of by a state court of competent jurisdiction. ^
It is further contended by the guardian in this case that the
acts of bankruptcy charged in the petition were committed after
Funk had been adjudged to be insane, and that he cannot be
held responsible therefor in such sense that these acts can be
held to be acts of bankruptcy; and in support of this conten-
tion the ruling of Judge Dillon in the case of In re Marvin, 1^ ^ty
Dill. 178, Fed. Cas. No. 9,178, is cited, wherein it was said that
"the court is of opinion that a person who is so unsound in . 4j4^
mind as to be wholly incapable of managing his affairs cannot i ^,
in that condition commit an act for which he can be forced into \ /; .
bankruptcy by his creditors, against the objection of his guar- ''^^'-*^
dian ; ' ' and it would seem clear that a person who, by reason i
of insanity, is wholly incapable of managing his business affairs, 1
cannot be held to have intended to violate the provisions of the 1
bankrupt act by entering into transactions which, by reason of I
his mental disability, would not be binding upon him under the.^
rules of the common law. Under the admitted facts in this
case, this court, as a court of bankruptcy, should not entertain
jurisdiction of the petition filed by the creditors, and the same
will therefore be dismissed, at the costs of petitioners.
X61 Fed. ^^^..w^^ir^ix;
(District Court, D. New Jersey. April 10, 1908)^ ^^ ^^^
LANNING, District Judge. Three ctadii^is of WilliamR. "^ ^
Ward have ^Igd their petition to have him adjudged_an_mv^-''**''^
untary bankrupt. The only act of bankruptcy charged is that : . C*-€<s«-^
"William R. Ward is insolvent, and that within four months )^**-«-***
a^
ct.
92 JURISDICTION
preceding the date of this petition the said William R. Ward
committed an^jjt of bankru^cy. in that he did heretofore, while
insolvent, and on the 27th day of November, 1907, and the 5th
day of December, 1907, convey to one Benjamin Treacy, of the
city of Jersey City, county of Hudson, and state of New Jersey,
11 distinct and separate parcels of land, with the buildings
thereon, situated in the cities of Newark and East Orange,
county of Essex, and state of New Jersey, including the place
of residence of said William R. Ward, with intent to hinder,
delay, and defraud the creditors of said William R. Ward, in-
eluding your petitioners."
An answer was promptly filed by Ward's guardian ad litem,
appointed on ex parte proofs of his insanity, setting up, as de-
fenses: (1) That Ward, at the time of committing the alleged
act of bankruptcy mentioned in the petition, was so unsound
of mind as to be wholly incapable of managing his affairs or of
committing the act of bankruptcy charged; (2) that he did not
commit the act of bankruptcy charged; and (3) that he is not
insolvent. Later, another answer was filed, under an order of
leave granted by the court, by Anna Day Ward and Henry L.
Poinier, as guardians of the person and estate of Ward, setting
up that on December 28, 1907, which was 10_days.,a|ter the pe-
tiiiaELjn_bankrupte3^_was_fi]Mi^ a writ de
lunatico inquirendo were instituted against Ward in the Court
of Chancery of New Jersey, which resulted in a decree of that
court, dated March 2, 1908, confirming the proceedings and the
finding of the jury "that the said William R. Ward of East
Orange, N. J., was, at the time of taking that inquisition a
lunatic of unsound mind and did not enjoy lucid intervals, so
that he was not sufficient or capable of the government of him-
self, his lands, tenements, goods, and chattels, and that he had
been in the same state of lunacy and unsoundness of mind from
at least the 1st day of May, 1904," and that on March 28, 1908,
the orphans' court of Essex county duly appointed Anna Day
Ward and Henry L. Poinier as guardians of Ward 's person and
estate. In this answer there are also set up the same defenses
made by the answer of the guardian ad litem. In each of the
answers there is a demand that the issues be tried by a jury.
The motions are to strike out the defense of insanity, to limit
the issues to be tried by the jury to the second and third
defenses, and, if these motions be denied, for an order for the
examination of Ward by the petitioning creditors and their ex-
LUNATICS 93
perts before trial. The first of these motions is based on the^
theory that the insanity of an alleged bankrupt is not a good
defense, where no adjudication of lunacy has been made prior
to the filing of the petition in bankruptcy. ^^
The federal Constitution confers upon Congress the power
to establish "uniform laws on the subject of bankruptcies,
throughout the United States." The extent to which Congress
has exercised that power determines the scope of the power of
the federal courts in bankruptcy cases. § 8 of the bankruptcy
act (Act July 1, 1898, c. 541, 30 Stat. 549 [U. S. Comp. St.
1901, p. 3425]) is as follows:
"The death or insanity of a bankrupt shall not abate the
proceedings, but the same shall be conducted and concluded
in the same manner, so far as possible, as though he had not
died or become insane ; provided that in case of death the widow
and children shall be entitled to all rights of dower and allow-
ance fixed by the laws of the state of the bankrupt's residence."
This section clearly provides that, if the jurisdiction of the
bankruptcy court in a given case has once rightfully attached,
it cannot be defeated by the subsequent death of the alleged
bankrupt, or if he subsequently become insane. Whether juris-
diction exists to administer the estate of an insolvent debtor in
bankruptcy, where the alleged bankrupt has been adjudged,
after the petition in bankruptcy has been filed, to have been,
from a time antedating the alleged act of bankruptcy, a lunatic
wholly incapable of managing himself or his estate, must be
determined by comparing other provisions of the bankruptcy
act with § 8. The creditors in the present case contend that
jurisdiction attaches in the present case because § 4b (30 Stat.
547) declares that "any natural person, except a wage-earner,
or a person engaged chiefly in farming or the tillage of the
soil," may be adjudged an involuntary bankrupt. But no
natural person can be so adjudged, in an involuntary proceed-
ing, unless he committed one of the acts of bankruptcy described
in § 3a (30 Stat. 546) within four months next before the filing
of the petition in bankruptcy. The first subdivision of that
section declares • that any person shall be held to have com-
mitted an act of bankruptcy if he has "conveyed, transferred!
concealed, or removed, or permitted to be concealed or removed!
any part of his property, with intent to hinder, delay or deA
fraud his creditors, or any of them." That is the act of bank-
ruptcy charged against Ward. But if he has been a lunatic and
M JURISDICTION
so unsound of mind as to have been wholly incapable of manag-
ing himself or his estate ever since May 1, 1904, he could not
have conveyed his lands in November and December, 1907,
"with intent to hinder, delay and defraud his creditors." "An
intent to hinder or delay creditors," says Judge Bradford, in
the Wilmington Hosiery Company's Case (D. C.) 120 Fed.
185, "involves a purpose wrongfully and unjustifiably to pre*
vent, obstruct, embarrass, or postpone them (creditors) in the
collection or enforcement of their claims." Without under-
taking to determine the exact boundaries of the jurisdiction of
our bankruptcy courts in cases against lunatic bankrupts, it
is sufficient to say that, in the present case, the defense of in-
sanity cannot be stricken out of the answer.
r But is the adjudication in the Court of Chancery of New
/ Jersey conclusive on this-eourt in this proceeding? It would
C^ot be so in an action at law against the alleged bankrupt.
In such a case, "when an inquisition is admitted in evidence,
the party against whom it is used may introduce proof that
the alleged lunatic was of sound mind at any period of the time
covered by the inquisition." Den v, Clark, 10 N. J. Law, 217,
18 Am. Dec. 417. The same rule applies in equity. Hunt
v. Hunt, 13 N. J. Eq. 161; Yauger v. Skinner, 14 N. J. Eq.
389; Hill's Ex'rs v. Day, 34 N. J. Eq. 150; 16 Am. & Eng.
Ency. Law, 606. I think it is equally applicable to a bank-
ruptcy case where the adjudication of lunacy is made upon
proceedings instituted after the petition in bankruptcy has been
filed. The Funk Case (D. C.) 101 Fed. 244, is distinguishable
from this because there the adjudication- of lunacy was made,
and the property of the lunatic put into possession of his guar-
dian, before the petition in bankruptcy was filed. In the Kehler
Case (D. C.) 153 Fed. 235, where a petition in involuntary
proceedings was filed before the alleged bankrupt had been
adjudged a lunatic, Judge Hazel denied the motion to dismiss
the petition because the jurisdiction of the bankruptcy court
attached before the alleged bankrupt was adjudged insane,
and because of the presumption of the alleged bankrupt's sanity
at the time the acts of bankruptcy were committed. It is not
necessary to decide, in the present case, what may be the effect
of an adjudication of lunacy and the appointment of a guardian
or committee for the lunatic under a writ de lunatico inquirendo
before a petition in bankruptcy is filed against the lunatic. It
may be that in such a case the bankruptcy court acquires no
LUNATICS 95
jurisdiction; but, where a person is adjudged a lunatic under
proceedings instituted after a petition in bankruptcy has been
filed against him, the jurisdiction of the bankruptcy court to
try the issues involved in the bankruptcy proceedings seems
to me clear. In such a case, its jurisdiction attaches upon the
filing of the petition in bankruptcy. If the alleged bankrupt
was, at the time of committing the alleged act of bankruptcy
charged in the petition filed against him, so insane that he
did not understand the nature of the act, its commission should
be denied on the ground that, being insane, he could not com-
mit it. On the trial of such an issue, the adjudication of luna^
may, perhaps, be offered as prima facie evidence of insanity,
provided it shows lunacy at the time of the commission of the
alleged act of bankruptcy.
It will be observed, from what has been said, that, in such a^
case as the present one, the defense that the alleged bankrupt 1
did not commit the act of bankruptcy charged against him in-
volves the question of his insanity. As already stated, the only^
act of bankruptcy charged here is that the alleged bankrupt
conveyed certain of his lands with intent to hinder, delay, or
defraud his creditors. Evil intent is an essential element of the
act charged. § 19 (30 Stat. 551) of the bankruptcy act gives
to an alleged bankrupt the right to a trial by jury of the ques-
tion of his insolvency and of the question concerning his com-
mission of an act of bankruptcy, provided a written applica-
tion for such trial be made. Such application has been made.
The question of the alleged bankrupt's insanity will there- \ p.
foire^be §ubmjtte3]to^ as^an essential part uf thedefgse / •r^^'^^L-
tfciatjie didJiQL_cpmjnitJJie_actj)fJ>^^TOp^^ *- *^^^^
Although it is alleged in the petition that Ward was insolvent
at the time of executing the deeds of conveyance, that allegation
is immaterial, and will not be involved in the issues to be tried.
There is also an allegation that he was insolvent at the time of
the filing of the petition. That is a proper, if not a necessary,
allegation, since § 3c of the bankruptcy act makes the defense
of solvency at the time of filing the petition, in a case like
the present one, a good defense. West Company v. Lea, 174
U. S. 590, 19 Sup. Ct. 836, 43 L. ed. 1098 ; Elliott v. Toeppner,
187 U. S. 330, 23 Sup. Ct. 133, 47 L. ed. 200.
The issues to be triedJaLihejuryare therefore : (1) Whether
the alleged bankrupt was insolvent at the time of the filing of
the petition in bankruptcy, and (2) whether the particular act
96 JURISDICTION
of bankruptcy charged was committed by him. The latter issue
will necessarily involve the question of his insanity. * • •
[The third motion of petitioners was also denied.]
The motions of the petitioning creditors will all be denied.
They may file their replication and bring the case to trial in
the usual source of procedure. ^^
J^'^Y ' 3. PARTNERSHIPS
C^ STANLEY FRANCIS v. J. HECTOR McNEAL
228 U. S. 695, 57 L. ed. 1029, 33 Sup. Ct. 701
(United States Supreme Court. May 26, 1913)
Mr. Justice HOLMES delivered the opinion of the court:
This is a proceeding to review an order of the bankruptcy
court to the effect that the separate estate of Stanley Francis
should be turned over for administration to the respondent,
McNeal, trustee in bankruptcy of a firm of which Francis was a
member. The order was made on the petition of the trustee,
and was afiflirmed upon a petition for revision by the Circuit
Court of Appeals. 108 C. C. A. 459, 186 Fed. 481.
The facts are short. Creditors filed a petition against Lati-
mer, Francis, and Marrin, alleging that they were partners
trading as the Provident Investment Bureau, and that they
were bankrupt individually and as a firm. McNeal was ap-
pointed receiver of the partnership and individual estates, but
Francis denied that he was a partner, and sought to^haye^ the
receiver discharged. Thereupon, on March 13, 1906, it was
agreed between tlie counsel for the receiver and for Francis
that McNeal should be discharged as receiver of the individual
estate of Francis; that the question whether Francis was a
partner should be referred to one of the regular referees; that
until the determination of that question, his counsel, Scott,
should collect the rents and retain possession of his estate;
and that thereafter Scott should account and turn over the
funds to such person as the court might direct. On April 17
an order was made embodying the agreement and naming a
referee. The referee found that_Francis„,was_a_partner^ and
that now stands admitted for the purposes of the present
decision. The firm was adjudicated bankrupt in June, 1909.
McNeal was appointed trustee in July, and forthwith filed the
\\—Cf. In re Eisenberg, 117 Fed. . see In re Stein, 127 Fed. 547, 62 C.
786. As to insanity of a partner C. A. 272.
PAETNBRSHIPS 97
petition upon which the order in question was made. The
order declared that the separate estate of Francis was subject
to administration in bankruptcy, and ordered the real estate
turned over to McNeal, with leave to sell. The firm, even ^
with the separate estates of the partners, will not be able to ^^ -
pay its debts~in~Iuirr'
Since Cory on Accounts was made more famous by Lindley
on Partnership, the notion that the firm is an entity distinct
from its members has g^own in popularity, and the notion has
been confirmed by recent speculations as to the nature of cor-
porations and the oneness of any somewhat permanently com-
bined group without the aid of law. But the fact remains
as true as ever that partnership debts are debts of the mem-
bers of the firm, and that the individual liability of the mem-
bers is not collaterjdjike that of a surety, but primary and
direct, whateverj>rioriti^_there_may be in the marshaling of
assets. The nature of the liability is determined by the com-
mon law, not by the possible intervention of the bankruptcy
act. Therefore ordinarily it would be impossible that a firm
should be insolvent while the members of it remained able
to pay its debts with money available for that end. A judgment
could be got and the partnership debt satisfied on execution
out of the individual estates.
The question is whether the bankruptcy act has established
principles inconsistent with these fundamental rules, although
the^business of such an act is, so far as may be, to p^serye, not
to upset, existing relations. It is true that by § 1, the word
"person," as used in the act, includes partnerships; that
by the same section, a person shall be deemed insolvent when
his property, exclusive, etc., shall not be sufficient to pay his
debts ; that by § 5a, a partnership may be adjudged a bank-
rupt, and that by § 14a, any person may file an application for
discharge. No doubt these causes, taken together, recognize the.
firm as an entity for certain purposes, the most important of
which, after all, is the old rule as to the prior claim of partner-
ship debts on partnership assets, and that of individual debts
upon the individual estate. § 5g. But we see no reason for
supposing that it was intended to erect a commercial device
for expressing special relations into an absolute and universal
formula, — a guillotine for cutting off all the consequences ad-
mitted to attach to partnerships elsewhere than in the bank-
ruptcy courts. On the contrary, we ^otild infer from § 5,
H. & A. Bankruptcy— 7 "~
98 JURISDICTION
clauses c through g, that the assumption of the bankruptcy act
was that the partnership and individual estates both were to
be administered, and that the only exception was that in h,
"in the event of one or more, but not all, of the members of a
partnership being adjudged bankrupt." [30 Stat, at L. 548,
c. 541, U. S. Comp. Stat. 1901, p. 3424.]
In that case, naturally, the partnership property may be
administered by the partners not adjudged bankrupt, and does
not come into bankruptcy at all except by consent. ,But we do
not perceive that_theclause imports that the partnership could
^in ba^rupteyT and the partners!^ ThTliypothesis is
/that some of the partners are in, but that the firm has remained
out, and provision is made for its continuing out. The neces-
sary and natural meaning goes no further than that.
On the other hand, it would be an anomaly to allow pro-
ceedings in bankruptcy against joint debtors from some of
whom, at any time before, pending, or after the proceeding, the
debt could be collected in full. If such proceedings were allowed,
it would be a further anomaly not to distribute all the partner-
ship assets. Yet the individual estate, after paying private
debts, is part of those assets, so far as needed. § 5f . Finally, it
would be a third incongruity to grant a discharge in such a
case from the debt considered as joint, but to leave the same
persons liable for it considered as several. We say the same
persons, for however much the difference between firm and
member under the statute be dwelt upon, the firm remains at
common law a group of men, and will be dealt with as such in
the ordinary courts for use in which the discharge is granted.
rifK_as Jn the present case, the partnership and individual estates
l^ogether jire not enough to pay the partnership debts, the rational
thing to d0j_and one certainly^ not forbidden By the act, is to
I .,administer_both in^^^S^ruptcy. If such a case is within § 5h,
it is enough that Francis never has objected to the firm prop-
erty being administered by the trustee.
If it be said that the logical result of our opinion is that
the partners ought to be put into bankruptcy whenever the firm
is, as held by the late Judge Lowell, in an able opinion (Ee
Forbes, 128 Fed. 137), it is a sufficient answer that no such
objection has been taken, but, on the contrary, Francis has
consented and agreed to hand over his property according to the
order of the court. So far as Vaccaro v. Security Bank, 43
C. C. A. 279, 103 Fed. 436, 442, is inconsistent with the opinion
CORPORATIONS
99
of the majority in Re Bertenshaw, 17 L. R. A. (N. S.) 886,
85 C. C. A. 61, 157 Fed. 363, 13 Ann. Gas. 986, we regard it as
sustained by the stronger reasons and as correct.
Decree affirmed. ^^
4. CORPOEATIONS
Note: Before the amendment of 191Q a corporation was not
entitled to become a voluntary bankrupt, and only certain classes
of corporations were liable to involuntary bankruptcy, their lia-
bility depending on whether they were "engaged principally
in manufacturing, trading, printing, publishing, ('mining'
was added by the amendment of 1903) or mercantile pursuits."
Many interesting distinctions were made in determining whether
corporations were within the liable classes, but they are, of
course, not of great importance under the law as it now stands,
which has returned to the phraseology of § 37 of the Act of
1867: "moneyed, business, or commercial corporations." The
decisions under that Act, which have been held to be authorita-
tive as to the interpretation of the 1910 amendment (In re R.
12 — Before the decision in Francis
V. McNeal the courts were hopelessly
divided on several questions arising
out of the provisions of § 5 of the
Act. It was pretty well agreed that
§ 5 (a) justified the treatment of
the firm itself as a distinct entity
apart from any or all of the part-
ners, and that this entity was ad-
judieable as a bankrupt whether the
partners were adjudicated or not.
Chemical Nat. Bk. v, Meyer, 92 Fed.
896; In re Perlhefter, 177 Fed. 299.
But on the question of insolvency
it was uncertain whether the sol-
vency of the firm should be deter-
mined by balancing firm liabilities
against firm assets (In re Berten-
shaw, 157 Fed. 363, 85 C. C. A. 61;
In re Everybody's Market, 173 Fed.
492) or whether the individual assets
of the several partners should also
be included (In re Blair, 99 Fed. 76;
Vaccaro v. Bank, 103 Fed. 436, 43
C. C. A. 279; Francis v. McNeal,
186 Fed. 481, 108 C. C. A.
459);
the weight of authority doubtless
inclining to the latter view. And on
the question as to whether the trus-
tee in bankruptcy of the bankrupt
firm should administer both the firm
estate and the estates of the non-
bankrupt partners the courts also
divided; one line of cases (of which
Francis v. McNeal, 186 Fed. 481,
108 C. C. A. 459; Dickas v. Barnes,
140 Fed. 849, 72 C. C. A. 261; and
In re Duke & Sons, 199 Fed. 199,
are representative) held that the
firm trustee had this power, and that
§ 5 (h) referred only to cases in
which some of the partners, but not
the firm itself, were bankrupt ; other
cases (In re Junck & Balthazard,
169 Fed. 481; In re Solomon &
Carvel, 163 Fed. 140) following the
doctrine of the Bertenshaw case,
held that the firm trustee had no
such power, and that § 5 (h) was
intended to govern the case of a
firm which had been adjudicated.
See note in 10 Mich. Law Eev. 215.
i F-l- fH
100 JURISDICTION
L. Radke Co., 193 Fed. 735), held generally that these words
included practically every corporation organized for pecuniary
profit. See Adams v. Boston, etc., R. R. Co., Holmes 30, 1
Fed. Cas. No. 47 ; Sweatt v. id., 3 Cliff. 379, 23 Fed. Cas. No.
13684; Rankin v. Florida, etc., R. R. Co., 20 Fed. Cas. No.
11567 ; Winter v. Iowa, etc., Ry. Co., 2 Dill. 487, 30 Fed. Cas.
No. 17890; In re Independent Ins. Co., Holmes 103, 13 Fed.
Cas. No. 7017 ; In re Merchants Ins. Co., 3 Biss. 162, 17 Fed.
Cas. No. 9441 ; In re Hercules, etc., Soc., 6 Benedict 38, 12 Fed.
Cas. No. 6402.
CHAPTER II
PREREQUISITES TO ADJUDICATION
SECTION I
IN VOLUNTARY PROCEEDINGS . „ ,
S^ ^ In re SCHWANINGER ^ "^ ^^^^
, »..,*> 144 Fed. 555 " ^ ^
''* (District Court, E. D. Wisconsin. March 2, 1906)
QUARLES, District Judge. This is a motion to discharge
a voluntary petition in bankruptcy, and to set aside the adjudi-
cation made thereon] The schedules of the bankrupt show but
one debt, which is a judgment for $1,065.80. The schedule of
assets discloses that the entire property of the bankrupt con-
sists of chattels amounting in value to $50, all of which is
claimed as exempt, and undoubtedly is exempt under the statutes
of Wisconsin. ^
The question raised by the motion is a novel one. /The sole
creditor appears and raises the contention that a debtor having
but one debt and no assets to which the trustee can take title
under the act, is not a person qualified to become a bankrupt
under the provisions of Bankr. Act July 1, 1898, c. 541, 30 Stat.
544 [U. S. Comp. St. 1901, p. 3418], and that the court has
acquired no jurisdiction over the case.l As jurisdiction in bank-
ruptcy springs wholly from the statute, the pending question
must hinge upon the construction of the provisions of the act
of Congress. § 4 (30 Stat. 547 [U. S. Comp. St. 1901, p. 3423] ),
provides that "Any person who has [owes] debts, except a cor-
poration, shall be entitled to the benefits of Ihis act as a volun-
tary bankrupt." It is contended that this language clearly
indicates the purpose of Congress to extend the benefits of the
act only to such debtors as have a plurality of debts; that the
language is so plain there is no room for construction. But
§ 1, subd. 29, under the title "Definitions," provides that "words
importing the plural number may be applied to and mean only
101
102 PREREQUISITES TO ADJUDICATION
a single person or thing." This provision, if applicable, would
make the text of § 4 read * ' debts or debt, ' ' and would seem to
settle the question adversely to the present motion. No doubt
has been expressed so far as we can find, in any text-book or
adjudicated case, that § 4 ought to be construed with reference
to the definition provided in § 1.
Re_^Magles_(D^ C.) 105 Fed. 922, i^^ jcasejwhgiae_ihgre_was
but a single deBt, and where there were no assets. If the
objection which we are now considering were sound, it was
clearly decisive of the Maples Case. But the court was at great
pains to point out that the solitary debt in that case was not a
provable debt within the purview of the bankruptcy act. The
court there held "the bankrupt in his petition, therefore, has
not presented any debt or claim from which this court can dis-
Miarge him." While the court did not expressly say that a
I single provable debt would answer the purposes of jurisdic-
(tion, we are left to infer as much from what the court did say.
Re Yates (D. C.) 114 Fed. 365, is another case where the only
debt disclosed by the schedules was a judgment in tort, wherein
an appeal had been taken which suspended its mandate for the
time being. There is no suggestion in the opinion that the
judgment, if final, and of a nature to be proved as a debt,
would not sustain the jurisdiction. The reasoning of the court
would certainly lead us to the opposite conclusion. I pass now
to consider the second proposition upon which this motion is
based.
It is contended that where there is no property to be dis-
tributed there is no function to be performed by any officer
kno¥m to the act, and that the machinery provided by the law
will be wholly inoperative, and that such a proceeding, culminat-
ing only in the discharge from a single obligation, was not
within the contemplation of Congress. While it is true that
the act of 1898 contemplates distribution as well as discharge,
the presence of assets has not been specificallvjree^nized andiaid
d$wn_asje^ntialtojur^^ of indebted-
ness has been^^plicitly made a condition precedent. Cases are
• cited holding that the absence of assets is fatal to the jurisdic-
tion of probate courts. Such cases are not in point here, because
the distribution of assets among creditors and legatees or heirs
at law, is the sole function of a court of probate. Wlien^he
bankruptcy act was passed. Congress had in mind the relief of
unfortunate debtors. That humane policy permeates the entire
VOLUNTARY PROCEEDINGS 103
act, and seems to have been made quite as important a function
as an equitable distribution of assets among the creditors. The
bankruptcy act of 1841 was the first act which provided for an
unqualified discharge of the debtor. Its constitutionality was
assailed, and the court, in Re Klien, 1 How. (42 U. S.) 277,
note, Fed. Gas. No. 7,865 say:
"Of this subject Congress has general jurisdiction; and the
true inquiry is, to what limits is that jurisdiction restricted?
I hold it extends to all cases where the law causes to be dis-
tributed the property of the debtor among his creditors ; this is
its least limit. Its greatest is a discharge of the debtor from
his contracts. And all intermediate legislation, affecting sub-
stance and form, but tending to further the great end of the
subject — distribution and discharge — are in the competency and
discretion of Congress. ' '
In Hanover National Bank v. Moyses, 186 U. S. 181, 188, 22
Sup. Ct. 857, 46 L. ed. 1113, which involved the constitutionality
of the act of 1898, the court say:
"The subject of 'bankruptcies' includes the power to dis-
charge the debtor from his contracts and legal liabilities as well
as to distribute his property. The grant to Congress involves
the power to impair the obligation of contracts, and this the
states were forbidden to do."
Later on, on page 192 of 186 U. S., page 862 of 22 Sup. Ct.
(46 L. ed. 1113), the court say:
"The determination of the status of the honest and unfortu-
nate debtor by his liberation from encumbrance on future ex-
ertion is matter of public concern, and Congress has power to
accomplish it throughout the United States by proceedings at
the debtor's domicil."
It is difficult to understand why a debtor owing a singlel
obligation of $1,065, should not fall within the merciful policy
of the act. It is an accidental circumstance that the indebted-/
ness was not distributed among two or more creditors. His case'
is clearly within the spirit of the act, and no good reason has
been suggested why he should not be within its scope and opera-
tion. It is my belief that Congress had not in mind any pur-
pose to discriminate against an unfortunate debtor who is op-
pressed by a single obligation, and that the will of Congress
will be effectuated by making the definition above recited
104 PREREQUISITES TO ADJUDICATION
applicable to § 4, and treating the term "debts" where it occurs
in such section as the equivalent of * * debt. ' '
For these reasons the motion will be denied. ^
j^>^ SECTION II
' J^ n^IN INVOLUNTARY PROCEEDINGS
**^ a/**Q ^./t^ *^ A. Insolvency
^^ jyVi GEORGE M. WEST CO. v. LEA et al.
174 U. S. 590, 43 L. ed. 1098, 19 Sup. Ct. 836
(United States Supreme Court. May 22, 1899)
p-^ f"
Mr. Justice WHITE delivered the opinion of the court.
The facts stated in the certificate of the Circuit Court of
Appeals are substantially as follows:
Lea Bros. & Co. and two other firms filed on December 18,
1898, a petition in the District Court of the United States for
the Eastern district of Virginia^ praying that an alleged debtor,
the George M. West Company, a corporatiqn, located in Rich-
mond, Va., be adjudicated a bankrupt, because of the fact that
it had, on theHate^ the filing of the petition, executed a deed
qf_general assi^ment, conveying all its property and assets
to Joseph V. Bidgoodf, trustee. The George M. West Company
pleaded, denying that at the time of the filing of said petition
against it the corporation was insolvent, within the meaning of
the bankrupt act, and averring that its property, at a fair
valuation, was more than sufficient in amount to pay its debts.
The prayer was that the petition be dismissed. The court re-
jected this plea, and adjudicated the West Company to be a
bankrupt. The cause was referred to a referee in bankruptcy,
and certain creditors secured in the deed of assignment, who had
instituted proceedings in the law and equity court of the city
of Richmond, under which that court had taken charge of the
administration of the estate and trust under the deed of assign-
ment, were enjoined from further prosecuting their proceedings
in the state court under said deed of assignment. 91 Fed. 237.
From this decree an appeal was allowed to the Circuit Court of
1 — See also In re Lachenmaier, that creditors are not authorized by
203 Fed. 32, 121 C. C. A. 368. In the Act to file answers to a voluntary
re Jehu, 94 Fed. 638, it was held petition in bankruptcy.
INSOLVENCY i\H 105
Appeals for the Fourth circuit. On the hearing of said appeal
the court, desiring instructions, certified the case to this court.
The certificate recites the facts as above stated, and submits the
following question:
"Whether or not a plea that the party against whom the
petition was filed 'was not insolvent, as defined in the bank-,
rupt act, at the time of the filing of the petition against him,' \
is a valid plea in bar to a petition in bankruptcy filed against /
a debtor who has made a general deed of assignment for the/
benefit of his creditors." •^
The contentions of the parties are as follows: On behalf of
the debtor it is argued that under the bankrupt act of 1898 two
things must concur, to authorize an adjudication of involuntary
bankruptcy. First, insolvency in fact, and, second, the com-
mission of an act of banSruptcy^__From this proposition the con-
clusion is deduced that a debtor against whom a proceeding in
involuntary bankruptcy is commenced is entitled, entirely irre-
spective of the particular act of bankruptcy alleged to have
been committed, to tender, as a complete bar to the action,
an issue of fact as to the existence of actual insolvency at the
time when the petition for adjudication in involuntary bank-
ruptcy was filed. On the other hand, for the creditors it is
argued that whilst solvency is a bar to proceedings in bankruptcy
predicated upon certain acts done by a debtor, that as to other
acts of bankruptcy, among which is included a general assign-
ment for the benefit of creditors, solvency at the time of the filing
of a petition for adjudication is not a bar, because the bankrupt
act provides that such deed of general assignment shall, of
itself alone, be adequate cause for an adjudication in involuntary
bankruptcy, without reference to whether the debtor by whom
the deed of general assignment was made was in fact solvent
or insolvent. ;
A decision of these conflicting contentions involves a construe-y
tion of JXof the act of 1898 (30 Stat. 546). * » • ^
It will be observed that the section is divided into several
paragraphs, denominated as a, b, c, d, and e. Paragraph a is
as follows:
"§3. Acts of Bankruptcy, (a) Acts of bankruptcy by a
person shall consist of his having (1) conveyed, transferred,
concealed, or removed, or permitted to be concealed or removed,
any part of his property with intent to hinder, delay, or defraud
his creditors, or any of them ; or (2) transferred, while insolvent.
106 PREREQUISITES TO ADJUDICATION
any portion of his property to one or more of his creditors with
intent to prefer such creditors over his other creditors; or (3)
suffered or permitted, while insolvent, any creditor to obtain
a preference through legal proceedings, and not having at least
five days before a sale or final disposition of any property
affected by such preference vacated or discharged such pref-
erence; or (4) made a general assignment for the benefit of his
creditors; or (5) admitted in writing his inability to pay his
debts and his willingness to be adjudged a bankrupt on that
ground."
It is patent on the face of this paragraph that it is divided
into five different headings, which are designated numerically
from 1 to 5. Now, the acts of bankruptcy embraced in divisions
numbered 2 and 3 clearly contemplate, not only the commission
of the acts provided against, but also cause the insolvency of
the debtor to be an essential concomitant. On the contrary, ^sl
tothe acts embraced in enumerations 1, 4, and 5, there is no/
^express requirement that the acts should liave T)een eomihitteB
while insolvent. Considering alone the text of paragraph a, it^
results that the nonexistence of insolvency at the time of the
filing of a petition for adjudication in involuntary bankruptcy
because of the acts enumerated in 1, 4, or 5 (which embrace the
(making of a deed of general assignment), does not constitute a
Mefense to the petition, unless provision to that effect be else-
(where found in the statute. This last consideration we shall
hereafter notice.
The result arising from considering the paragraph in ques-
tion would not be different if it be granted arguendo that the
text is ambiguous, for then the cardinal rule requiring that we
look beneath the text for the purpose of ascertaining and enforc-
r ing the intent of the lawmaker would govern. Applying this
\ rule to the enumerations contained in paragraph a, it follows
that the making of a deed of general assignment, referred to
in enumeration 4, constitutes in itself an act of bankruptcy,
which per se authorizes an adjudication of involuntary bank-
^ruptcy entirely irrespective of insolvency. This is clearly
demonstrated from considering the present law in the light
afforded by previous legislation on the subject.
Under the English bankruptcy statutes (as well that of 1869
as those upon which our earlier acts were modeled), and
our own bankruptcy statutes down to and including the act
of 1867, the making of a deed of general assignment was
INSOLVENCY 107
dgemed to be repugnant to the policy^of the bankruptcy lawa^
and^ as a necessary consequence, constituted an act of bank-
ruptcy, per se. This is shown by an examination of the de-
cisions bearing upon the point, both English and American, In
Globe Ins. Co. v. Cleveland Ins. Co., 14 N. B. R. 311, 10 Fed.
Cas. 488, the subject was ably reviewed, and the authorities are
there copiously collected. The decision in that case was ex-
pressly relied upon In re Beisenthal, 14 Blatchf. 146, Fed. Cas.
No. 1,236, where it was held that a voluntary assignment, with-
out preferences, valid under the laws of the state of New York,
was void as against an assignee in bankruptcy; and this latter
case was approvingly referred to in Reed v. Mclntyre, 98 U. S.
513. So, also, in Boese v. King, 108 U. S. 379, 385, 2 Sup. Ct.
765, it was held, citing (p. 387, 108 U. S., and p. 771, 2 Sup.
Ct.) Reed v. Mclntyre, that whatever might be the effect of a
deed of general assignment for the benefit of creditors, when
considered apart from the bankrupt act, such a deed was repug-
nant to the object of a bankruptcy statute, and therefore was,
in and of itself alone, an act of bankruptcy. The foregoing
decisions related to deeds of general assignment made during the
operation of the bankrupt act of 1867 (14 Stat, 536), or the
amendments thereto of 1874 and 1876 (18 Stat. 180; 19 Stat.
102), Neither, however, the act of 1867, nor the amendments to
it, contained an express provision that a deed of general assign-
ment should be a conclusive act of bankruptcy. Such conse-
quence was held to arise, from a deed of that description, as a
legal result of the clause in the act of 1867 forbidding assign-
ments with "intent to delay, defraud or hinder" creditors, and
from the provision avoiding certain acts done to delay, defeat,
or hinder the execution of the act. Rev, St. 5021, pars. 4, 7.
Now, when it is considered that the present law, although it
only retained some of the provisions of the act of 1867, con-
tains an express declaration that a deed of general assignment
shall authorize the involuntary bankruptcy of the debtor making
such a deed, all doubt as to the scope and intent of the law is
removed. The conclusive result of a deed of general assign-
ment under all our previous bankruptcy acts, as well as under
the English bankrupt laws, and the significant import of the
incorporation of the previous rule, by an express statement, in
the present statute, have been lucidly expounded by Addison
Brown, J., In re Gutwillig, 90 Fed. 475, 478,
But it is jirgued that, whatever may have been the rule in
108 PREREQUISITES TO ADJUDICATION
previous bankruptcy statutes, the present act, in other than
the particular provision just considered, manifests a clear in-
tention to depart from the previous rule, and hence makes insol-
vency an essential prerequisite in every case. To^aintain this
proposition^^ reliance is placed upon para^aph c of § 3, which
reads as follows^ ; • ■•■> t- ! ■
**(c) It shall be a complete defense to any proceedings in
bankruptcy instituted under the first subdivision of this sec-
tion to allege and prove that the party proceeded against was
not insolvent as defined in this act at the time of the filing the
petition against him, and if solvency at such date is proved
by the alleged bankrupt the proceedings shall be dismissed, and
under said subdivision one the burden of proving solvency shall
be on the alleged bankrupt."
The argument is that the words "under the first subdivision
of this section" refer to all the provisions of paragraph a, be-
cause that paragraph, as a whole, is the first part of the section,
separately divided, and, although designated by the letter a,
it is nevertheless to be considered, as a whole, as subdivision 1.
But whether the words "first subdivision of this section," if
considered intrinsically and apart from the context of the act,
would be held to refer to paragraph a as an entirety, or only
Jtothe first subdivision of that paragraph, need not be considered.
We arejeoncemed only with the meaning of the- words. aa_us^d
iojlhe law we are interpreting. Now, the context makes it plain
that the words relied on were only intended to relate to the
^rst numerical subdivision of paragraph a. Thus, in the last
sentence of paragraph c the matter intended to be referred to
by the words "first subdivision of this section," used in the
prior sentences, is additionally designated as follows, "and
under said subdivision one," etc., — language which cannot pos-
sibly be, in reason, construed as referring to the whole of para-
graph a, but only to subdivision 1 thereof. «•
This is, besides, more abundantly shown by paragraph d,
which provides as follows :
"(d) "Whenever a person against whom a petition has been
filed as hereinbefore provided under the second and third sub-
divisions of this section takes issue with and denies the allega-
tions of his insolvency, it shall be his duty to appear in court on
the hearing with his books, papers and accounts and submit
to an examination, and give testimony as to all matters tending
to establish solvency or insolvency, and in case of his failure
INSOLVENCY 109
to so attend and submit to examination the burden of proying
his solvency shall rest upon him."
This manifestly only refers to enumerations 2_and_3_found
in paragraph a, which, it will be remembered, make it essential
that the acts of bankruptcy recited should have been committed
by the debtor while insolvent. Indeed, if the contention ad-
vanced were followed, it would render § 3, in many respects,
meaningless. Thus, if it were to be held that the words "first
subdivision of this section, ' ' used in paragraph c, referred to the
first division of the section (that is, to paragraph a as a whole),
it would foUow that the words "second and third subdivisions of
this section," used in paragraph d, would relate to the second
and third divisions of the section (that is, to paragraphs b and
c). But there is nothing in these latter paragraphs to which
the reference in paragraph d could possibly apply, and there-
fore, under the construction asserted, paragraph d would have
ho significance whatever. To adopt the reasoning referred to
would compel to a further untenable conclusion. If the reference
in paragraph c to the "first subdivision of this section" relates
to paragraph a in its entirety, then all the provisions in para-
graph a would be governed by the rule laid down in paragraph
c. The rule, however, laid down in that paragraph, would be
then in irreconcilable conflict with the provisions of paragraph
d, and it would be impossible to construe the statute har-
moniously without eliminating some of its provisions.
Despite the plain meaning of the statute as shown by the
foregoing considerations, it is urged that the following pro-
vision contained in paragraph b of § 3 operates to render any
and all acts of bankruptcy insufficient, as the basis for proceed-
ings in involuntary bankruptcy, unless it be proven that at
the time the petition was filed the alleged bankrupt was in-
solvent. The provision is as follows : "A petition may be filed
against a person who is insolvent and who has committed an
act of bankruptcy within four months after the commission of
such act." Necessarily if this claim is sound, the burden in all
cases would be upon tne pemioningjcre^tgr£3g;;3gte^fe_iyid
"prove suclrinsotVency. Thecontention, however, is clearly re-
butted by the terms of paragraph c, which provides as to one
of the classes of acts of bankruptcy, enumerated in paragraph
a, that the burden should be on the debtor to allege and prove
his solvency. So, also, paragraph d, conforming in this respect
to the requirements of paragraph a, contemplates an issue as
110 PREREQUISITES TO ADJUDICATION
to the second and third classes of acts of bankruptcy, merely
with respect to the insolvency of the debtor at the time of the
commission of the act of bankruptcy. Further, a petition in a
proceeding in involuntary bankruptcy is defined in § 1 of the
act of 1898, enumeration 20, to mean "a paper filed • • •
by creditors alleging the commission of cm act of ha/nkruptcy
by a debtor therein named."
It follows that the mere statement in the statute, by way
of recital, that a petition may be filed ''against a person who
is insolvent and who has committed an act of bankruptcy,"
was not designed to superadd a further requirement to those
contained in paragraph a of § 3, as to what should constitute
acts of bankruptcy. This reasoning also answers the argument
based on the fact that the rules in bankruptcy promulgated by
this court provide in general terms for an allegation of insol-
vency in the petition, and a denial of such allegation in the
answer. These rules were but intended to execute the act, and
not to add to its provisions by making that which the statute
treats in some cases as immaterial a material fact in every case.
Therefore, though the rules and forms in bankruptcy provide
for an issue as to solvency in cases of involuntary bankruptcy,
where by the statute such issue becomes irrelevant, because the
particular act relied on in a given case conclusively imports a
right to the adjudication in bankruptcy if the act be established,
the allegation of insolvency in the petition becomes superfluous,
or, if made, need not be traversed. '
'Our conclusion, then, is that as a deed of general assignment
Hor the benefit of creditors is made by the bankruptcy act alone
Sufficient to justify an adjudication in involuntary bankruptcy
against the debtor making such deed, without reference to his
solvency at the time of the filing of the petition, the denial of
insolvency by way of defense to a petition based upon the mak-
ing of a deed of general assignment is not warranted by the
bankruptcy law, and therefore that the question certified must
be answered in the negative.
And it is so ordered.^
2 — As to the necessity (before tary petition, see In re Lachenmaier,
the 1910 amendment of § 4a) of an 203 Fed. 32, 121 C. C. A. 368.
averment of insolvency in a volun-
INSOLVENCY _ 111
In re HINES ' ,A J -
144 Fed. 142 ^ . -
(District Court, D. Oregon. February 5, 19ol) "^'^^^'W'^ fT
Several creditors of S. E. Hines, of North Bend, Coos county,
Or., on January 25, 1905, filed their petition in court charging
him with having committed an act of bankruptcy, in that, while
insolvent, and on January 17, 1905, he suffered a judgment to
be obtained against him in the sum of $2,030, upon which execu-
tion has been issued and certain property of defendant levied
upon, and that defendant has not vacated or discharged the
same. The defendant controverts these allegations, and avers
that his^ property, at a fair valuation, is worth $3,000 in excess
of his^indebte^ess or liabilities.
WOLVERTON, District Judge. The single question pre-
sented by counsel for the creditors for consideration is: Was
the defendant insolvent when the judgment was entered against
him andjevxmade in pursuance of the execution issued thereon ?
If he was, he is guilty of the act of bankruptcy charged ; if not,
the petition should be dismissed. In re Rome Planing Mill
(D. C). 96 Fed. 812.
By the fii^t section (subdivision 15) of the bankruptcy act
(Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901,
p. 3419]. See Collier on Bankruptcy [4th ed.] p. 2.) a person
is deemed insolvent whenever the aggregate of his property,
exclusive of any property that he may have conveyed, trans-
ferred, concealed, or removed, or permitted to be concealed or
removed, with intent to defraud, hinder, or delay his creditors,
is not, at a fair valuation, sufficient in amount to pay his debts.
Lj!f As it respects property considered in a commercial sense, I can
r^ conceive of no better or surer standard by which to arrive at a
P,^J(^ fair valuation than the^ market value; that is, what the prop-
' ' erty will probably bring, or is worth in the general market, where
everybody buys. It could noTHe what it is worth to one person
or to another specially circumstanced, or having special use for
a particular article, but what it is worth as a marketable com-
modity, at a given time, with no special conditions prevailing
other than affect the market generally in the locality where the
commodity is for sale. "We think," says Mr. Justice Gray,
in an able and elaborate opinion rendered in the Circuit Court
112 PREREQUISITES TO ADJUDICATION
of Appeals for the Third Circuit, in the case of Duncan v.
Landis, 106 Fed. 839, 858, 45 C. C. A. 666, 685, ''that__thfi
.present market value of the property in question wouIdTbe a
[lair valiiation of the same." See, also. In re Bloch, 109 Fed.
790, 48 C. C! A. 650, and In re Coddington (D. C.) 118 Fed. 281.
The intendment of the statute could scarcely be otherwise,
giving the language employed its usual and natural significance.
Thejdiffiuulty-is, and perhaps always will be, in arriving at the
market value. Unless the commodity has a value quotable iu
the current markets of daily or frequent sales, there is much of
opinion that enters into the estimate, and from this must be
deduced the probable market value, and consequently, under
the bankruptcy act, a fair valuation. Nor is such valuation
affected by any depreciation of property consequent upon the
recovery of judgment against the debtor and a levy thereunder.
The language of the act is: "Having * * * suffered or
permitted, while insolvent, any creditor to obtain a preference
through legal proceedings," etc. (§3, subd. 3, Bankr. Act [30
Stat. 546 ; U. S. Comp. St. 1901, p. 3422] ; Collier on Bank-
ruptcy [4th ed.] p. 2, § 3, p. 27) — the intendment being that
the insolvency must exist at the time of suffering the preference
to be taken; for, if the debtor ,ia, solyent^, would be.perf ectly
proper and legitimate for^in^to make any sort of preference
^Ea$2fi-5ugK^e fit. The fact of suffering the preference, there-
fore, unless iTmiglit be under circumstances indicating that he
intended to hinder, delay, or defraud certain of his creditors,
could not be permitted to affect the value of his assets. If
such were the case, then a person, who was before perfectly
solvent, might be rendered insolvent by an action, accompanied
by an attachment, and his insolvency would depend upon
whether he could pay his debts under the stress of the occasion,
and not, under the simple inquiry prescribed by the bankruptcy
act, ..wh^therJhe_agg£egajja,j>t-Ms_^^
is sufificient_ in ainouEyt_to_XLax.his_d^ Such is the rationale
of the holding in Chicago Title & Trust Co. v. Roebling's Sons
Co. (C. C.) 107 Fed. 71. That was an action by the trustee to
recover on account of a preference alleged to have been obtained
by a creditor attaching the manufacturing plant of the debtor,
together with raw materials in store. The attachment destroyed
the value of the plant as a going concern, and impaired also
the value of the materials. It therefore became material to
determine whether the valuation should be according to the
INSOLVENCY 113
worth of the property prior or subsequent to such attachment,
and the conclusion was that the prior worth was the appro-
priate standard by which to make the estimate; Kohlsaat, Dis-
trict Judge, saying:
' ' While I regret to be forced to the conclusion, yet I am of the
opinion that, under the wording of the present bankruptcy act,
and especially the proper interpretation of the words 'being
insolvent, ' such action on the part of a judgment creditor would
not create a preference recoverable by the trustee under the
terms of the act."
This decision, while not distinctly upon the point under dis-
cussion, is perfect in analogy, and its authority cannot be gain- Q^P
said. Nor should nronertv exempt by the state law from execu- ^^"^^^^^^
tion be deducted from the debtor's assets in ascertaining '^^^^•'^-^v^;
whether they are, at a fair valuation, sufficient in amount to F'Wl^
pay his debts. This has been directly decided in the case of
Jn re Baumann (D- C) 96 Fed 948. The question came up on
a construction of such subdivision 15, of § 1, of the bankruptcy
act. Mr. Justice Hammond says, relative to the provision :
"This is probably as arbitrary a provision as is to be found
in the statute. It was intended to wipe out, as with a sponge,
all that confusion which is to be found in previous bankruptcy
statutes and decisions as to the meaning of the word ' insolvency. '
It had also the more comprehensive purpose of designating
with absolute fixity the only class of persons upon whom the
involuntary features of the bankruptcy statute should operate,
namely, those whose property was not sufficient in amount to
pay their debts. It does not proceed upon any theory that the
debts will in fact be paid by the appropriation of the property
to that 9i^(j. nor upon the theory that as a matter of fact it is
available for compulsory payment, but upon the theory that
the defendant has sufficient property with which he may pay
his debts if he chooses to do so. . * * * Moreover the language
of the above-quoted section is explicit. There is not the least
ambiguity about its meaning. It leaves no room for any con-
struction by implication or otherwise. Obviously, it was in-
tended to give us a rule in mathematics, the terms of which
are absolute."
■-'So arguing, and in further consideration that the act has
made one exception, and one only — that of property conveyed
or concealed with intent to defraud — it was concluded that it
was clearly not the, intendment of Congress to make another
H. & A. Bankruptcy — 8
114 PREREQUISITES TO ADJUDICATION
exception in relation to exempt property. The reasoning of the
learned justice is strong and cogent, and his conclusion irre-
sistible. TheJanguage of the act is very plain, without ambiguity
or double meaning, and, when it is found that one exception
is expressly made, it excludes, by almost" absolute inference,
a deduction tnat another was also intended, so that, upon a
'simple construction ot the act, It'Tslnanifestlhat it was not the
purpose or intendment of the lawgiver that exempt property
should be deducted in ascertaining the amount of the debtor's
property at a fair valuation.
In this view of the law, I will now examine the facts as
disclosed by the evidence, to determine whether Hines was in-
solvent at the time the judgment was entered against him and
levy made.
The property which Hine_s,, claims he owned consists of a
stock of nierchandise (the same that was levied upon) ; bills^Hid
accounts, and $350 in cash ; lot 3, block 19, in the town of North
Bend, upon which is situated a two-story building 38x70 feet,
the lower floor being occupied by Hines as a storeroom; and
lots 1, 2 and 3 in block 45, without improvement. The day
following the levy, Hines, assisted by the sheriff and S. Bachy
and J. W. Grout, took an inventory of the stock in the store,
which footed up to $3,278.84. The original cost price, which
was ascertained from the markings upon the different articles
going to make up the stock, or from the bills of purchase where
the marking could not be found, was made the basis of valua-
tion. No allowance was made for shopworn goods, as it was
said the stock was **not very old." Bachy and Grout concur
with Hines as to the manner of taking the inventory. I am
satisfied that it was fairly made upon the basis of the cost
price to Hines when he purchased the goods in the first instance.
Hines testifies that at the time of the attachment he had some
bills that amounted to as much as $200; the amount set down
being $250. He further states that he had $350 in cash, which
also appears to have gotten into the inventory. This comprises
the whole of his personal property.
Lot 3, block 19, upon which the store building is situated,
is incumbered by a mortgage of $1,000, The value of this
piece of realty is variously estimated by the witnesses, ranging
from $3,000 to $4,500. The lot cost the defendant, on February
10, 1904, $1,000, excavation $300, and for construction of store
building about $2,000 — ^thus aggregating $3,300. As to lots 1,
INSOLVENCY 115
2, and 3 of block 45, Hines testifies that he paid for them $200
each, or for the whole $600. These were valued by witnesses
ranging from $800 to $1,050, Hines had made some improve-
ment upon them, by way of clearing them in part of brush and
timber, at a cost, he affirms, of about $100. Touching the value
of the stock of merchandise, several witnesses testify that it is
worth, at sheriff's sale, being under attachment, from 50 to 65
and 70 cents on the inventoried value ; that it would not bring
more than these figures at forced sale. Two witnesses, H. Lock-
hart and H. J, Edwards, testify to the value of the stock if dis-
posed of in bulk, while the concern was in active operation.
Lockhart says the discount to be allowed upon the invoice price
"is a matter to be agreed upon between the buyer and seller;
it depends upon the age of the stock and its condition, and the
value of the business. Twenty-five per cent, is the maximum \
amount generally allowed in such cases; discount sometimes |
being greatly in excess of that." Edwards corroborates this
view, and no one controverts it. It seems, therefore, that the
probable marketable value of this stock of goods, being in good
condition, that is, "not very old," if then sold in bulk, prior to
attachment and while the venture was a going concern, would
have approximated 75 per cent, of the invoice, or $2,459.13.
Such an estimate is the only one reasonably deducible under
the evidence. The value of the accounts or bills has not been
proved. Hines says, in effect, they amounted to $200 or $250,
but he gives no itemized statement thereof, nor any informa-
tion whatever as to whether they are against solvent persons.
He may have had the bills, perhaps did, but they may have
been worthless. As to their value, he makes no suggestion or
statement. The cash item must be admitted, although the tes-
timony is meager as to that. The estimates of value placed
on the store property were based, sometimes upon the estimated
rental value (it not having been shown that any part of the
building had been rented, except six of the upper rooms at
$15 per month), and sometimes upon the witness' opinion of
the value of real property in North Bend, without reference to
any particular standard, as actual sales of property and the
like. There appears to be no estimate by any witness of sale
values in the market at the time of the attachment. Charles
Windsor, cashier of the North Bend Bank, testifies that in his
opinion the property was worth from $3,000 to $3,500. He was
a witness for the defendant, and his statement approximates the
116 PREREQUISITES TO ADJUDICATION
original cost of the property to Hines — the purchase price of
the lot and the cost of excavation and building. There is yet
no evidence, however, that the property was worth in the market
what it cost the owner. There is evidence that the value of
property has increased since Hines purchased, but there is much
that property values have been vacillating in range, and, while
there is much uncertainty in the testimony from which to form
an opinion, I am impelled to the conclusion that the cost value
is approximately what the sale value was at the time of the
judgment and levy, thus rating lot 3, block 19, at $3,300. It
was probably not worth less than this.
As respects lots 1, 2, and 3, of block 45, it appears from
developments in the testimony that Hines never acquired the
legal title to them, nor is it very clear that he has such an
equitable right as entitles him under any condition to the legal
title. J. L. Simpson, of the Simpson Lumber Company, who
U at the time held the legal title to the lots in trust for the com-
\ pany, testifies that he sold the lots to Hines at $600; that the
amount was included in a note given by Hines to the lumber
company on settlement; and that the note is the same as sued
on by Guerry. So that it appears that nothing was paid down
on the lots, and this is shown by an account rendered by the
lumber company to Hines at the time of the alleged settlement.
When it was inquired whether Hines had a written contract for
the purchase of the lots, neither he nor Simpson was sure that
any such contract was ever executed, and none was or could be
produced at the trial. This leaves nothing but possessory title _
and some improvements made upon the lots, by way of clearing
them of ibrush and timber, upon which to base his right to the
legal title. These are shadowy and not well established.
Coupled therewith, it is not entirely clear that Hines did not
intend that the title to these lots should remain in doubtful
validity until his creditors were appeased. Consequently, he is
not entitled to have them included among his assets for the
purpose of determining his solvency.
/ As_to the remailidpr of hi8-jM!0jieily^-L-fiud.nojajLrEQse-Qnubi§.
/ part to cover orconceal any part of it with a view to putting the
l^a^^^beyondTthe reach of his creditors. His entire property,
therefore, toTwhich he was entitled, at its fair valuation at the
time of the judgment, consists of stock of merchandise, $2,459.13 ;
lot 3, block 19, North Bend, $3,300 ; and cash on hand, $350—
aggregating $6,109.13. The defendant's schedule of indebted-
/niTAnU- INSOLVENCY 117
ness shows an aggregate of $5,867.78. To this schedule should
be added accrued interest on mortgage, $20; to Wm. Cluff Com-
pany's demand, $1.94; to Fleischner, Mayer & Co.'s, $36.08;
to Wellman Peck & Co.'s, $10.15; to Cahn Nickelsburg & Co.'s,
$11.92 — making a total of liabilities in the sum of $5,947.87.
Hines' propert;;^;^_at a fair valuation, therefore, exceeded his
liabilities by $161.26, at the time of the entryof the judgment
and levy. ^^ — ■ — ""
It follows that he was not insolvent, and the petition in banfe,
ruptcy should be dismissed; and such will be the order of the
court.
. . .. HUTTIG MFG. CO. v. EDWARDS ^^^^ ^^^^^
160 Fed. 619, 87 C. C. A. 521 '^•-^— ^
(Circuit Court of Appeals, Eighth Circuit. March 27, 1908) ^T'W^
if ^^
r-' HOOK, Circuit Judge. The principal question on these ^ C
^^^'''^^peals is whether^the Huttig Manufacturing Company received^
a voidable preference when it took a mortage on all of the
property of D. Winter, bajakrupt. _ A&J:he mortgage was taken
within the prohibited period of four months we proceed to
inquire whether Winter was then insolvent, andif so^ whether
the manufacturing company or its agents acting therein had /
reasonable cause to believe a preference was intended. The
Trustee says he was insolvent because, first, he was a member
of the firm of E. D. Winter & Co., also adjudged bankrupt,
and the addition of D. Winter's debts and assets to those of
the firm confessedly exhibited a condition of hopeless insolvency ;
and second, if D. Winter was not a member of the firm his
debts exceeded the fair valuation of his property. We are of
opinion the second contention is well taken, and therefore need
not discuss the first. D. Winter's property consisted exclusively
of real estate. Hisjjadebtedne^ arose from lending his credit
to his son, E. D. Winter, who conducted the business of E. D,
Winter & Co., and from holding bi]|x|Relf out as a partner, though
he may not have been one in fact. There are some expressions
in the testimony, mostly if not wholly hearsay, that the real
estate of D. Winter, including his homestead, was estimated to
be worth from $18,000 to $20,000. The assessed value of all
excepting the homestead was $16,000, of the homestead $1,200.
The value fixed by sworn appraisers appointed in the bank-
118 PREREQUISITES TO ADJUDICATION
ruptey proceedings was $15,150, with $3,000 additional for the
hOTQ^ea^. AH that the trustee could obtain for the property
e:^lusiye of the homestead was $12,245.50. The proceeds were
brought into court to abide the result of this litigation, and they
were insufficient to pay the mortgage claim of the manufactur-
ing company. When_the_mort_gage was given D. Winter owed
the manufacturing company $13,391.73, August Carstens
$2,000, and the Merchants ' National Bank of Burlington^owa,
"$2^00, a total of $18,091,73^ He also owed the bank an addi-
tional $5,500 on two notes, but they were dated after the mort-
gage in question, and it was not shown they were renewals of
prior notes or when the indebtedness originated. It is con-
tended by the manufacturing company that the $13,391.73 for
which it took the mortgage was not D. Winter's debt, and
should not be considered in determining his solvency or in-
solvency. It was for goods sold by the manufacturing company
to E. D. Winter & Co., and it is admitted D. Winter_guaranteed
the debt before it was incurred. The trustee says the guaranty
was by a writing in which D. Winter also held himself out as
a member of the firm, while the manufacturing company con-
tends the signature of D. Winter to the writing was a forgery
by E. D. Winter, his son, and that the guaranty was an oral
one. ^n either event we thinkjthe amount of the debt directly
aflfectejLJX_Winter 's solvency. ^ surety of 'indxirser for a ItRrrk,
rupt has It^p^i TipI^I tn h^ fl, (>]'f>(lit,or within tl^ft mf>aning of t)tfi
banlrrnptf^v 1»w (Kobusch V. Hand [C. C. A.] 156 Fed. 660;
Swarts V. Siegel, 54 C. C. A. 399, 117 Fed. 13) ; and upon the
same principle a guarantor liable upon a fixed, liquidated de-
mand as this was, is a debtor to him who holds it, and his
liability is to be counted in determining his financial status.
Jhat the guaranty may have been oral and therefore within the
statute~ot trauas~of Iowa where the transaction occurred is
immaterial. The Iowa statute relates merely to the evidence
or proof of the undertaking, and not to its validity. Berryhill
V. Jones, 35 Iowa, 335; Merchant v. O'Rourke, 111 Iowa, 351,
82 N. W. 759. In the latter case it was said:
"The statute of frauds does not prohibit an oral contract nor
make such an agreement illegal because certain formalities are
not complied with, but relates only to the method by which proof
may be made in an attempt to enforce it."
The manufacturing company asserted and D. Winter admitted
the validity of the demand against him, and the former is not
INSOLVENCY 119
in position to say the latter was solvent because his property,
all of which it took under its mortgage, was sufficient to pay
his other creditors. If the mortgage held, the other^reditors
wauM__get_ nothing, and the solvency of the debtor would seem
quite_unsu^t^ti^
There is another matter affecting the financial condition of
,D. Winter. Some letters were received in evidence to which
[ his name was signed, and which stated he was a member of
D. Winter & Co. and liable for their debts^ One of these
letters was to a mercantile agency which made it the basis of
commercial reports upon the faith of which Welt & Reddel-
sheimer sold the firm goods amounting to $914.70. The genuine-
ness of the signature to the letter was attacked, but there were
received in evidence before the referee for purposes of compari-
son admitted writings of D. Winter, and his decision that D.
Winter so held himself out as liable, affirmed as it was by the
District Court, should not be disturbed. It^is altogether prob-
able that D. Winter owed much more^^but the debts mentioned
rendered him msolvent when he made the. mortgage. We are
al^ convincedUe knew it. He had previously given his daughter
all his household effects and jewels in order, as he said, "to
avoid all trouble for her in the future." He was conscious of
being deeply involved with his son who conducted the business
of E. D. Winter & Co., and he included in the mortgage to the
manufacturing company all of the property he had left. The \ >e7
necessarx_effect of the mortgage was to give the mortgageejT/ ^y^-t-e^
p^reierence over other creditors. / '-
The referee in bankruptcy and the District Court found the
manufacturing company had reasonable grounds to believe a
preference was intended. An attentive consideration of the
evidence and the fair inferences to be drawn from the facts
admitted or proved lead us to the conclusion the fiinding is
adequately supported. * * *
The decree of the District Court is * * * affirmed.
SANBORN, Circuit Judge (dissenting). I am unable to
assent to the opinion and the conclusion of the majority in this
case because in my opinion the competent evidence presented
fails to prove that D. Winter was insolvent, or that the Huttig
Manufacturing Company had reasonable cause to believe that he
was insolvent when he gave the mortgage, and it seems to me
that there is no substantial competent evidence that he or any
120
PREREQUISITES TO ADJUDICATION
other person with his knowledge or permission ever held him
out to creditors who relied upon such holding as a member of
the firm of E. D. Winter & Co.
B. Debts Amounting to $1,000 oe Over
§ 4b. Any natural person, except a wage-earner, or a person
engaged chiefly in farming or the tillage of the soil, any unin-
corporated company, and any moneyed, business or commercial
corporation, except a municipal, railroad, insurance, or bank-
ing corporation, owing debts to the amount of one thousand
dollars or over, may be adjudged an involuntary bankrupt.
* * *
§1 (11). "Debt" shall include any debt, demand, or claim
provable in bankruptcy.^
C. Petitioning Creditors
§ 59b. T^reejor^ more creditors who have provable claims
against any person which amount in the aggregate, in excess
of the value of securities held by them, if any, to five hundred
dollars or over; or if all of the creditors of such person are
less than twelve in number, then one of such creditors whose
claim equals such amount may file a petition to have him
adjudged a bankrupt.*
3 — The matter of provable claims
will be taken up under the head of
administration, see pages 384-476,
post.
4 — As to the right of a creditor,
who has assented to an assignment
by the alleged bankrupt for the bene-
fit of his creditors, to join in a pe-
tition based on the assignment as
an act of bankruptcy under § 3a (4),
see Moulton v. Coburn, 131 Fed.
01, 66 C. C. A. 90 (certiorari de-
led, 196 U. S. 640, 49 L. ed. 631,
5 Sup. Ct. 796);^X!aJM£i:-iJS4b-
■ter Tapper Co., 168 Fed. 519, 93
C. d. A., 541. As to whether such
assenting creditor should be counted
lio
a
1
in ^determining the number of credi
tors, see Stevens v. Neve-McCord
Merc. Co., 150 Fed. 71, 80 C. C. A.
25. As to status of preferred cred-
itors, see In re Smith, 176 Fed. 426.
As to amendments to petition, see
Manning v. Evans, 156 Fed. 106;
In re Charles Town L. & P. Co., 183
Fed. 160.
As to time when petitioner must/
have been a creditor, see Brake v,
Calllson, 129 Fed. 201, 63 C. C. A. ,^l^-
359 (affirming 130 Fed. 987); In ''
re Perry & Whitney Co., 172 Fed.
745; In re Hanyon, 180 Fed. 498
(affirmed 181 Fed. 1021, 104 C. C.
A. 667) ; In re Stone, 206 Fed. 356.
v^
/^ff'
FRAUDULENT CONVEYANCES 121
f^^'^ D. Acts op Bankruptcy
1. CONVEYANCES WITH INTENT TO HINDER, DELAY OR DEFRAUD '
GOWING V.RICH ^ ^"^ '^^.^^-C.^
1 Ired. L. 553 C^/--w^3C^
(Supreme Court of North Carolina. Junfe, 1841)-^^ ^ ^^
This was an action of ejectment, tried at Davie Superior Court
of Law at Fall Term, 1840, before his Honor Judge Pearson.
Both parties claimed under one Sheeks. The defendaiit ad-
mitted himself in possession. The plaintiff offered in evidence
a judgment in favor of one Alexander against one Chloe Oaks
and others, an execution thereon and a sheriff^s deed to him-
self, conveying all the interest of the said Chloe Oaks. The
plaintiff then offered evidence to prove, that the said Chloe
Oaks in the year 1836, while the suit of Alexander, which was
for a debt of about $2,500 was pending, had sold a negro
and had sold her home place for $700, and had contracted ver-
bally to buy^jthe JanjLiQ^iliiP^tioTi of Sheeks for $1,250; that,
on the day agreed upon to execute the writings, Sheeks went
to the house of Mrs. Oaks, when he was informed_by_Mra^
Hoskins, who was the daughter of Mrs. Oaks and the widow
of one Hoskins, who had died a few years before insolvent,
leaving his widow destitute and dependant upon her mother for
support, that-_she was tojbuyjthe land and _ would pay for it
agd take the deed in her own name. Sheeks expressed himself
willing to make the deed to whoever paid him the money, and,
accordingly, with the knowledge and consent of Mrs. Oaks, he_
made the deed to Mrs. Hoskins and received from h^ $700_in
c^ih^ of which $600 was in one hundred dollar bills, and took
Mrs. Hoskins' note under seal for the balance, $550. Sheeks
stated that he took Mrs. Hoskins' note without security, be-
cause he was told and believed that the land was bound to
him for the purchase money. The plaintiff then offered_evi-
dence to prove that Mrs. Oaks had ISought and paid for the
land; that the $700 paid'waslier money, which she had handed
to Mrs. Hoskins, with the understanding that the deed was
to be taken in the name of Mrs. Hoskins to keep off the creditors
of Mrs. Oaks; and that Mrs. Hoskins was to execute the note
for the balance of the purchase money, but Mrs. Oaks was to
pay it. The defendant offered evidence to shew that the $700
* The statute of 13 Elizabeth, and lation on this subject, will be found
an early New York statute, the pat- in the Appendix, -post. pp. 715-718.
tern for much of the American legis-
122 PREREQUISITES TO ADJUDICATION
wasJtha jnoiifgr of Mrs. Hoskins — that a few months after the
deed was executed and after IMrs. Oaks and Mrs. Hoskins had
taken possession of their new home, the land in question, hfi_
had married Mrs. Hoskins, without notice of any implied trust
In'Mrs. Oaks, and^^MdTbeen compelled to pay the note of $550
execiited^y_Jiis_wife. The plaintiff's counsel insisted, that, if
in fact Mrs. Oaks had bought the land and paid $700 of the
price and agreed to pay the balance, and made use of Mrs.
Hoskins' name in the deed and in the note, as a cover to keep
off creditors, then Mrs. Oaks had a trust estate, which was
subject to execution sale under the act of 1812. The defendant 's
counsel insisted, 1st, that supposing the facts to be as con-
tended for by the plaintiff's counsel and that Mrs. Oaks had an
implied trust, the purchaser of this trust under the act of 1812,
did not acquire the legal title, but his remedy was in equity.
2dly, That the act of 1812 did not take within its operation an
implied trust. 3dly, That the defendant, as husband, was a
purchaser for valuable consideration, and, if he married with-
out notice, he was not bound by the trust. 4thly, That, tak-
ing the facts to be as contended for by the plaintiff, yet if the
jury were satisfied that the defendant had married without
notice of the understanding that Mrs. Oaks was to pay the $550
note, and had been compelled to pay the amount himself, then
although Mrs. Oaks had a trust to the amount of $700, yet he also
had a trust to the amount paid by him, and the case would not
come within the operation of the act of 1812. Sthly, The de-
fendant's counsel insisted, as a matter of fact to the jury, that
the land was bought and paid for by Mrs. Hoskins for her own
use and out of her own money, and insisted that it made no
difference how she obtained the money, whether by loan from
Mrs. Oaks or from her other relations, or by secreting 'it out
of her husband's effects, provided it was not, at the time she
paid it, the money of Mrs. Oaks.
The court charged that to entitle the plaintiff to recover the
jury must be satisfied that Mrs. Oaks had bought the land,
and had, for the purpose of avoiding her creditors, resorted to
the plan of handing the $700 to Mrs. Hoskins, and getting her
to pay it over, and get the deed in her name and execute the
note, with the understanding that Mrs. Oaks was to pay the
amount of the note when due ; that if these were the facts, then,
although the legal title was vested in Mrs. Hoskins by the deed
of Sheeks, still she held the land in trust for Mrs. Oaks, and
FRAUDULENT CONVEYANCES 123
this was such a trust as was liable to execution ; and the plaintiff,
as purchaser under The sheriff's sale, by virtue of the act of
1812, acquired not only the trust estate of Mrs. Oaks, but also
the legal estate of Mrs. Hoskins, and was entitled to recover
in this action — that the position taken by the defendant's coun-
sel, that a husband, marrying without notice, was considered in
the light of a purchaser for a valuable consideration, discharged
of the trust, was not true ; for the husband, taking by operation
of law, stood in the place of the wife,_jand._took.n<L_greater,
estate, and was bound by the trust, whether he had notice or
not— -that so far as the $550 note was concerned, if it was a
part of the understanding that the note was to be given in the
name of Mrs. Hoskins, but Mrs. Oaks was to pay it, then,
though the defendant, by marrying Mrs. Hoskins, made himself
liable for the note, and had in fact been compelled to pay it;
still his paying it would not alter the case, but would only
place him in the situation of a security, who had paid money
for Mrs. Oaks, without thereby acquiring a lien upon the land
or any interest in the land. On the other hand, if the jury were
not satisfied that the money was the money of Mrs. Oaks, but
came to the conclusion that Mrs. Hoskins had procured it either
by loan from Mrs. Oaks or in any other way; or, supposing
the money was Mrs. Oaks', if the jury were not satisfied that
Mrs. Hoskins gave the note in her name with the understanding
that Mrs. Oaks was to pay it, then the defendant would be
entitled to a verdict ; for if Mrs. Hoskins gave the note expect-
ing to pay it herself, then the trust estate would be divided,
and Mrs. Hoskins would hold the land in trust for Mrs. Oaks
as to the $700, supposing that to have been her money, and in
trust for herself as to the amount of the note, and thus would
Be presented the case of a mixed trust, which does not come
within the operation of the act of 1812.
T^^[«;ewas^verdict^ for_th^^ a motion for a new trial
for error in the opinion of the court was discharged, and, judg-
ment being thereupon rendered for the plaintiff, the defendant
appealed.
RUFFIN, C. J, In the instructions to jthe^jurY, the inten-
tions of the parties and the true character of the transaction,
upon which the deed was made to Hoskins, were fairly sub-
mitted to them. It must, therefore, beassumed, "upon this ver-|
diet, that tEe'contraet of purchase was made by Oaks for hen
124 PREREQUISITES TO ADJUDICATION
own benefit, that the sum paid, $700, was her money, and that
she was to pay the residue of the purchase money, $550; and
that she did not give her own note as a security therefor, but
procured her daughter to give her note, with the understand-
ing that Oaks should pay it; and that this was done with the
view to conceal the interest of Oaks from her creditors and pre-
vent them from seeking satisfaction of their debts out of the
land. Wfi^e then to trea,t this as a strong case of bad faith,
in which clearly the daughter held upon a secret agreement and
in confidence for the mother. In such a case, it would be a
reproach to any system of jurisprudence, if it provided no
means of reaching the land or the interest of the mother in it,
for the payment of her debts. We doubt not but her interest
may be made liable for her debts; but the guestjxm is, whether
it^be so liable as to be the subject of sale under a fieri facias
on a judgment at law, and whether the purchaser at such a
sale gets the legal title ? Upon that question, after deliberation,
we have come to a conclusion differing from the opinion held
by_his Honor.
Before the act of 1812, which made trust property subject to
legal execution, such an interest as this certainly could not be
reached at law. It was the constant practice, both in England
and this country, for a purchaser to take his conveyance to a
trustee; and it was allowed, though such conveyance defeated
dower, and prevented the redress of creditors at law, and obliged
them to sue in a court of equity. The act of 1812 altered and
corrected that, in cases, in which a person is seized simply
and purely for the debtor, without any beneficial interest in the
party having the legal title or in any other person except the
debtor in execution. Brown v. Graves, 4 Hawks, 342 ; Gillis v,
McKay, 4 Dev. 172. The reason for thus confining the opera-
tion of the act is, that it divests the whole legal estate of the
trustee, and, therefore, can only extend to a case, in which the
trustee does not need that title to subserve the rights of himself
or third persons. The act embraces, therefore, only the case in
which the debtor in execution might call upon the trustee for a
conveyance of the legal estate, or, at the least, if there were sev-
eral equitable joint tenants for a conveyance of such part of
the legal estate, as would be commensurate with his equitable
right. The act in no case gives to the creditor of the cestui que
truest an interest or power over the estate, legal or equitable,
greater than that to which the cestwi que trust may be entitled.
FRAUDULENT CONVEYANCES "' 125
The purchaser holds the land exactly as the debtor held the
trust. The act does not, therefore, at all proceed on the idea of
a fraud in the creation of the trust; or provide that, by reason
thereof, the trustee shall be deprived of any interest in himself,
derived by the same conveyance. But it is founded on the fact
that the debtor, being entitled to the trust, is, in equity and in
substance, the owner of the land, and therefore, that it ought
to be liable to be sold for his debts. The interest of the debtor,
as cestui qus trust, is the subject of sale and the purchaser can
get no more. He therefore is to stand precisely in the shoes of
the debtor, except that the debtor would have been obliged to
apply to the chancellor to obtain the legal title; whereas the
purchaser gets that also by the sheriff's deed. The question^
then^is^jl^ether^jis between the debtor in execution and the
person having the legal title, the former could, in the state of
the dealings_between them, call for an immediate conveyance
from the latter? Now we are clearly of opinion, that the daugh'
ter would not have been compelled to convey to the mother,
without first being discharged from her note, given for a part
of the purchase money, or, after the money was paid, without
its being repaid. If Oaks had given her note and Hoskins had
executed it as her surety, the latter would have been entitled
to retain the legal title as a security in the nature of a mortgage.
This is the same case in substance. Hoskins gave her note for
Oaks' debt, and the latter agreed, as she ought, to pay it. But
she did not, and the former paid it ; and, being for the pur-
chase money of this very land, the title could not be taken from
her, without making her whole. As between these parties, that
cannot be denied. But it is contended, the bad faith towards
the mother's creditors is an ingredient in the case, which repels
alljelaim^ of the daughter upon the land^ as against the creditofs,
and gives them a higher right than the mother. Not, we think,
under this act of 1812. We have already endeavored to shew,
that the remedy given by it does not stand on the footing of
fraud. But another view will render this still clearer. If there
was an intention to defraud creditors, then it is a settled prin-
ciple, that equity will help neither party to such a contract;
and, consequently, the mother could not have had a decree
against the daughter for a conveyance, nor could the creditor
of the mother, that is to say, by way of insisting on such a trust
and asking its execution, since that would be to affirm and en-
force a fraudulent intent. The remedy of the creditor is founded
k
126 PREREQUISITES TO ADJUDICATION
0 [on a different principle, which is^ the .right in eg[uity to follow
[t^ funds of the^debtor. Dobson v. Erwin, 1 Dev. & Bat. 569.
When the estate was "once in the debtor and has been conveyed
by him in trust for himself, the redress of the creditor is plain
at law upon either of two grounds. He may sell the trust, and
that will, under the act of 1812, carry the legal estate; or he
may treat the conveyance as fraudulent and null ab initio under
the act of 13th Eliz. (R,ev. St., c. 50, § 1), and therefore as leav-
jing the legal title in the debtor. But this last is invoking an-
( other statute which is not applicable to a case like that before us ;
\ which is not of a conveyance by a debtor of land before owned
Iby her, but that of a purchase by the debtor and a conveyance
(to a trustee for her. That the statute of Eliz. does not apply
to the case of a purchase by the debtor is clear from the consid-
eration, that it operates entirely by making void the assurances
within its purview. In this case, that would leave the title in
Sheeks, which would not serve the plaintiff's purpose. As has
been already mentioned, however, before the statute 29th Charles
2nd, from which our act of 1812 is taken, purchases were daily
made in England in the name of trustees; and, though equity
found means of paying out of the estate the debts of the person,
who, in the view of that court, was the owner, yet the purchase
and CQpveyance to the trustee were never deemed within the
statute of Elizabeth, so as to subject the land to a legal judg-
^nt and execution. That was the cause of passing the acts to
operate at law on the trusts, qiia trusts. And they have never
been construed to give more to the creditor than the debtor
could equitably claim, nor to apply to a case in which the debtor
could not, immediately and unconditionally claim a conveyance
^"^ the legal estate. As Oaks could not, in this case, have done
that, but must have indemnified Hoskins or her husband for
the money paid as her surety, in part of the purchase money,
the case is not within the act of 1812, and the land was not
subject to be sold under execution.
■-■■ »
Per Curiam. Judgment reversed and venire de novo
awarded.'
5_See also Webster v. Folsom, Long, 35 Vt. 564. As an example
58 Me. 230; Cone v. Hamilton, 102 of statutory provision affecting the
Mass. 56; Mulford v. Peterson, 35 situation, see Consol. Laws of New
N. J. L. 127, 133 ; Garfield v. Hat- York, c. 50, § 94.
maker, 15 N. Y. 475; Dewey v.
FRAUDULENT CONVEYANCES 127
KIMMEL V. M 'RIGHT ^
2 Pa. St. 38 ^ ""^^^ ' '^^^
(Supreme Court of Pennsylvania, September Term, 1845) ^ , ^
^ .
Error to the Common Pleas of Westmoreland county. ' ' * J'
The plaintiff, as purchaser of George Kimmel's estate ^
sheriff's sale, bi:Qught_ejectinent againstjiim. It appeared from
the evideiice, that Obadiah, a natural son of George, claimed
the property under a conveyance from a stranger,, and that his
father lived in the house with him; but he was not named de-
fendant on the record.
To avoid the effect of this conveyance, plaintiff showed that
at the time of this purchase, which was subsequent to his judg-
ment, Obadiah was but fourteen or sixteen years old. That his
father made the bargain and handed him the money to pay thje
Crice. The defendant objected to evidence of a declaration by
George Kimmel, that *'he would buy land in Obadiah 's name."
The court told the jury the purchaser was entitled to recover,
if George Kimmel had any beneficial interest in the land; that
if he made the purchase at the time, and was indebted, a result-
ing^ trust would arise to him ; though, as a general rule, such a
trust would not arise, where the payment was not with consent
of the grantee. Or if the jury found the purchase was with
intent to defraud his creditors, they would be entitled to retain
it, under 13 Eliz., against Obadiah.
^ The tgurth point of defendant was, "That a man indebted is
J not prevented or prohibited by law from making a present of
/ money, if he has it, to his children, that it is no fraud to do
I so." "We answer that the law is the reverse of the statement
/in this proposition."
ROGERS, J. No exception can be taken to the general ch^ge,
nor to the answer to the points, except the fourth. The court
are made to say, that a man is prohibited from making a present
of .money to his children. As an abstract principle, nothing can
be more erroneous, for undoubtedly, a man may do as he pleases
with his own property. But the^court must have intended, as
appears very clearly from the general tenor of the charge, that
a man who is largely indebted in proportion to his means, can-;
not give his property to his children at the expense of his cred-
itors. And Ihis certainly is the law, a man must be just before
y ^yr .. r^<^ Cj._ ^-ph. 100
128 PREREQUISITES TO ADJUDICATION
he is generous. The title to the land passed from the several
grantors to Obadiah ; and as against his father, as it appears to
have been a gift, he might have held the land. But the father,
at the time of the several conveyances, was largely indebted;
and these conveyances to his son were devices to cheat and de-
y r fraud his creditors. As against them, by the statute of fraud-
, (^ulent conveyances, the title is utterly void.
\i^ S> We see no cause for complaint, admitting even the testimony
*» Sl/ of the declarations of Dr. Kimmel, that "now he would buy
H land, and that he would buy in Obadiah 's name." If he was
'^^ indebted at the time the declarations were made, it is pertinent
testimony; if he was not, it is evidence in the defendant's favor,
as it shows his honesty of purpose. In no point of view is he
injured, and the court would be badly employed in reversing
judgments for errors which work no mischief.
Judgment afl&rmed.^
'' ' (jK^ aJ- j^ NORCUTT v. DODD
pj^ /t^High Court of Chancery. January 29, 1841)
Yy^ This suit was instituted by the assignee, under the insolvent
^j vjL debtor's act, of Robert Torre, one of the defendants, for the
O^ Jk^ purpose of setting aside a voluntary assignment of an annuity
\ ^ to which he was entitled under his marriage settlement.
^ / By the settlement, which bore date the 12th of April, 1832,
, \r^ and was made between Elizabeth Dodd, the intended wife of the
j-f\^ first part; Robert Torre of the second part; William Dodd, the
/,t^^ father of Elizabeth Dodd, of the third part; and Henry Le
Ij ^ Keux and another person, as trustees, of the fourth part, Wil-
^ -If^liam Dodd covenanted with Robert Torre, that in case the mar-
J^y^ ♦'riage should take effect, he, William Dodd, would, during the
•^ l^ joint lives of himself and his daughter, pa2LJto^Bfifcert-3!orr£' ^^
c/*^ his assigns, the yearly sum of £50, as therein mentioned.
The marriage was solemnized on the 13th of April, 1832.
)u * , On the 17th of November, 1836, the jilaiotjff recovered judg-
/guBnt against Robert Torre, in an action of debt, for the sum of
£70 and costs ; but at the request of RoberU'Qrre^ who stated
6— Pennington v. Clifton, 11 Ind. 194 111. 638, 62 N. E. 794; Bloom-
162; Hawkins v. Cramer, 63 Tex. ingdale v. Stein, 42 OMo State 168.
99 aoc. See aJso Smith ▼. Patton,
FRAUDULENT CONVEYANCES 129
that he expected to receive some money on the 19th of Novem-
ber, which would enable him to satisfy the plaintiff's debt,^xe-
cuid^n_wa^elayed_ujQj^^^ On the 19th of Noyemherr
Robert Torre having again made defaiTlFIirpayment, the plain-
tiff sued out a writ of execution; but the sheriff's officer, on
coming to Robert Torre's house for the purpose of executing
the writ, found another officer in possession of his goods, under
a similar writ, at the suit of one Mottram.^ to whom Robert
Torre had executed a warrant of attorney the day before, to
enter up judgment against him for the sum of £72 10s. On the
22nd of November, a third writ was lodged with the officer so
in possession of the goods, at the suit of one Perring, for £70.
The officer continued in possession until the 2d of January,
when the goods were sold by auction, and the net proceeds of
the sale were not suflfieient for the satisfaction of Mottram's
debt.
Qn the 22d of December, 1836, Robert Torre executed a deed, ^^
by which he assigned the annuity to Henry Le Keux^^m^ trust f^^
for the separate use ol his_wife ; and in the month of May, 1837, ^
he surrendered himself to prison, and was subsecjuently dis-
charged under the insolvent debtors' act, after six months' con-
finement ; and the plaintiff was duly chosen the assignee of his
estate and effects.
The^ill was filed against William Dodd, Heiirx Le Keux^ and
Robert Torre and Elizabeth _his^ wife; and it prayed that the
assignment might be declared fraudulent^ and void against the_
plaintiff and the other creditor^ of the^ iMolvent ; that an ac-
count might be taken of what was due to the plaintiff for the
arrears of the annuity, and that William Dodd and Henry Le
Keux might be decreed to pay to the plaintiff what should be
found due from them respectively on account thereof, together
with the costs of the suit.
The cause now came on to be heard before the Lord Chan-
cellor.
THE LORD CHANCELLOR [Cottenham]. This being an
assignment of a chose in action, and the debtor being still living,
the transaction is not fraudulent under the statute of Eliz^
alone; but under that statute, taken in connection with the
insolvent debtors' act I am of opinion that it is. The difficulty
which arose upon the statute of Eliz., with respect to voluntary
assignments of choses in action, was, that, during the lifetime
H. & A. Bankruptcy — 9
130 PREREQUISITES TO ADJUDICATION
of the debtor, creditors could not be said to be prejudiced by
them, inasmuch as that species of property was not subject to
be taken in execution; but_aiterjiis death, it was otherwise, be-
cause then the creditors might reach all his personal property
of whatever KndT and the same reason applies where the debtor
has brought himself within the operation of the insolvent
debtors' acts; because, under those acts, all his property becomes
^s^plicable to the payment of his debts. In the present case,
however, there is no conclusive evidence that the debtor was
indebted to the extent of insolvency at the time of the assign-
ment, though the fact of their being three executions in his
L house at the time makes it highly probable. As to that, there-
fore, there must^ be an inquiry^ * * *
W*^ ^^>*-^'^<^ BRACKETT v. WATKINS
"^ <-v ^ 21 Wend. 68
L ^ '"\ ^ '"Supreme Court of New York. January, 1839)
. "^ Ijrror from Onondaga Common Pleas. Brackett sued Wat-
kins in an action of replevm, for taking 30 runs of woollen
yam. The plaintiff proved that he was a householder, and that
in March, 1837, the yarn was taken from, his possession by
virtue of an execution in favor of the defendant, and by his
direction. In March, 1836, the plaintiff purchased 300 sheep,
which he sheared, and sold the whole of the wool except one
large fleece of about 4 pounds. In the summer or autumn of
the same year he sold the sheep he purchased in March. On
this evidence the plaintiff rested. The defendant moved for a
nonsuit, on the following grounds: 1. That it was not shown
that the yarn in question was made from wool sheared from
the plaintiff's own sheep; 2. That there was no evidence that
the plaintiff did not own a large flock of sheep through 1836
and 1837 ; and 3, That the statute does not apply to a case where
a man has a large flock of sheep and sells all the wool except
ten fleeces. The court granted the nonsuit. The plaintiff ex-
cepted and brought error.
By the Court, COWEN, J. The first of the grounds taken
by the defendant's counsel in the court below is now given up
7 — See Edmunds v. Edmunds
[1904], Prob. & Div. 362.
FRAUDULENT CONVEYANCES 131
as erroneous, on the authority of Hall v. Penney, 11 Wendell,
44, By this case the words of the statute were equitably ex-
tended beyond their literal import, and made to cover cloth,
yam, etc., whether it comes from the sheep of the owner or not.
Nor can I perceive any force in the other points, when taken
in the abstract. It was pretty evident, that the plaintiff had
reduced himself to the 30 runs, and had no more. Being a
householder, the statute conferred upon this the same protec-
tion, whether the plaintiff had before owned but 10 or 1,000
sheep. I say in the abstract. Very likely the court below were"
disgusted with the strong appearance of a fraud upon the stat-
ute, by a man disposing of, or covering ug^all^ his^ther j)ro£-
erty, and turning wKat was intended as a shield ^^pqvertyjnto/
an instrument of fraucH It is quite common for dishonest men
todo^o. But I think the court below have mistaken the remedy.
If_therejie an appearance from circumstances that the plaintiff
has reduced himself to exempt property, in order to defraud
his creditors, that question should be submitted to the jury,
under proper directions from the court. Their sagacity would
be, in general, quite a match for the case. On their being satis-
fied that the plaintiff had placed himself on his exempt property
in order to defraud his creditors, as in the instance below, by
a sale of his sheep and wool, they may clearly place him beyond
the reach of the statute, by sustaining the levy. His sales or
^other arrangements would come within the words of the statute,
l^~Elizabet}i, being to delay, hinder 6r"de?raud creditors; or,
if not, they would be void at the common law. The rule, then,
is this: prima facie the fleeces, yarn, cloth, and other things
limited to a certain amount by the statute, 2 R. S. 290, par. 22,
are protected. But if the jury believe that it was brought down
to the compass of exemption, with intent to defraud creditors^
they ought to find for the creditor. Most commonly, the other
goods being mortgaged or sold, remain still in the debtor's pos-
session, when either they may be seized, or those which are ap-
parently exempt, at the election of the creditor. In general,
the mortgaged or sold goods are seized. But the more artfuO
debtorjwill fix a more secure cover for his property, by chang-/
ing it into money, or something as little tangible to an execu-
tipn as inay be^when the property claimed as exempt must be
resorted to, and the question of fraud litigated upon that. On
such obvious fraud as possession after a mortgage or sale, the
court may doubtless nonsuit, or direct the jury to find the covin,
i^r
132 PREREQUISITES TO ADJUDICATION
/sincejthe statute has declared the possession to be conclusive
) evidence where it_ is not satisfactorily explained. Not so^f
more equivocal instances. On these the question is, in general,
for the jury. We think it should have been put to them in the
case before us.
The judgment must, therefore, be reversed, and a venire de
nova go from the court below, the costs to abide the event.^
/L /t^*''^"*^^^ JOHNSON V. SILSBEE
rtP^ ' 49 N. H. 543
(Supreme Judicial Court of New Hampshire. June, 1870)
This was assumpsit brought by Johnson & Fisher against R.
W. Silsbee, and one W. F. Howard, trustee. The only questions
raised related to the liability of the trustee. The depositions
of the trustee and others were submitted to the court from
which the following facts appear. The trustee bought of defend-
ant and of his daughter, J. Arlette Silsbee asewing rnachine,
for which he agreed to pay the sum of $65.00, no part of which
had been paid. They both spoke of the machine as belonging
to the daughter, and the trustee understood at the time that it
was hers, though her father assisted her in the sale. This ma-
chine was purchased by the said J. Arlette of her uncle in
Buffalo, N. Y., and she had paid $20.00 cash towards it, and was
to have a commission of $5.00 or more on it if she sold it, so
that she only owed about $40.00 for it when she sold it. The
said J. Arlette Silsbee was and is a minor daughter of defend-
ant, who lives at home with him and acts as housekeeper for her
father. He has always boarded and clothed her as other fathers
generally board and clothe their daughters, and she has always
remained a member of his family and been supported there.
She is not emancipated and her father has never given her her
time or earnings by any express gift or contract. But she has,
with his consent, worked at sewing for the neighbors and earned
small sums of money, which have been paid to her, and her
father has never claimed them or undertaken to control his
8— See Wilcox v. Hawley, 31 N. Hetrick v. Campbell, 14 Pa. St.
Y. 648; Bishop v. Johnson, 15 263; Eose v. Sharpless, 33 Gratt.
N. Y. St. Eep. 579; O'Donnell v. 153; White v. Givens, 29 La. Ann.
Segar, 25 Mich. 367; Comstock v. 571.
Bechtel, 63 Wis. 656, 24 N. W. 465 ;
FRAUDULENT CONVEYANCES 133
daughter in the manner of spending the same, but she has ex-
pended a portion of such earnings in purchasing clothing for
herself, and the $20.00 paid towards this sewing machine was
earned in that way, and paid by the daughter without any direc-
tion from the father or any objection on his part. Upon these,
facts the plaintiffs claim to charge the trustee for the value of.
the.^Hiachine ($65.00), but if they cannot hold that amount then
they claim to hold him for the value of the machine, less the
amount remaining due for the same; while the defendant and
his daughter claim that the trustee cannot be charged for any-
thing.
SMITH, J. There is no evidence that the minor bought the
machine for, or on behalf of, her father.
Apart from the fact that the twenty dollars paid came from
her earnings, there could be no doubt that the machine was the
property of the minor. So far as it was bought on creditTTt was
on her credit^ not on her father's. Although a f atHer is entitled
to the earnings of his child as a recompense for his liability to
support the child, he has no power over his child's estate except
as his trustee or guardian; 1 Blackstone's Com. 453. ''He has
no title to the property of the child, nor is the capacity or right
of the latter to take property or receive money by grant, gift
or otherwise, except as a compensation for services, in any de-
gree qualified or limited during minority. Whatever therefore
an infant acquires which does not come to him as a compensa-
tion for services rendered, belongs absolutely to him, and his
father cannot interpose any claim to it;" see Bigelow, C. J., in
Banks v. Conant, 14 Allen, 497, p. 498 ; Wendell v. Pierce, 13
N. H. 502. If therefore the father had any interest in this
machine, it must have been solely by reason of the fact that it
was partly paid for out of the earnings of his daughter.
In the present case, upon the evidence in the depositions, we
find, as matter of fact, that, when the daughter began to do the
work by which she earned the twenty dollars, the father con-
sented, in good faith that the wages to be earned by that labor,
should belong to the daughter.
The father did not "put his consent into words;" but his
acts (as detailed in the depositions) relative to the daughter's
employment at various times in sewing, and as to her disposi-
tion of the sums which had thus been earned, justify the infer-
ence that he so consented on this occasion, and thus express
134 PREREQUISITES TO ADJUDICATION
his consent as effectually "as words would have done;" see 5
(Am. Law Review, 11, 12. Can this relinquishment of the father's
vright to the daughter's future earnings be avoided by his exist-
png creditors as fraudulent in law?
A debtor cannot give away his attachable property, to the
prejudice of existing creditors. But his time and talents are
at his own disposal. If the debtor, instead of laboring to earn
wages which his creditors can attach by the trustee process,
chooses to remain idle, or "to give away his own services by
working gratuitously for another," his creditors have no legal
remedy. They "cannot compel him to work and earn wages
for their benefit. ' ' The laws of this state do not authorize ' ' the
sale of the person of a debtor for the satisfaction of his debts."
Abbey v. Deyo, 44 N. Y. 353, pp. 346-9; Bush v. Vought, 55
Penn. State, 437, p. 441; see also Williams v. Chambers, 10
Queen's Bench, 337; Chippendale v. Tomlinson, 4 Douglas, 318.
If the father can give away his own labor, by working gratui-
tously for another, why may he not also give away his right to
the future labor of his child? The creditors of the father can-
not attach, or sell upon execution, the child's capacity to labor.
Practically, the father's right to the child's prospective earn-
ings is worthless unless the father and the child both choose to
make it valuable. There is no legal process, by which the cred-
itors can compel the father, to make the son labor for their
benefit. No law requires the father "to work his son or his
daughter as he would work a horse or a slave for the benefit of
his creditors." Black, J., in McCloskey v. Cyphert, 27 Penn.
State, 220, p. 225.
If the father can give to a third person the right to his
daughter's future services, can there be any valid objection to
his giving this right to the daughter herself? We are not to
pass upon this question without giving some consideration to
the interests of the daughter. She is not a chattel, but is en-
titled to the care and protection of the law, just as much as her
father's creditors. See Parker, C. J., in Whiting v. Earle, 3
Pick. 201, p. 202; Isham, J., in Bray v. Wheeler, 29 Vt. 514,
pp. 516-7. If they can take her future earnings against her
will, and her father's will, she is, in effect reduced "to a con-
dition of qualified slavery." The law does not contemplate the
subjection of the child to any person not standing in loco par-
entis. The consequences to the child of denying the father's
power to relinquish his right to the child's future earnings,
FRAUDULENT CONVEYANCES 136
would often prove extremely pernicious. If a son anticipates
that his wages will be applied, against his father's will, to pay
his father's debts, it is hardly probable that he will labor with
much vigor, or earn anything above his support. The creditors
will generally gain nothing, but the son may be ruined by the
absence, at the most important time of his life, of some of the
strongest incentives to the formation of industrious habits. We
are not now considering the validity of a gift by the father of
a claim for wages already due for his own past services, or of
a gift by the father of his claim for wages already earned by
labor which his minor child has performed without any previ-
ous understanding that the avails should go to the child's own
use. Nor is this a case where the arrangement between the
father and the child was merely colorable, designed by the par-
ties to cover the earnings of the daughter for the father's use
and benefit, and in fraud of his creditors. See Gragg v. Martin,
12 Allen, 498. In the present case, the father, in good faith,
consented that his minor daughter should receive to her own
use, her future earnings in a certain employment. His cred-
itors cannot interpose to take from the daughter wages earned
by her in that employment subsequently to the father's relin-
quishment of his right. See Wolcott v. Rickey, 22 Iowa, 171 ;
McCloskey v. Cyphert, 27 Penn. 220 ; Lyon v. Boiling, 14 Ala.
753; Bobo V. Bryson, 21 Ark. 387; Lord v. Poor, 10 Shepley,
569; Bray v. Wheeler, 29 Vt. 514; Manchester v. Smith, 12
Pick. 113 ; Whiting v. Earle, 3 Pick. 201 ; Jenney v. Alden, 12
Mass. 375.
It seems to have been asserted, that a horm fide relinquish-
ment by a husband to his wife, of his marital right to the wife 's
future earnings, is invalid as against the husband's creditors.
See 2 Story's Equity Jur. § 1387. If the reason of such a doc-
trine is found in the common law disability of a husband to
contract with his wife, it can have no application to the present
case. If the doctrine can be sustained at all, it must be as an
exception, growing out of the peculiar stains of the parties;
and not as a rule based upon general principles, applicable
alike to husband and wife, and parent and child.
The right of the daughter to hold the twenty dollars against.]
her father's creditors, does not depend on the question whether 1
she had [been] fully emancipated, or had ceased to receive an^J
support from her fatEer. If she performed the labor, by which
that sum was earned, upon an understanding with her father
136 PREREQUISITES TO ADJUDICATION
that she should receive the avails of that labor, that under-
standing cannot be treated as a nullity merely, because it did
not extend to all other labor which the daughter might perform
during minority. A partial relinquishment of the parental
right avails pro tmito: see Tillotson v. McCriUis, 11 Vt. 477,
p. 480. Notwithstanding the decision in Godfrey v. Hays, 6
Ala. 501,- we think that the fact that the daughter remained a
member of her father's family is material only as evidence to
be weighed in determining whether the alleged relinquishment
by the father was an act done in good faith, or merely colorable.
In many instances where minors are allowed to control their
own earnings, it may reasonably be expected, that they will
support themselves out of those earnings, and thus diminish
the claims on their parents. The probability of such a result
has had some weight in inducing courts to deny the right of
creditors to take the fruits of the minor's labor. But we do not
ilinderstand that thejuse which_the minor makes of hjs^arnings
lis the test of his right to those earnings j nor that the contin-
luing liability of the father to support the minor is fatal to the
Immor^ claimjto^(M]trol his own^amings. If it were otherwise,
no emancipation by the father could ever be of any validity
against his creditors; for it is clear that a father cannot, by
his own act, "cast his son upon the public, and relieve himself
from the obligation of maintenance" imposed upon him by the
pauper laws (see Gen. Stat. c. 74, §8). The usual clause in
"freedom notices," in which the father declares that he will
/ / / P^y none of the son 's debts, can hardly have the full effect
' which many fathers may imagine; see Bell, C. J., in Hall v.
Hall, 44 N. H. 293, pp. 295, 296 ; 1 Parsons on Contracts, 5th
ed., 310, 311. The continued receipt b,y_the_minor of support
from his father is coropetent evidence upon the question,
whether the father's alleged relinquishment of his nght to any
^portion of the mmor's future earnings was a reality j>r a jgaere
"sEfam; and it is not difficult to imagine eases where such evi-
dence would carry decisive conviction of the colorable imturje,
of the alleged_ relinquishment. But proof of this fact does not
give rise to a conclusive legal presumption of fraud. In the
present case, it seems not improbable that the daughter's serv-
ices as her father's housekeeper fully compensated him for her
support.
We find that his consent to her receipt of the money earned
by sewing was given in good faith, and was not designed to
FRAUDULENT CONVEYANCES 137
cover up the daughter 'sj^arniugs for the father's benefit in
fraud of his creditors. ^Tt follows that the,^laintiffs^4vtiough
assumed to ^^ existing crediJoTs of the father, had no claim on
the twenty dollars; and of course have no claim upon the prop-;
erty purchased therewijji^
If we had held that the twenty dollars should be regarded as
the father's money, it might have been necessary to inquire
whether that sum was paid doAvn at the time of purchase, or
whether the machine was purchased wholly upon the daugh-
ter's credit and the sum of twenty dollars was afterwards ap-
plied by the daughter in part payment of her debt; see Adams
on Equity, 143, 144; 1 Leading Cases in Equity, 3 Am. ed. 275;
Francestown v. Deering, 41 N. H. 438; 2 Story on E(iuity
Jurisp., §§1258-9; Taylor v. Plumer, 3 Maule & Selwyn, 562;
2 Kent's Com. 623.
Caswell V. Hill. 47 N. H. 407, is not directly in point. There
the court found, as a matter of fact, that the transaction rela-
tive to the musical instrument was, really, "nothing more nor
less than a gift of this instrument" by a step-father to his step-
daughter; and the gift was of course held invalid as against
his existing creditors.
Trij^tee discharged.^
^^ENTRAL NAT. BANK v. HUME
128 U. S. 195, 32 L. ed. 370, 9 Sup. Ct. 41
ted States Supreme Court. November 12, 1888)
23d of April, 1872, in consideration of an annual pre-
"^^ri.h^ium of $230.89, the Life Insurance Company of Virginia issued
jt' Petersburgh, in that commonwealth, a policy of insurance on
the life of Thomas L. Hume, of Washington, D. C,, for the term
of his natural life, in the sum of $10,000, for the sole use and
benefit^ .his wife, Annie Graham Hume, and his children, pay-
ment to be made to them, their heirs, executors, or assigns, at
Petersburgh, Va. The charter of the company provided as fol-
lows: "Any policy of insurance issued by the Life Insurance
Company of Virginia on the life of any person, expressed to be
for the benefit of any married woman, whether the same be
9—Cf. Tuc.ky v. Lovell, 8 Idaho,
731, 71 Pac. 122 ; Dclaney v. Green,
4 Harr. (Del.) 285.
■^r^
138 PREREQUISITES TO ADJUDICATION
yfp y- effected originally by herself or her husband, or by any other
^Wfty person, or whether the premiums thereafter be paid by herself
or her husband or any other person as aforesaid, shall inure for
her sole and separate use and benefit, and that of her or her hus-
band's children, if any, as may be expressed in said policy, and
shall be held by her free from the control or claim of her hus-
band or his creditors, or of the person effecting the same and
<^is creditors." (§7.) The application for this policy was made
on behalf of the wife and children by Thomas L, Hume, who
signed the same for them. The premium of $230.89 was reduced
by annual dividends of $34.71 to'llSNSllS, which sum wa§_rfig«
ularly paid on the 23d of April, 1872, and each year thereafter,
up to and including the 23d of April, 1881. On the 28th of
-^ March, 1880, the Hartford Life & Annuity Company_qfJ?art-
ford. Conn., issued five certificates of insurance upon the life of
ffJC^ Thomas L. Hume, of $1,000 each, payable at Hartford, to his
<^wife, Annie G. Hume, if living, but otherwise to his legal repre-
sentatives. Upon each of these certificates a premium of $10
was paid upon their issuance, amounting in all to $50 ; and there-
after certain other sums, amounting at the time of the death of
Hume to $41.25. On the 17th of February, 1881, the Maryland
-JB ^Jfi|e^ Insurance Company of Baltimore issued, at Baltimore, a
policy of insurance upon the life of Thomas I>. Hume, in the
^5j-^ sum of $10,000, for the term of his natural life, payable in the
'nj city of Baltimore to "the said insured, Annie G. Hume, for her
sole use, her executors, administrators, or assigns;" the said
policy being issued, as it recites on its face, in consideration of
the sum of $337.20 to them duly paid by said Annie G. Hume,
and of an annual premium of the same amount to be paid each
I year during the continuance of the policy. The application for
i thia4iolic5^was_signed^*_^ Annie G,_Hume, by Thomas^L.J3ume, "
as is a recc^nized usage in such applications, and in accordance
with instructions to that effect printed upon the policy.
/OJt aJL« '^^^ Qharter_of_the Jfer^landJLifeJn^^^^ pro-
^ vides as follows : "§ 17. That it shall be lawful for any married
woman, by herself, or in her name or in the name of any third
person, with his consent, as her trustee, to cause to be insured
in said company, for her sole use, the life of her husband,
for any definite period, or for the term of his natural life ; and,
in case of her surviving her husband, the sum or net amount of
the insurance becoming due and payable by the terms of the
insurance shall be payable to her to and for her own use, free
FRAUDULENT CONVEYANCES 139
from the claims of the representatives of her husband; or of
any of his creditors. In case of the death of the wife before the
decease of the husband, the amount of the insurance may be
made payable, after the death of the husband, to her children,
or, if under age, to their guardian, for their use. In the event
of there being no children, she may have power to devise, and,
if dying intestate, then to go [to] the next of kin." The direc-
tions printed on the margin of the policy called especial atten-
tion to the provisions of the charter upon this subject, an extract
from which was printed on the fourth page of the application.
The amount of premium paid on this policy was $242.26, a loan
having been deducted from the full premium of $337.20.
On the 13th of June, 1881, the Connecticut MutuaL-Iiife-Iib-
surance Company of Hartford, in consideration of an annual
premium of $350.30, to be paid before the day of its date, issued s*^
a policy of insurance upon the life of Thomas L. Hume, in the
sum of $10,000, for the term of his natural life, payable at Hart-
ford to Annie G. Hume and her children by him, or their legal
representatives. The application for this policy was signed
'* Annie G. Hume, by Thomas L. Hume." It was expressly pro-
vided, as part of the contract, that the policy was issued and
delivered at Hartford, in the state of Connecticut, and was "to
be in all respects construed and determined in accordance with
the laws of that state." The "statute of Connecticut, respect-
ing policies of insurance issued for the benefit of married
women," was printed upon the policy under that heading, and
is as follows: "Any policy of life insurance expressed to be^
for the benefit of a married woman, or assigned to her or inl
trust for her, shall inure to her separate use, or, in case of her
decease before payment, to the use of her children or of her hus-
band's children, as may be provided in such policy: provided,
that JLthe annuaL:premium^n_sucJi.4iolicy shall _£seeed- three
hundred dollars, the amount of such pxopss^jwjth interest, shall
inure to the benefit^^FtEe "creditors of the person paying the
premiums ; but if she~shall dielbefore the person insured, leav-
ing no children of herself or husband, the policy shall become
the property of the person who has paid the premiums, unless
otherwise provided in such policy;" and this extract from the
statute was printed upon the policy, and attention directed
thereto. From the $350.30 premium the sum of $105 was de-
ducted, to be charged against the policy in accordance with its
terms, with interest, and $245.30 was therefore the sum paid.
140 PREREQUISITES TO ADJUDICATION
T^ American Life Insurance & Trust Company of Philadelphia
,_^had also issued a policy in the sum of $5,000on the life of Hume,
payable to himself or his personal representatives, and this was
collected by his administrators.
Thomas L. Hume died at Washington on the 23d of October,
1881, inso,ls;ejtJ:» jlis widow^ :^jjli^ G^Hume, and six minor chjl-
^v^^^Bz-S^iJ^^^i^i^^^'SLWm- November 2d, 1881, the Central^ National
-^Aj^W Bank of Washington, as the holder of certain promissory notes
of Thomas L. Hume, amounting to several thousand dollars, filed
a bill in the Supreme Court of the District of Columbia against
Mrs. Hume and the Maryland Life Insurance Company, the case
being numbered 7,906, alleging that the policy issued by the
latterjwas_procured while Hume was jnsolvent; that Hume paid
the premium of $242.26 without complaihant 's knowledge or
consent, and for the purpose of hindering, delaying, and de-
frauding the complainant and his other creditors; and praying
for a restraining order on the insurance company from paying
to, and Mrs. Hume from receiving, either for herself or children,
I the amount due pending the suit, and "that the amount of the
said insurance policy may be decreed to be assets of said Thomas
L. Hume applicable to the payment of debts owing by him at
his death," etc. The temporary injunction was granted. On
the 12th of November the insura^e cpm^any_filed its answer to
the effect _that_llrs. -Hume- obtained the insurance, in. JieiL.^wh
nanie]_and was entitled under the^policy to the amounl^ereof,
rsfnd setting up and relying upon the seventeenth section of its
charter, quoted above. Mrs. Hume answered, November 16th,
i declaring that she applied for and procured the policy in ques-
£ ^ \ tion, and that it was not procured with fraudulent intent ; that
"^^"^ the estate of her father, A. H. Pickrell, who died in 1879, was
the largest creditor of Hume's estate; that she is her father's
jresiduary legatee; that the amount of the policy was intended,
[not only to provide for her, but also to secure her against loss ;
that her mothtef-Md^furnishM--Hjime wjth about a thousand
ddlars annually, to be used for her best interestTanHThat oFTiis
wife anj~cliildren ; and that the premium paid on the policy in
question, and those paid on other policies, was and were paid
out of money belonging to her father's estate, or out of the
I money of her mother, applied as directed and requested by the
^tter. • * *
The evidence tends to show that Hume's financial condition,
as early as 1874, was such that, if called upon to respond on the
.^
FRAUDULENT CONVEYANCES 141
instant, he could not have met his liabilities, and that this con-
dition grew gradually worse, until it culminated in irretrievable
ruin, in the fall of 1881; but it also indicates that for several
years, and up to October 21st, 1881, two days before his death,
he was a partner in a going concern apparently of capital and
credit ; that he had a considerable amount of real estate, though
most of it was heavily incumbered; that he was an active busi-
ness man, not personally extravagant ; and that he was, for two
years prior to October, in receipt of moneys from his wife's
mother, who had an income from her separate property. He
seems to have received from Mrs. Pickrell, or the estate of Pick-
rell, his wife's father, of which Mrs. Hume was the residuary
legatee, over $6,000 in 1879, over $3,000 in 1880, and over $1,700
in 1881. Mrs. Pickrell's fixed income was $1,000 a year from
rents of her own property, which, after the death of her hus-
band in May, 1879, was regularly paid over to Mr. Hume. She
testifies that she told Hume that "he could use all that I [she]
had for his own and his family's benefit, and that he could use
it for anything he thought best ; ' ' that she had out of it herselfi
from $200 to $250 a year from the death of Pickrell, in May,)
1879, to that of Hume, in October, 1881 ; and that before his J
death Mr. Hume informed his wife and herself that he had in-
sured his life for Mrs. Hume's benefit, but did not state where
the premium money came from. Blackford, agent for the Mary-
land company^estified, under objection, that Hume told hiixf*
in February, 1881, that certain means had- Jjeen_placedJs_.hial
hands, to be invested for his wife and^ ehildrgo^jind he had con-
cluded to take $10,000 in Blackford's agency, and should, some
months later, take $10,000 in the Connecticut Mutual. He ac
cordingly took the $10,000 in the Maryland, and subsequently,
during the summer, informed Blackford that he had obtained
the insurance in the Connecticut Mutual. Evidence was also
adduced that Mr. Hume was largely indebted to Pickrell 's estate,
by reason of indorsements of his paper by Pickrell, and the
use by him in raising money of securities belonging to the latter,
and that said estate is involved in litigation, and its ultimate
value problematical. The causes were ordered to be heard in
the first instance at a general term of the Supreme Court of the
District of Columbia ; which court, after argument, on the 5th
day of January, 1885, decreed that the administrators should
recover all sums paid by Thomas L. Hume as premiums on all
said policies, including those on the Virginia policy from 1874;
142 PREREQUISITES TO ADJUDICATION
and that, after deducting said premiums, the residue of the
money paid into court (being that received from the Mary-
land and the Connecticut Mutual) be paid to Mrs. Hume in-
dividually, or as guardian for herself and children; and that
the Hartford Life & Annuity Company pay over to her the
amount due on the certificates issued by it. From this decree
the said Central National Bank, Benjamin U. Keyser, the
Farmers' & Mechanics' National Bank of Georgetown, George
"W. Cochran, and the administrators, as well as Mrs. Hume,
appealed to this court, and the cause came on to be heard here
upon these cross-appeals.
Mr. Chief Justice FULLER, after stating the case, delivered
the opinion of the court.
No appeal was prosecuted from the decree of January 4,
.1883, directing the amount due upon the policy issued by the
Life Insurance Company of Virginia to be paid over to Mrs.
Hume for her own benefit and as guardian of her children,
nor is any error now assigned to the action of the court in that
regard. Indeed, it is conceded by counsel for the complainants
[that this contract was perfectly valid as against the world, but
it is insisted that, assuming the proof to establish the insolvency
/of IJum_e in 1874 and thenceforward, th^_gremiuW^£ai3Ij5^jt^
and_.the subsequent years on this policy belonged jn equity^ to
[the creditors, and that they were entitled to a decree therefor,
as weilas~for^ the amount of the Maryland and Connecticut
policies, and the premiums paid thereon. It is not denied that
the contract of the Maryland Insurance Company was directly
between that company and Mrs. Hume, and this is, in our judg-
ment, true of that of the Connecticut Mutual, while the Hart-
ford company's certificates were payable to her, if living.
Mr. Hume having been ^nsolvpnt at the time the insurance was
effected, and having paid thes^remiums himself, it is argued
'"that these policies were within the provisions of 13 Eliz^Q.^,
f and inure to the benefit of his creditors as equivalent to trans-
<fers of property with intent to hinder, delay, and defraud. The
object of the statute of Elizabeth was to prevent debtors from
dealing with their property in any way to the prejudice of their
creditors; but dealing with that which creditors, irrespective of
such dealing, could not have touched, is within neither the
letter nor the spirit of the statute. In the view of the law,
credit is extended in reliance upon the evidence of the ability
FRAUDULENT CONVEYANCES 143
of the debtor to pay, and in confidence that his possessions will
not be diminished to the prejudice of those who trust him.
This reliance is disappointed, and this confidence abused, if
he divests himself of his property by giving it away after he
has obtained credit. And where a person has taken out policies
of insurance upon his life for the benefit of his estate, it has
been frequently held that, as against creditors, his assignment,
when insolvent, of such policies, to or for the benefit of wife
and children, or either, constitutes a fraudulent transfer of
assets within the statute ; and this, even though the debtor may
have had no deliberate intention of depriving his creditors of
a fund to which they were entitled, because his act has in
point of fact withdrawn such a fund from them, and dealt with
it by way of bounty. Freeman v. Pope, L. R. 9 Eq. 206, L. R.
5 Ch. 538. The rule stands upon precisely the same ground
as any other disposition of his property by the debtor. The_
defect of the disposition is that it removes the property of the
debtor out of the reach of his creditors. Cornish v. Clark, L. R.
14 Eq. 184, 189. But the rule applies only to that which the
debtor could have made available for payment of his debts. For
instance, the exercise of a general power of appointment might be
fraudulent and void under the statute, but not the exercise
of a limited or exclusive power; because, in the latter case, the
debtor never had any interest in the property himself which
could have been available to a creditor, or by which he could
have obtained credit. May, Fraud. Conv. 33. It is true that
creditors can obtain relief in respect to a fraudulent convey-
ance where the grantor cannot, but that relief only restores •
the subjection of the debtor's property to the payment of his
indebtedness as it existed prior to the conveyance.
A person has an insurable interest in his own life for the\^
benefit of his estate. The contract affords no comppusfltioTi fx) Y^-^^-t^^-^^
him^ but to his representatives. So the creditoclias an insurable
interest in the del>tor!s life, and can protect himself accord-
in^yTlFTie so chooses. Marine and fire insurance is considered
as strictly an indemnity; but while this is not so as to life/
insurance, which is simply a contract, so far as the company
is concerned, to pay a certain sum of money upon the occurrence
of an event which is sure at some time to happen, in considera-
tion of the payment of the premiums as stipulated, neverthe-
less the contract is also a contract of indemnity. If the creditor
insures the life of his debtor, he is thereby indemnified against
^U-Cc-
144 PREREQUISITES TO ADJUDICATION
the loss of his debt by the death of the debtor before payment,
yet if the creditor keeps up the premiums, and his debt is paid
before the debtor's death, he may still recover upon the con-
tract, which was valid when made, and which the insurance
company is bound to pay according to its terms; but if the
I debtor obtains the insurance on the insurable interest of the
creditor, and pays the premiums himself, and the debt is ex-
tinguished before the insurance falls in, then the proceeds would
go to the estate of the debtor. Knox v. Turner, L. R. 9 Eq. 155.
The wife and children have an insurable interest in the life of
the husband and father, and if insurance thereon be taken out
by him, and he pays the premiums and survives them, it might
be reasonably claimed, in the absence of a statutory provision
to the contrary, that the policy would inure to his estate. In
Insurance Co. v. Palmer, 42 Conn. 60, the wife insured the
life of the husband, the amount insured to be payable to her
if she survived him ; if not, to her children. The wife and one
son died prior to the husband, the son leaving a son surviving.
The court held that, under the provisions of the statute of that
State, the policy being made payable to the wife and children,
the children immediately took such a vested interest in the policy
that the grandson was entitled to his father's share, the wife
having died before the husband; but that, in the absence of
the statute, ''it would have been a fund in the hands of his
representatives for the benefit of creditors, provided the pre-
miums had been paid by him." So in the case of Anderson's
Estate, 85 Pa. St. 202, A. insured his life in favor of his wife,
who died intestate in his life-time, leaving an only child. A.
died intestate and insolvent, the child surviving, and the court
held that the proceeds of the policy belonged to the wife's
i estate, and, under the intestate laws, was to be distributed share
1 and share alike between her child and her husband's estate, not-
1 withstanding, under a prior statute, life insurance taken out for
the wife vested in her free from the claims of the husband's
creditors. But if the wife had survived she would have taken
\the entire proceeds.
.^--''ni\/'e think it cannot be doubted that in the instance of con-
1 tracts of insurance with a wife or children, or both, upon their
insurable interest in the life of the husband or father, the
latter, while they are living, can exercise no power of disposi-
tion over the same without their consent, nor has he any in-
terest therein of which he can avail himself, nor upon his death
FRAUDULENT CONVEYANCES 145
have his personal representatives or his creditors any interest]
in the proceeds of such contracts, which belong to the benej
ficiaries, to whom they are payable. It is indeed the general
rule that a policy, and the money to become due under it, belong,
the moment it is issued, to the person or persons named in it
as the beneficiary or beneficiaries; and that there is no power
in the person procuring the insurance, by any act of his, by deed
or by will, to transfer to any other person the interest of the
person named. Bliss, Ins. (2d ed.) 517; Glanz v. Gloeckler,
10 111. App. 484, per McAllister, J. ; Id., 104 111. 573 ; Wilbum
v. Wilburn, 83 Ind. 55; Ricker v. Insurance Co., 27 Minn. 193,
6 N. W. Rep. 771 ; Insurance Co. v. Brant, 47 Mo. 419 ; Gould
v. Emerson, 99 Mass. 154 ; Insurance Co. v. Weitz, Id. 157.
This must ordinarily be so where the contract is directly
with the beneficiary ; in respect to policies running to the person
insured, but payable to another having a direct pecuniary in-
terest in the life insured; and where the proceeds are made to
inure by positive statutory provisions. Mrs. Hume was coi?
fessedly a contracting party to the Maryland policy; and, as
to the Connecticut contracts, the statute of the state where they
were made and to be performed explicitly provided that a policy
for the benefit of a married woman shall inure to her separate
use or that of her children ; but, if the annual premium exceed
$300, the amount of such excess shall inure to the benefit of
the creditors of the person paying the premiums. The rights
and benefits given by the laws of Connecticut in this regard
are as much part of these contracts as if incorporated therein,
not only because they are to be taken as if entered into there,
but because there was the place of performance, and the stipu-
lation of the parties was made with reference to the laws of that
place. And if this be so as between Hume and the Connecticut
companies, thenhe^ould not have atany tim^jdispoaedjjf thes£_
policies^ withoiit^_thejeonsent of the beneficiarY_: nor is there
anything to the contrary in the statutes or general public policy
of the District of Columbia. It may very well be that a transfer
by an insolvent of a Connecticut policy, payable to himself or
his personal representatives, would be held invalid in that dis-
trict, even though valid under the laws of Connecticut, if the
laws of the district were opposed to the latter, because the posi-
tive laws of the domicile and the forum must prevail ; but there
is no such conflict of laws in this case, in respect to the power
H. & A. Bankruptcy — 10
146
PREREQUISITES TO ADJUDICATION
/
of disposition by a person procuring insurance payable to
another.
he obvious distinction between the transfer of a policy taken
out by a person upon his insurable interest in his own life, and
payable to himself or his legal representatives, and the obtain-
ing^ of a policy by a^erson uponjthe insurable_interest of his
wife and children, and payable to them, has been repeatedly
N^ecbgnized by the courts. Thus in Elliott's Appeal, 50 Pa. St.
75, 83, where the policies were issued in the name of the husband,
and payable to himself or his personal representatives, and
while he was insolvent were by him transferred to trustees for
his wife's benefit, the Supreme Court of Pennsylvania, while
holding such transfers void as against creditors, say : ' ' We are
to be understood in thus deciding this ease that we do not
mean to extend it to policies effected without fraud, directly
and on their face for the benefit of the wife, and payable to
her ; such policies are not fraudulent as to creditors, and are not
touched by this decision." In the use of the words ''without
fraud," the court evidently means actual fraud participated
in by all parties, and not fraud inferred from the mere fact of
insolvency; and, at all events, in McCuteheon's Appeal, 99 Pa.
St. 133, 137, the court say, referring to Elliott's Appeal: "The
policies in that case were effected in the name of the husband,
and by him transferred to a trustee for his wife at a time when
he was totally insolvent. They were held to be valuable choses
in action, the property of the assured, liable to the payment of
his debts, and hence their voluntary assignment operated in
fraud of creditors, and was void as against them under the
statute of 13 Eliz. Here, however, the policy was effected in the
name of the wife, and in point of fact was given under an
agreement for the surrender of a previous policy for the same
amount, also issued in the wife 's name. * * * The question
of good faith or fraud only arises in the latter case; that is,
when the title of the beneficiary arises by assignment. When
it exists by force of an original issue in the name or for the
benefit of the beneficiary, the title is good, notwithstanding the
claims of creditors. * * * There is no anomaly in this, nor
any conflict with the letter or spirit of the statute of Elizabeth,
because in such cases the policy would be at no time the property
of the assured, and hence no question of fraud in its transfer
could arise as to his creditors. It3,imly in CMeJifJJie_assign-
ment of a policy that once hdonged to the^assured that the ques-
FRAUDULENT CONVEYANCES 147
tion of fraud can arise under thls^act." And see Bank v. Insur-
ance Co., 24 Fed. Repi T70 ; PencTv. Makepeace, 65 Ind. 345,
347; Succession of Hearing, 26 La. Ann. 326; Stigler's Ex'r
V. Stigler, 77 Va. 163 ; Thompson v. Cundiff, 11 Bush. 567. ^ ,
Conceding, then, in the case in hand, that Hume paid the I ^f^ '
premiums out of his own money, when insolvent, yet, as Mrs. -/uM>'^
Hume and the children survived him, and the contracts covered I '
their insurable interest, it is difficult to see upon what ground //
the creditors, or the administrators as representing them, can 1 1
take away from these dependent ones that which was expressly//
secured to them in the event of the death of their natural sup-'/
porter. The. interest insured was neither- the debtor's, not Jiis^
creditors'. The contracts were not payable to the debtor, ori
his representatives, or his creditors. No fraud on the part ofl^ "/^u^,
the wife, or the children, or the insurance company is pretended.jr^s/?^^
In no sense was there any gift or transfer of the debtor's prop- ^ U)
ertyT^unless the amounts paid_as prfiii[uumsare_to_j2fiJheid_to ij^
constitute _S]ich gift or transfer. This seems to have been the
view of the court below, for the decree awarded to the com-
plainants the premiums paid to the Virginia Company from
1874 to 1881, inclusive, and to the other companies from the
date of the respective policies; amounting, with interest, to
January 4, 1883, to the sum of $2,696.10, which sum was directed
to be paid to Hume's administrators out of the money which
had been paid into court by the Maryland and Connecticut
Mutual Companies. But, even though Hume paid this money"!
out of his own funds when insolvent, and if such payment were I
within the statute of Elizabeth, this would not give the creditors |//, /3
any interest in the proceeds of the policies, which belonged to I
the beneficiaries for the reasons already stated. n ^
Were the creditors, then, entitled to recover the premiums? 'J^**-»-*-L^
These premiums were paid by Hume to the insurance companies,
and to recover from them would require proof that the latter
participated in the alleged fraudulent intent, which is not
claimed. Cases might be imagined of the payment of large
premiums, out of all reasonable proportion to the known or
reputed financial condition of the person paying, and under
circumstances of grave suspicion, which might justify the infer-
ence of fraud on creditors in the withdrawal of such an amount
from the debtor's resources; but no element of that sort exists
here. The premiums form no part of the proceeds of thq
policies, and cannot be deducted therefrom on that ground.
148 PREREQUISITES TO ADJUDICATION
Mrs, Hume is not shown to have known of or suspected her
husband's insolvency, and if the payments were made at her
instance, or with her knowledge and assent, or if, without her
knowledge, she afterwards ratified the act, and claimed the
benefit, as she might rightfully do, (Thompson v. Ins, Co.,
46 N. Y, 675,) and as she does, (and the same remarks apply
to the children,) then has she thereby received money which
ex aequo et bono she ought to return to her husband's creditors;
and can the decree against her be sustained on that ground?
If in some cases payments of premiums might be treated as
gifts inhibited by the statute of Elizabeth, can they be so treated
here?
It is assumed by complainants that the money paid was
derived from Hume himself, and it is therefore argued that to
that extent his means for payment of debts were impaired.
That the payments contributed in any appreciable way to
Hume's insolvency, is not contended. So far as premiums
were paid in 1880 and 1881, (the payments prior to those years
having been the annual sum of $196.18 on the Virginia policy,)
we are satisfied from the evidence that Hume received from
Mrs. Pickrell, his wife's mother, for the benefit of Mrs. Hume
and her family, an amount of money largely in excess of these
payments, after deducting what was returned to Mrs. Pickrell;
and that, in paying the premiums upon procuring the policies in
the Maryland and the Connecticut Mutual, Hume was appro-
priating to that purpose a part of the money which he con-
sidered he thus held in trust; and we think that, as between
Hume's creditors and Mrs. Hume, the money placed in Hume's
hands for his wife's benefit is, under the evidence, equitably
as much to be accounted for to her by Hume, and so by them,
as is the money paid on her account to be accounted for by
i her to him or them. We do not, however, dwell particularly
u|)on this, nor pause to discuss the bearing of the laws of the
states of the insurance companies upon this matter of the
payment of premiums by the debtor himself, so far as they
may differ from the rule which may prevail in the District of
Columbia, in the absence of specific statutory enactment upon
that subject, because we prefer to place our decision upon
broader grounds.
In all purely voluntary.,£fl]ig«y<ui£es it is the fraudulent intent
)f the donor which vitiates. If actually insolvent, he is lield to
[knowledge ol nis conaition; and if the necessary consequence
FRAUDULENT CONVEYANCES
149
^"^^*
^
of his act is to hinder, delay, or defraud his creditors, withini ^ao^A «
the statute, the presumption of the fraudulent intent is irrerj <£jj/^ ^
buttable and conclusive, and inquiry into his motives is inadj
missible. But the circumstances of each particular case should be
considered, as in Partridge v. Gopp, 1 Eden, 163, 168, Amb, 596,
599, where the Lord Keeper, while holding that debts must be
paid before gifts are made, and debtors must be just before they
are generous, admitted that "the fraudulent intent is to be col-
lected from the magnitude and value of the gift. ' ' Where fraud
is to be imputed, or the imputation of fraud repelled, by an
examination into the circumstances under which a gift is made
to those towards whom the donor is under natural obligation,
the test is said, in Kiff v. Hanna, 2 Bland, 33, to be th^
pecuniary ability of the donor at that time to withdraw the
amount of the donation from his estate without the least hazard
to his creditors, or in any material degree lessening their then
prospects of payment ; and, in considering the sufficiency of the
debtor's property for the payment of debts, the probable, im- I
mediate, unavoidable, and reasonable demands for the support
of the family of the donor should be taken into the account and |
deducted, having in mind also the nature of his business and his J
necessary expenses, Emerson v. Bemis, 69 111. 541. This argtl-
raent in the interest of creditors concedes that the debtor may
rightfully preserve his family from suffering and want. It
seems to us that the same public policy which justifies this, and
recognizes the support of wife and children as a positive obliga-
tion in law as well as morals, should be extended to protect
them from destitution after the debtor's death, by permitting
him, not to accumulate a fund as a permanent provision, but^
to devote a moiierate^p^OEJiQii^of his^ar^^
%_seeurity for support already, or which could thereby be, law-^
fgllyobtained, arieast to the extent of requiring that, under^
safikjgircumitances, the fraudulent intent ^i both parties to
the transaction should b^~m
le out. And inasmuch as there is
no evidence from which such intent on the part of Mrs. Hume or
the insurance companies could be inferred, injourjudSH^^t
none of these piremiums can be recovered.
Thedecree is affirmed, except so far as it directs the payment
to the administrators of the premiums in question and interest,
and, as to that, is reversed, and the cause remanded to the
rTT^,»««^
150 PREREQUISITES TO ADJUDICATION
court below, with directions to proceed in conformity with this
opinion.i*^
FIR^T NAtFbANK of HUMBOLDT, NEB., v. GLASS et al.
^-^^ ^. j^'c-^^-L . 79 Fed. 706, 25 C. C. A. 151
(Circuit Court of Appeals, Eighth Circuit. March 22, 1897)
Appeal from the Circuit Court of the United States for the
District of Kansas.
This appeal challenges a decree which sustained a demurrer
to a bill brought by a judgment debtor to subject a homestead,
which the debtor had bought and caused to be conveyed to his
wife, to the payment of the judgment. The bill disclosed these
facts: The statutes of Nebraska exempt from judicial sale a
homestead not exceeding in value $2,000, consisting of a dwell-
ing house in which the claimant resides and the land on which
the house is situated, not exceeding 160 acres in extent. Consol.
St. Neb. 1891, c. 19, p. 430. The constitution of the state of
Kansas exempts from forced sale under process of law a home-
stead not exceeding 160 acres of farming land, or one acre within
the limits of an incorporated town or city, and all the improve-
ments thereon, when it is occupied as a residence by the family
of the owner, whatever its value may be. Const. Kan. art. 15,
§ 9 ; 1 Gen. St. 1889, par. 235. From May 4, 1892, until March
22, 1894, the appellee, John F. Glass, owned, and with his wife,
Harriet H. Glass, resided upon and occupied, 160 acres of land
in the state of Nebraska, as their homestead. In May, 1892,
Glass purchased of one Gravatte some fruit trees which were
planted on his farm, and which enhanced its value $3,000. He
gave Gravatte a span of horses and six of his promissory notes
for these trees. The appellant, the First National Bank of
Humboldt, Neb., purchased four of these notes before their
maturity, and on November 19, 1894, obtained a judgment
thereon for $2,278.44 against John F. Glass, in an action which
^ ^ 10 — Cf. The Merchants' and itors in case transaction is declared
Cj Crl*^/Mi°c^s' Transportation Co. v. Bor- fraudulent see Roberts v. Winton,
3 1 land, 53 N. J. Eq. 282. 100 Tenn. 484; Bailey v. Wood, 202
'y^i^^ / See article in 25 Am. L. Rev. Mass. 549; Lehman v. Gunn, 124
Y" '385, where the cases and statutes Ala. 213; Asbury Park First Nat.
^ are discussed. Bank v. White, 60 N. J, Eq. 487,
As to amount recoverable by cred- 46 Atl. 1092.
FRAUDULENT CONVEYANCES 151
it had commenced in the District Court of Pawnee county, in
the state of Nebraska, on June 24, 1893. Glass was insolvent,
and he had no property except the farm which he occupied as
his homestead. On Maroh 2g, 18fl4^ he sold and conveved-this
farm to one jluff^for $6,100, and with that money he bought
160 acres of farming land in Franklin f.nimty in thejrtate oi.
Kgaaag, and caused the vendor to convey it to his wife. He
and his wife immediately took possession of it, and have ever
since resided upon, occupied, and claimed it as their homestead.
The bank caused an execution to be issued on its judgment in
1895, and it was returned nulla bona. It then_broughtan action
upon this .iudgment, and obtained a judgment in that action,
and a reijarno^f execution unsat^^ in the District. Court „Qf
Franklin county, in the state of Kansas.^ Thereupon it exhibited
its bill in the court below, and alleged, in addition to the fore-
going facts, that the appellees sold their farm in Nebraska,
secretly fled to the state of Kansas, and purchased and took
possession of their farm in that state with the intent and for
the purpose of cheating and defrauding the bank out of its
claim against Glass, and for the purpose of preventing it from
collecting its judgment from the farm in Nebraska, which was
worth $4,100 more than the value of an exempt homestead,
under the statutes of that state. The_ bank— prayed for the,
sfllpjvf flip farm jri Kansas, an4 for.jj^^^appljf^atinn of the pro-
ceeds of the sale to the payment of its judgment.
SANBORN, Circuit Judge, after stating the case as above,
delivered the opinion of the court.
An insolvent debtor may use with impunity any of his prop-
erty that is free frpin the liens ai\djhe. vested equitable interests
of his creditors to purchase~a~homestead tor himself and his
family in his own name. If he takes property that is not
exempt from judicial sale and applies it to this purpose, he
merely avails himself of a plain provision of the constitution or
the statute enacted for the benefit of himself and his family.
He takes nothing from his creditQEs^-by this actinn in which
they have janyjvested right._ The constitution or statute exempt-
ing the homestead from the judgments of creditors is in force
when they extend the credit to him, and they do so in the face
of the fact that he has this right. Nor can the use of property!
that is not exempt from execution to procure a homestead be
held to be a fraud upon the creditors of an insolvent debtor,
152
PREREQUISITES TO ADJUDICATION
y./3
b^ji^
because that which the law expressly sanctions and permits can-
not be a legal fraud. Jaeoby v. Distilling Co., 41 Minn. 227,
43 N. W. 52; Kjelly v. Sparks, 54 Fed. 70; Sproul v. Bank,
22 Kan. 238; Tucker v. Drake, 11 Allen, 145; O'Donnell v.
Segar, 25 Mich. 367 ; North v. Shearn, 15 Tex. 174 ; Cipperly v.
Rhodes, 53 111. 346; Randall v. Buffington, 10 Cal. 491. When
the appelles sold their farm in Nebraska, and bought and took
possession of their homestead in Kansas, the bank had acquired
no lien and no specific equitable interest in any of the property
Qf its debtor. It was his simple conffact creditor, and it had
no vested right in either his property or his residence. He had
, the right to change his residence from one state to another, and
\to secure for himself a homestead in any state where he chose
/to live. If, therefore, he had taken the conveyance of his home-
stead in Kansas in his own name, it would have been exempt
from the judgment of the appellant.^ ^
The only question remaining is whether the farm lost this
exemption because he caused it to be conveyed to his wife. Upon
this question the authorities are not in accord. The Supreme
Court of Minnesota declares that such a transaction is a fraud
'upon creditors, and subjects The property so acquired to the
I payment of their debts. Sumner v. Sawtelle, 8 Minn. 309 (Gil.
272) ; Rogers v. McCauley, 22 Minn. 384. The Supreme Court
Sof Kansas, on the other hand, holds that a homestead purchased
(and paid" for from the unexempt property of the husband is
lequally exempt from judicial sale, under the constitution of that
(state, whether the title is taken in the name of the husband or
I in that of the wife. Monroe v. May, 9 Kan. 466, 475, 476 ; Hixon
"vT George, 18 Kan, 253, 258. The decisions of the highest
[judicial tribunal of the state of Kansas, which we have cited,
{settle this question in the case at bar. * * * The decree be-
llow is in accordance with the constitution and statutes of the
state of Kansas, as they have been construed by its supreme
court, the property in controversy is situated in that state, and
its title is fixed by that construction. Let the decree be aflBrmed,
with costs. ^2
I I son.
11 — To same effect is In re^WiI_-
123 Fed. 20, reviewing earlier
eases contra. See also Ferguson v.
Little Eock Trust Co., 99 Ark. 45,
137 8. W. 555 Ann. Cas. 1913 A,
960 and note wherein many cases
are collected.
12 — As to creditor's possible j\
remedy, see Riddell v. Shirley, 5 /j
Cal. 488; Comstock v. Bechtel, 63 |
Wis. 656, 24 N. W. 465.
Fraudulent Conveyance of Ex-
empt Property. — "This case was
determined by the court below in
FRAUDULENT CONVEYANCES
153
TWYNE'S CASE
3 Coke, 80 b.
(Star Chamber, 1602)
In an information by Coke, the Queen's Attorney General,
against Twyne of Hampshire, in the Star Chamber, for mak-
ing and publishing of a fraudulent gift of goods: the case on
the Stat. 13 Eliz. e. 5 was such ; Pierce was indebted to Twyne
in four hundred pounds, and was indebted also to C. in two
hundred pounds. C. brought an action of debt against Pierce,
and pending the writ, Pierce being possessed of goods and chat-
tels of the value of three hundred pounds, in secret made a
general deed of gift of all his goods and chattels real and per-
accordance with what has been gen-
erally understood to be the tendency
and logical result of Piper v. John-
ston, 12 Minn. 60, and before the
decisions of this court in Morrison
V. Abbott, 27 Minn. 116; Fergu-
son V. Kumler, Id. 156; and Fur-
man V. Tenney, ante, p. 77, were
promulgated. So far as this Court
is concerned, the latter cases estab-
lish the rule that a debtor's trans-
fer of prC^pertV PIP"^r^ fr-r^m ovoon.
tion is not void, but valid, even
against his creditors, though the
transfer be voluntary. It is, of
course, no less valid if made upon
a consideration." Berry, J., in
Baldwin v. Eogers, 28 Minn. 544,
548.
"There is no principle of law
more consonant with reason, or bet-
ter supported by authority, than
that a conveyance which is fraudu-
lent as to creditors, binds, never-
theless, the parties to it. Through
that 'cloud of authorities' of which
the counsel speak; this principle
shines perpetually, and it guides us
to the conclusion that the appellant
is here without merits.
"Having caused his house and
lot to be conveyed to his wife for
the purpose of hindering and delay-
ing his creditors, denying his own-
ership as long as denial would serve
to keep them off, he chops round
now when they have raised $314.26
out of the property by a sheriff 's
sale of it. and claims $300 of the
proceeds under our exemption stat-
ute.
"It would be a penersion of
that humane law to apply it to such
a ease. As to his creditors, the
fraudulent deed was void, and he
remained the owner of the property,
but the deed concluded him for all
other purposes. The statute was
not made as an instrument of fraud
to delay and hinder creditors, but
to secure to honest debtors from
the wreck of their fortunes a sub-
sistence until they can do something
for themselves and families."
Woodward, J., in Huey's Appeal,
29 Pa. St. 219, 220. For the cases
generally, see 20 Cyc. 3/77'<?? seq.
"Property of Little or No Value. —
Compare French v. Holmes, 67 Me.
186, with Garrison v. Monaghan, 33
Pa. St. 232. See dissenting opinion
in Aultman, etc., Co. v. Pikop, 56
Minn. 531. See also "Williams v.
Bobbins, 15 Gray, 590.
154 PREREQUISITES TO ADJUDICATION
sonal whatsoever to Twyne, in satisfaction of his debt; not-
withstanding that Pierce continued in possession of the said
goods, and some of them he sold; and he shore the sheep, and
marked them with his own mark : and afterwards C. had judg-
ment against Pierce, and had a fieri facias directed to the sheriff
of Southampton, who by force of the said writ came to make
execution of the said goods; but divers persons, by the com-
mand of the said Twyne, did with force resist the said sheriff,
claiming them to be the goods of the said Twyne by force of
the said gift; and openly declared by the commandment of
Twyne, that it was a good gift, and made on a good and lawful
consideration. And whether this gift on the whole matter, was
fraudulent and of no effect by the said Act of 13 Eliz. or not,
was the question. And it was resolved by Sir Thomas Egerton,
Lord Keeper of the Great Seal, and by the Chief Justice Popham
and Anderson, and the whole Court of Star Chamber, that this
gift was fraudulent, within the statute of 13 Eliz. And in this
ease divers points were resolved:
1st. That this gift had the signs and marks of fraud, because
the gift is general, \^'ithout exception of his apparel, or any-
thing of necessity ; for it is commonly said, quod dolus versatur
in generalihus.
2nd. The donor continued in possession, and used them as
his own; and by reason thereof he traded and trafficked with
others, and defrauded and deceived them.
3rd. It was made in secret, et dona dandestina sunt semper
suspiciosa.
4th. It was made pending the writ.
5th. Here was a trust between the parties, for the donor
possessed all, and used them as his proper goods, and fraud
is always apparelled and clad with a trust, and a trust is the
cover of fraud.
6th. The deed contains, that the gift was made honestly, truly,
and }}(ma fide; et clausvlcB inconsuet' hiducunt suspicionem.
Secondly, it was resolved, that notwithstanding here was a
true debt due to Twyne, and a good consideration of the gift,
yet it was not within the proviso of the said Act of 13 Eliz. by
which it is provided, that the said Act shall not extend to any
estate or interest in lands, etc., goods or chattels made on a
good consideration and bona fide; for although it is on a true
and good consideration, yet it is not hcyna fide, for no gift shall
be deemed to be hcma fide within the said proviso which is accom-
FRAUDULENT CONVEYANCES 155
panied with any trust; as if a man be indebted to five several
persons, in the several sums of twenty pounds, and hath goods
of the value of twenty pounds, and makes a gift of all his goods
to one of them in satisfaction of his debt, but there is a trust
between them, that the donee shall deal favourably with him
in regard of his poor estate, either to permit the donor, or some
other for him, or for his benefit, to use or have possession of
them, and is contented that he shall pay him his debt when he
is able; this shall not be called bona fide within the said pro-
viso; for the proviso saith on a good consideration, and bona
fide; so a good consideration doth not suffice, if it be not also
bona fide; and therefore, reader, when any gift shall be to you
in satisfaction of a debt, by one who is indebted to others also ;
Ist, Let it be made in a public manner, and before the neighbours,
and not in private, for secrecy is a mark of fraud. 2nd, Let the
goods and chattels be appraised by good people to the very
value, and take a gift in particular in satisfaction of your debt.
3rd, Immediately after the gift, take the possession of them;
for continuance of the possession in the donor, is a sign of
trust. And know, reader, that the said words of the proviso,
on a good consideration, and bona fide, do not extend to every
gift made bona fide; and therefore there are two manners of
gifts on a good consideration, scil. consideration of nature or
blood, and a valuable consideration. As to the first, in the
case before put; if he who is indebted to five several persons,
to each party in twenty pounds, in consideration of natural
affection, gives all his goods to his son, or cousin, in that case,
forasmuch as others should lose their debts, etc., which are things
of value, the intent of the Act was, that the consideration in such
case should be valuable ; for equity requires, that such gift,
which defeats others, should be made on as high and good con-
sideration as the things which are thereby defeated are ; and it
is to be presumed, that the father, if he had not been indebted
to others, would not have dispossessed himself of all his goods,
and subjected himself to his cradle; and therefore it shall be
intended, that it was made to defeat his creditors; and if con-
sideration of nature or blood should be a good consideration
within this proviso, the statute would serve for little or nothing,
and no creditor would be sure of his debt. And as to gifts made
bo^ia fide, it is to be known, that every gift made bana fide,
either is on a trust between the parties, or without any trust;
every gift made on a trust is out of this proviso ; for that which
156 PREREQUISITES TO ADJUDICATION
is betwixt the donor and donee, called a trust per nomen
spedosum, is in truth, as to all the creditors, a fraud, for they
are thereby defeated and defrauded of their true and due debts.
And every trust is either expressed, or implied; an express
trust is, when in the gift, or upon the gift, the trust by word
or writing is expressed; a trust implied is, when a man makes
a gift without any consideration, or on a consideration of
nature, or blood only; and therefore, if a man before the stat.
of 27 H. 8 had bargained his land for a valuable consideration
to one and his heirs, by which he was seized to the use of the
bargainee; and afterwards the bargainor, without a considera-
tion, infeoffed others, who had no notice of the said bargain ; in
this case the law implies a trust and confidence, and they shall
be seized to the use of the bargainee ; so in the same case, if the
feoffees, in consideration of nature, or bloode had without a
valuable consideration enfeoffed their sons, or any of their
blood who, had no notice of the first bargain, yet that shall not
toll the use raised on a valuable consideration ; for a feoffment
made only on consideration of nature or blood, shall not toll
an use raised on a valuable consideration but shall toll an
use raised on consideration of nature, for both considerations
are in cequali jure, and of one and the same nature.
And when a man, being greatly indebted to sundry persons,
makes a gift to his son, or any of his blood, without considera-
tion, but only of nature, the law intends a trust betwixt them,
soil, that the donee would, in consideration of such gift being
voluntarily and freely made to him, and also in consideration
of nature, relieve his father, or cousin, and not see him want
who had made such gift to him, vide 33 H. 6, 33, by Prisot, if
the father enfeoffs his son and heir apparent within age hona
fide, yet the lord shall have the wardship of him : so note, valu-
able consideration is a good consideration within this proviso;
and a gift made haiw fide is a gift made without any trust either
expressed or implied: by which it appears, that as a gift made
on a good consideration, if it be not also hmid fide, is not within
the proviso ; so a gift made han^i fide, if it be not on a good con-
sideration, is not within the proviso; but it ought to be on a
good consideration, and also bona fide.
To one who marvelled what should be the reason that Acts
and statutes are continually made at every Parliament without
intermission, and without end ; a wise man made a good and
/ short answer, both of which are well composed in verse.
FRAUDULENT CONVEYANCES 157
Quaeritur, ut crescunt tot magna volumina legist
In prompt u causa est, arescit in orhe dolus.
And because fraud and deceit abound in these days more than
in former times, it was resolved in this case by the whole Court,
that all statutes made against fraud should be liberally and
beneficially expounded to suppress the fraud. Note, reader,
according to their opinions, divers resolutions have been
made. * * *
CADOGAN V. KENNETT / k ;
2 Cowp. 432 f^^ n^^JL
(King's Bench. May 6, 1776) p^^ *
Upon shewing cause why a new trial should not be granted
in this case, Lord MANSFIELD reported as follows:
This was an action of trover brought by the plaintiffs, who
are theJxusteeshUBderthe marriage-^fittlement of Lord Montfort,
against the defendantMrTKennett, who is a judgment creditor
of Lord jMontfort's, and the other defendants, who are sheriff's
officers, to recover certain goods taken by them in execution
under a fi. fa. — At the trial the plaintiffs proved Lord Mont-
fort's marriage settlement, by which it appeared that the goods
in question, whjch were the household goods belonging to Lord
IVInjtfnrt, ?^t his InrHsliip's bniif^pJri^tmvTi, anH which were very
minutely particularized in a schedule annexed to the settle-
ment, \y^re__all_ conyeyed_tothe plaintiffs, as trustees, for the
use of LordMontfort for life, remainder to Lady Montfort for
her life».i:emainder to the first and other sons of the marriage
One of the witnesses proved, that at the time of the settle-
ment being made, it_was^ known^Lom Montfort was in debfT—
but he thougEl the fortune of the lady he was to marry, which
amounted to £10,000 was amply sufficient to pay all the debts
he owed at that time, and had no idea of disappointing any
creditor. That Mr. Kennett was a creditor of Lord Montfort
at the time of the settlement. That Lady Montfort was a ward
of the Court of Chancery ; and the reason for including the
household goods in the settlement was, because it was thought
Lord Montfort 's real estate was not of itself sufficient to make
a proper and adequate settlement. — It appeared also that the
158 PREREQUISITES TO ADJUDICATION
settlement was referred to a JJiaster in Chancery, who approved
of,-the_settlemfiiit, and the inserting the household goods for the
reason above-mentioned.
At the trial, I inclined to think, that the settlement being made
under a treaty with the Court of Chancery, and approved of
by the Master, was a bona fide transaction, and that the posses-
sion of Lord Montfort was not fraudulent, because it was in
pursuam,ce, and in execution, of the trust.
The jury found a verdict for the plaintiffs, damages Is. and
if the court should be of opinion with the plaintiffs, then the
goods were to be delivered specifically.
LORD MANSFIELD.— The question in this case is, whether
the plaintiffs, who are trustees under the marriage settlement of
Lord Montfort, by which the household goods in question are
settled as heir looms with the house in strict settlement, and
specifically enumerated in a schedule annexed to the settle-
ment, so as to avoid any fraud by the addition or purchase
of new; whether, the trustees are entitled to the possession of
these goods against the defendant Mr. Kennett.
The defendant has taken the goods in execution; and it is
not disputed that he is a fair creditor. But the plaintiffs bring
this action as trustees under the marriage settlement, and the
question is, whether they are, against the defendant, entitled
to the possession of these goods for the purposes of the trust.
I have thought much of this case since the trial, and in every
light in which I have considered it, I have not been able to
raise a doubt.
The principles and rules of the common law, as now uni-
versally known and understood, are so strong against fraud in
every shape, that the common law would have attained every
end proposed by the statutes 13 El. c. 5, and 27 El, c. 4. The
former of these statutes relates to creditors only; the latter to
purchasers. These statutes cannot receive too liberal a construc-
tion, or be too much extended in suppression of fraud.
The stat. 13 El. c. 5, which relates to frauds against creditors,
directs "that no act whatever done to defraud a creditor or
creditors shall be of any effect against such creditor or cred-
"^itors." But then such a construction is not to be made in
support of creditors as will make third persons sufferers. There-
fore, the statute does not militate against any transaction bona
fide, and where there is no imagination of fraud. And so is the
FRAUDULENT CONVEYANCES 159
common law. But if the transaction be not bona fide, the cir-
cumstances of its being done for a valuable consideration, will
not alone take it out of the statute. I have known several cases
*Vnere persons kave given a lair^^aiid fuU price for goods, and
where the possession was actually changed; yet being done for
the purpose of defeating creditors, the transaction has been held
fraudulent, and therefore void.
One case was, where there had been a decree in the Court of
Chancery, and a sequestration. A person with knowledge of the
decree, bought the house and goods belonging to the defendant,
and gave a full price for them. The court said, the purchase
being with a manifest view to defeat the creditor, was fraudu-
lent, and therefore, notwithstanding a valuable consideration,
void. So, if a man knows of a judgment and execution, and,
with a view to defeat it, purchases the debtor's goods, it is void:
because, the purpose is iniquitotcs. It is assisting one man to
cheat another, which the law will never allow. There are man^
things which are considered as circumstances of fraud. The \
statute says not a word about possession. But the law says,
if after a sale of goods, the vendee continue in possession, and I
appear as the visible owner, it is evidence of fraud; because/
goods pass by delivery: but it is not so in the case of a lease,
for that does not pass by delivery.
The stat. 27 El. c. 4, does not go to voluntary conveyances
merely as voluntary, but to such as are frmdulent. A fair
voluntary conveyance may be good against creditors, notwith-
standing its being voluntary. The circumstance of a man being
indebted at the time of his making a voluntary conveyance, is an
argument of fraud. The question, therefore, in every case is,
whether Jthfi_act.dQnfi_^a ftgytaj^ transaction^jir-'cp^^ptliPT' ijf^g '**/*<
a trick-anxL,contrivance to defeat creditore. If there be a con-
veyance to a trustee for the benefit of the debtor, it is fraudu-
lent. The question then is, whether this settlement is of that
sort. It is a settlement which is very common in great families.
In vnlls of great estates, nothing is so frequent as devises of
part of the personal estate to go as heir looms; for instance,
the devise of the Duke of Bridge water's library. — the old Duke
of Newcastle's plate. So in marriage settlements, it is very
common for libraries and plate to be thus settled, and for
chattels and leases to go along with the land. If the husband
grows extravagant, there never was an idea that these could
160 PREREQUISITES TO ADJUDICATION
afterwards be overturned. If this court were to determine they
should, the parties would resort to Chancery. — ^We come then
to the circumstances of the present case, which are very strong.
There is not a sus;gestion of any intention to defraud, or the
most__distaBt_view of disappointing any creditor. The very
object of the marriage settlement was, that the lady's fortune
might be applied to the discharge of all Lord Montf ort 's debts :
the amount of this fortune was £10,000 and was thought fully
sufficient for that purpose. Besides this, it is a settlement
approved by a Master in Chancery. Most clearly the Master in
Chancery and the Great Seal could have no fraudulent view\
But it appears further, that the reason why the goods were
inserted was, because the settlement of the real estate alone was
thought inadequate without them. Clearly, therefore, it was no
contrivance to defeat creditors, but meant as a provision for
the lady if she survived, and heir looms for the eldest son.
iAn argument, however, is drawn from the_po££essio2L_a§_a
strong circumstance of fraud : but it does not hold in this case.
Ft is a part of the trust that the goods shall continue in the
house ; and for a very obvious reason : because, the furniture
of one house will not suit another; and it was the business of
the trustee to see the goods were not removed.
If Lord Montfort had let his house with the furniture, reserv-
ing one rent for the house, and another for the furniture; or
if the rent could be apportioned, the creditors would be en-
titled to the rent; but they have no right to take the goods
themselves: the possession of them belongs to the trustees, and
the absolute property of them is now vested in the eldest son.
I expected an authority; but though such settlements are
frequent, no case has been cited to shew they are fraudulent.
How commx)n are settlements of chattels, and money in the
stocks ; can there be a doubt but they are good ? Yet the creditors
would be entitled to the dividends during the interest of the
debtor. Here, there was clearly no intention to defraud, and
there is a good consideration. Therefore, I am of opinion it
could not be left to the jury to find the settlement fraudulent,
merely because there were creditors. The goods must now be
kept in the house for the benefit of the son.
ASTON, Justice. I am of the same opinion.
WILLES, Justice. I am of the same opinion.
Per Cur. Rule for a new trial discharged.
FRAUDULENT CONVEYANCES 161
MEUX V. HOWELL
4 East 1 ^^^ f^K ^
(King's Bench. June 13, 1803)
This_^ya8 an action on the statute 13 Eliz. c. 5, wherein^e
declarati2iL.atatedj^ that the defendants of their malice, fraud,
fiovinTand collusion, on the 10th of June, 1802, at, etc., were
parties to a certain feigned, covenous, and fraudulent suit
against one J. Norton, in which^a certain feigned, covenous, and
fraudulent judgment against him, to which the defendants were
also parties, was signed and entered of record in B, R. as of
Easter term, 42 Geo. 3 ; by which said judgment the defendants
feignedly, covenously, and fraudulently recovered against the
said J. N. as well a supposed debt of £800, as also 63s. damages,
etc., to the purpose and intent to delay, hinder, and defraud the
plaintiffs of their just debt, the plaintiffs then being creditors of
the said J. N. for a debt of £176, etc. ; which said feigned, cove-
nous, and fraudulent judgment, the defendants being parties
and privies to, and knowing of the same, afterwards, on 12th
June, 1802, at, etc., did wittingly and willingly put in use,
avow, maintain, and defend as true, simple, bmm fide, and upon
good consideration, contrary to the form of the statute, etc. ;
by reason whereof an action hath accrued to the plaintiffs,
they being the parties aggrieved, etc., to demand £803 3s.
being so much contained in the said feigned, covenous, and
fraudulent judgment, etc. Plea, nil debet.
At the trial before Lord Ellenborough, C. J., at the sittings/
after last Hilary term, at Westminster, the plaintiff recovered a
verdict upon the first count of the declaration above stated ;
and upon a rule nisi obtained in the last term for setting aside
the verdict and entering a nonsuit, or arresting the judgment,
which stood over till now, the following facts appeared.
The plaintiffs were brewers, and landlords of a public house '
tenanted by J. Norton, who was indebted to them £92 10s. for
three years* rent in arrear, and also £116 for beer supplied to
him by the plaintiffs. On the 11th of May._1802, the plaintiffs^
distrained for the^£92 lOs^ent in arrearTand an agent was put
in pfigsession of tlifiL^goods distrained on the premises, but no
s.ale_gas majie, Norton applying to them for time to settle his
affairs, and agreeing that the plaintiffs' agent should continue
in possession of the distress in the mean time. Prior to the
H. & A. Bankruptcy — H
162 PREEEQUISITES TO ADJUDICATION
sending in the distress Norton was arifisted-by the, defendants,
who were distillers, for £42, for which he had at first given bail,
t on the 12th of May was rendered in discharge of his bail.
On the 19th of May, Norton having agreed to dispose of hjs
business to one J. W., while the plaintiffs' distress still con-
tinued, entered into an agreement in writing with the plaintiffs'
agent Deady, whereby he requested him to let J, W. into posses-
Ision of his (Norton's) house for £50 goodwfflpajQ^^to sell by
appraisement all the goods, fixtures, and stock in trade on the
premises to J. W. before the 24th of May, and after such settle-
ment Deady was to pay all the rent, taxes, expenses, and the
book debt due to Meux and Co., and another debt to him,
(Deady) and another to his brother; the overplus to be re-
amed to Norton, etc. In consequence of this authority Deady
procured the goods, etc., to be appraised, and the gross amount
was £236 7s. 3d., out of which certain deductions were to be
made for taxes, expenses, etc. The defendants being apprised
by Norton of these circumstances, on the 25th of May, while
the plaintiffs' agent was still in possession under the distress,
the defendant Atlee told^Norton thathe should J)e veryis_orrxlhat
[ Iigadj;_should run away with the whole of the^rogerty, and
lthat_2f]hirXNortpnj w^ to sign, ai^yistrument^he
\wjould give him his discharge immediately. What the instru-
ment was Norton did not know till he had signed it; but
Atlee proposed that it should be for the benefit of the creditors
in general. Norton did not himself consult any of his creditors,
of whom he had several, but left that to Atlee. NQrliau_how-
exer, swore that he did not sign the instrument for the purpose
of defeating the plaintiffs' distress ;^ and at the time of the trial
he was still in custody at the suit of the defendants. This instru-
ment, which was prepared by Mr. Wild, the attorney for the
defendants, was a warrant of attorney to confess judgment for
£800, with a defeazance that execution should issue to levy
£500 (which the defendants' attorney computed to be the prob-
able amount of the debts), and that with the produce of the
sale an equal distribution should be made amongst all the
creditors. Under this power judgment was entered up on the
10th of June, and execution issued on the 12th, when all the
goods were sold for about £104, and no part of the money was
paid to the plaintiffs either on account of their distress for
the rent, in respect of which the plaintiffs' agent was still on
the premises, with Norton 's consent, or for their book debt : but
FRAUDULENT CONVEYANCES 163
a tender was made to the plaintiffs as for the rent (but less
than the two years' rent), which they would not receive. The
defendants had not previously consulted any of the othet
creditors of Norton; but Atlee, in answer to one of them who
afterwards called upon him, said, that he meant to divide the
money equally amongst the creditors as soon as he could pro-
cure a list of them. On the part of the defendants, Mr. Wild
their attorney swore, that the instructions he received from them
was merely to take such measures as the occasion required to
effect an equal distribution of Norton's property amongst all
his creditors, leaving the particular mode of doing it to him
(Wild) ; in consequence of which he prepared the warrant of
attorney on which the judgment in question was entered up.
The defeazance was taken for £500, considering that to be about
the amount of Norton's debts altogether. It was left to the
jury to consider whether the defendants were privy to the actual
judgment and ^eiration^_^^£ded upon the power of attorney
prepared by Wild their agent, or merely to the general object
oj obtaining possession_of the property to prevent the plaintiffs
from satisfying their demand in prejudice to the general
creditors. The jury found, that the defendants were privy to
the means used as well as to the general object, and found a
verdict for the plaintiffs for £803 3s.
LORD ELLENBOROUGH, C. J. It is not every feoffment,
judgment, etc., which will have the effect of delaying or hinder-
ing creditors of their debts, etc., that is therefore fraudulent
within the statute; for such is the effect pro tanto of every
assignment that can be made by one who has creditors: every
assignment of a man's property, however good and honest the
consideration, must diminish the fund out of which satisfaction
is to be made to his creditors. But the feoffment, judgment,
etc., must be devised of malice, fraud, or the like, to bring it
within the statute. Then was this judgment of that sort?
For whose benefit was the fraud? Norton has extinguished no
debt by means of it, further than as the execution shall turn
out productive in satisfying the demands of his just creditors.
It holds out no protection to him otherwise. He is even left
under arrest at the suit of the particular creditor, as he was
before the judgment was confessed. Then Jiow-are^he defend-
ants implicated in any fraud? Instead of having, as tEey
might have had, a satisfaction~Tor their whole debt, by having
164
PREREQUISITES TO ADJUDICATION
1^'
^iti^
the judgment confessed to them for that alone, they forego that
advantage, and take a judgment confessed for the amount of
the debts of the creditors at large, being contented to come in
pari passu with the other creditors. They have derived there-
fore no benefit to themselves. Nor was the judgment confessed
in prejudice of any_right of the plaintiffs. For their distress
wEich was in could not be defeated by^the operation of the
judgment. And as to their book debt, they had taken no inchoate
legal steps to recover it, for the paper signed by Norton operated
nothing. The judgment put the plaintiffs in the same situation
as the rest of the creditors. It delayed the plaintiffs indeed so
far as a proportionable payment to creditors in general is a
delay of each of them in particular : but there was no fraud, no
colour, no undue protection to the debtor. The defendants were
placed in a worse situation than if they had taken the judg-
/ment for themselves alone. Therefore unless we were to go the
length of saying that every assignment to a creditor is fraudu-
lent as to the rest of the creditors, and prohibited to be made,
this was not fraudulent. It has none of the qualities of fraud
within the act of parliament, which was meant to prevent deeds,
etc., fraudulent in their concoction, and not merely such as in
their effect might delay or hinder other creditors.
GROSE, J. The statute in its whole frame is calculated to
prevent certain frauds, and to punish those who are guilty of
them; and we must be satisfied that the defendants have been
so guilty before we can say that the verdict ought to stand,
which is to induce that punishment upon them. The first clause
of the statute speaks of judgments, etc., devised of "malice,
fraud, covin, collusion, or guile," not only to "the let or
hindrance of the due course and execution of law and justice,"
but also to "the overthrow of all true and plain dealing." The
second clause speaks of persons whose suits, debts, etc., are
hindered, delayed, or defrauded "by such guileful, covenous,
or fraudulent devices and practices as aforesaid." And the
third section inflicts punishment upon such as put in ure, etc.,
"as true, simple and done bona fide and upon good considera-
tion," such acts. This satisfies me that if the judgment, etc.,
be given hana fide and upon good consideration, it is not within
the act. Here there is nothing like a fraud. And it makes one
shudder to think that persons who appear like the defendants to
have acted most honestly should have been in any hazard of being
FRAUDULENT CONVEYANCES 165
subjected to punishment for having endeavoured to procure
an equal distribution of their debtors' effects amongst all his
creditors. Their conduct was meritorious, and the judgment
confessed by Norton was not covenous or feigned, but given boiKt
fide and upon good consideration for debts due to the defend-
ants and the other creditors. Therefore, I think there ought to]
be a new trial.
Lord ELLENBOROUGH, C, J., then observed, that he
thought the third clause of the act imposing the penalty, which
in one part only mentions the word band, had had a fair con-
struction put upon it by the plaintiffs' counsel; and that it must
be taken to extend to feoffments, judgments, etc., as mentioned in
the other parts of the clause,
LAWRENCE, and LE BLANC, Justices, declared themselves
of the same opinion for the defendants. :ky^ -XX
Rule absolute.
FREEMAN v, POPE
5 Ch. App. 538 I ^
^i^r
(Chancery. June 7, 1870) ' fv-
This was an appeal by the Defendant Pope from a,.d£er.ee of
Vice-Chancellor James, setting aside a voluntary settlement,
dated the 3d of March, 1863, by which the Rev, J, Custance
assi^ed to trustees for the benefit of Julia Pope (then Julia
Thrift) a policy of insurance for £1000 (effected by him in
1845 on his own life), and covenanted to pay the premiums. It
appeared that he had previously settled this policy upon her in
1853, reserving a power of revocation, which he exercised in
1861, in order that he might deceive a bonus.
At the time when the settlement now impeached was made,
the settlor held two livings producing a net income of £815, and
he was entitled to a Government life-annuity of a little more
than £180, and to a copyhold cottage which he on the same day
covenanted to surrender to Mrs. Walpole, the mother of Julia
Pope, for £50, He had no other property except his furniture,
and he was being pressed by his creditors. Among other debts,
he owed £489 to Messrs, Gurney, his bankers at Norwich, and
£7 8s. 6d, to a postmaster. On the same 3d of March, 1863, he
166 PREREQUISITES TO ADJUDICATION
borrowed from Mrs. Walpole £350, for which he gave her a bill
of sale of his furniture. Mrs. Walpole was privy to, and one of
the trustees of, the settlement. At the same time he made an
arrangement with his bankers that his solicitor, Mr. Copeman,
should receive certain income from the benefices, and pay out of
it £50 each half-year towards discharge of the balance. The
banking account at Norwich was to remain a dead account, and
to be discharged, with interest, by the above instalments. A
new account was to be opened with the Aylsham branch of the
same bank, and Copeman was to pay the residue of the income
(after deducting the £50) to this new account, which was to be
an ordinary current banking account.
At the testator 's . death, in April, 1868, the balance of £489
due to the bankers had been reduced to £117 by means of the
annual instalments of £50. The Aylsham account showed no
balance on either side. The postmaster's debt of £7 8s. 6d., and
Mrs. Walpole 's £350, with an arrear of interest, remained un-
paid. The other debts due at the date of the settlement had
been paid. The settlor, however, owed many debts subsequently
contracted, and there were no assets whatever to pay them ; the
furniture having been sold under a subsequent bill of sale, to
which Mrs. Walpole had agreed to postpone her security.
The Plaintiff, a tradesman who had supplied goods to the
settlor after the date of the settlement, filed his bill for adminis-
tration of the settlor's estate, and to set aside the settlement,
to the benefit of which the Defendant Pope had become entitled
under an appointment by Julia Pope.
The Vice-Chancellor James made a decree for setting aside
the settlement, from which Pope appealed.
LORD HATHERLEY, L. C. The principle on which the
statute of 13 Eliz. c. 5, proceeds is this, that persons must be
just before they are generous, and that debts must be paid before
gifts can be made.
V The difficulty the Vice-Chancellor seems to have felt in this
Ky^' case, was, that if he, as a special juryman, had been asked
''^ whether there was actually any intention on the part of the
settlor in this case to defeat, hinder, or delay his creditors, he
should have come to the conclusion that he had no such inten-
tion. With great deference to the view of the Vice-Chancellor,
and with all the respect which I most unfeignedly entertain
for his judgment, it appears to me that this does not put the
wl
FRAUDULENT CONVEYANCES
167
question exactly on the right ground ; for it would never be left
to a special jury to find, simpliciter, whether the settlor intended
to defeat, hinder, or delay his creditors, (without a direction from J^{^2m/-
the Judge that^if_the necessary effect of the instrument was to -
defeat, hinder, or delay the creditors, that necessary effect was "^'^''^i^^
to be considered as evidencing an intention to do so. A jury
would undoubtedly be so directed, lest they should fall into
the error of speculating as what was actually passing in the
mind of the settlor, which can hardly ever be satisfactorily
ascertained, instead of judging of his intention by the necessary
consequences of his act, which consequences can always be esti-
mated from the facts of the case. Of course there may be cases
— of which Spirett v. Willows, 3 D. J. & S. 293, is an instance —
in which there is direct and positive evidence of an intention
to defraud, independently of the consequences which may have
followed, or which might have been expected to follow, from
the act. In Spirett v. Willows the settlor, being solvent at the
time, but having contracted a considerable debt, which would
fall due in the course of a few weeks, made a voluntary settle-
ment by which he withdrew a large portion of his property from
the payment of debts, after which he collected the rest of his
assets and (apparently in the most reckless and profligate man-
ner) spent them, thus depriving the expectant creditor of the
means of being paid. Jnthat case there was clear and plain evi-
dence of an actual intention to defeat creditors. But it is
established by the authorities that in the absence of any such
direct proof of intention, if a person owing debts makes a settle-
ment which subtracts from the property which is the proper
fund for the payment of those debts, an amount without which
the debts cannot be paid, then, since it is the necessary conse-
quence of the settlement (supposing it effectual) that some
creditors must remain unpaid, it would be the duty of the
Judge to direct the jury that they must infer the intent of the;
settlor to have been to defeat or delay his creditors, and that'
the case is within the statute.
The circumstances of the present £ase are these : The settlor
was pressed by his creditors on the 3d of March, 1863. He was
a clergyman with a very good income, but a life income only.
He had a life-annuity of between £180 and £190 a year, and
besides that he had an income from his benefice — his income
from the two sources amounting to about £1,000 a year. But at
the same time his creditors were pressing him, and he had to
168 PREREQUISITES TO ADJUDICATION
borrow from Mrs. Walpole, who lived with him as his house-
keeper, a sum of £350 wherewith to pay the pressing creditors.
That accordingly was done, and he handed over to her as security
the only property he had in the world beyond his life income
and the policy which is now in question, namely, his furniture,
and a copyhold of trifling value. It is said, however, that the
value of the furniture exceeded (and I will take it to be so)
by about £200 the value of the debt which was secured to Mrs.
Walpole. That debt may be put out of consideration, not only on
that account, but because Mrs. Walpole, being herself a trustee
of the settlement which is impeached, cannot be heard to com-
plain of that settlement. But he also owed at the time of this
pressure a debt of £339 to his bankers at Norwich, and he re-
quired for the purpose of clearing the pressing demands upon
him, not only the sum which he borrowed from Mrs. Walpole,
but an additional sum of £150, which sum the bankers agreed
to furnish, making their debt altogether, at the date of the execu-
tion of this settlement, a debt of £489. They made with him
an arrangement (which probably intended, in a great measure,
as a friendly act towards a gentleman who was seventy-three
years of age, and the duration of whose life, therefore, could
not be expected to be very long), that they would for the
present (for it cannot be held to be more than a present arrange-
ment) suspend the proceedings, which, it appears, they were
contemiplating, upon his allowing his solicitor to receive part
of his income, pay £100 a year towards liquidating the £489
(which was to be carried to what is called a "dead account")
and pay the residue into their branch bank at Aylsham, to an
account upon which the settlor might draw. That arrangement
was made, but there was no bargain on the part of the bankers
that they would not sue at any time they thought fit; and, on
the other hand, they had nothing in the shape of security for the
payment of their debt, for they had not taken out sequestration,
and there could be nothing in the shape of a charge upon the
living except through the medium of a sequestration. When the
settlor had made the voluntary assignment of the policy, he
stood in this position, that he had literally nothing wherewithal
to pay or to give security for the debt of £489, except the sur-
plus value of the furniture, which must be taken to be worth
about £200, and he was clearly and completely insolvent the
moment he had executed the settlement, even if we assume that
some portion of his tithes and of the annuity was due to him.
FRAUDULENT CONVEYANCES 169
It appears that a payment of the tithes was made in January,
and we cannot suppose that there was more owing to him than
the £200 which was paid in May, two months after the date of
the deed ; and if we add to that £200 as the surplus value of the
furniture, and add something for an apportioned part of the
annuity, the whole put t(^ether would not meet the £489. He,
in truth, was at that time insolvent ; and there I put it more
favourably than I ought to put it, because he could not at once
put his hands upon that sum, so as to apply it towards satisfy-
ing the debt, at any time between March and May. The case,--?
therefore, is one of those where an intention to delay creditors J
is to be assumed from the act. '
The Viee-Chancellor seems to have felt himself very much
pressed by the case of Spirett v. Willows, 3 D. J. & S. 293, 302,
and the dicta of Lord Westbury in that case. The first of those
dicta is: "If the debt of the creditor by whom the voluntary
settlement is impeached existed at the date of the settlement,
and it is shov^Ti that the remedy of the creditor is defeated or
delayed by the existence of the settlement, it is immaterial
whether the debtor was or was not solvent after making the
settlement." The Vice-Chancellor seems to have thought him-"'
self bound by this expression of opinion, and to have set aside
the settlement upon that ground alone. It is clear, however,--^
that this expression of opinion on the part of the Lord Chan-
cellor was by no means necessary for the decision of the case
before him, where the settlor was guilty of a plain and manifest
fraud. It is expressed in very large terms, probably too large ;
but at all events, it is unnecessary to resort to it in the present
case. It seems to me that the difficulty felt by the Vice-Chan-
cellor arose from his thinking that it was necessary to prove an
actual intention to delay creditors, where the facts are such as
to show that the necessary consequence of what was done was to
delay them. If we had to decide the question of actual inten-
tion, probably we might conclude that the settlor, when he
made the settlement, was not thinking about his creditors atl
all, but was only thinking of the lady whom he wished to bene- ;
--fhr, and that his whole mind being given up to considerations
of generosity and kindness towards her, he forgot that his
creditors had higher claims upon him, and he provided for her I
without providing for them. It makes no difference that Messrs. \
Gnrney, the bankers, seem to have been willing to forego the '
immediate payment of their debt ; the question is, whether they
170 PREREQUISITES TO ADJUDICATION
could not within a month or less after the execution of the settle-
ment, if they had been so minded, have called in the debt and
overturned the settlement?
Beyond all doubt they could, on the ground that it did not
leave sufficient property to pay their debt; and this being so,
we are not to speculate about what was actually passing in his
mind. I am quite willing to believe that he had no deliberate
intention of depriving his creditors of a fund to which they
were entitled, but he did an act which, in point of fact, with-
drew that fund from them, and dealt with it by way of bounty.
That being so, I come to the conclusion that the decree of the
learned Vice-Chancellor is right. * » *
Sir G. M. GIFFARD, L. J. In this case 1 quite agree with the
Vice-Chancellor in thinking that if the propositions laid down in
Spirett V. Willows are taken as abstract propositions, they go too
far and beyond what the law is ; but if they are taken in connec-
tion with the facts of that case, then undoubtedly there is abun-
dantly enough to support the decision, for there was a voluntary
settlement by a man who, at its date, was solvent, but immediately
/ / I afterwards realized the rest of his property and denuded himself
of everything.
Of course the irresistible conclusion from that was, that
the voluntary settlement was intended to defeat the subsequent
creditors. That being so, I do not think that the Vice-Chancellor
need have felt any difficulty about the case of Spirett v. Wil-
» ; lows, but he seems to have considered, that in order to defeat
Ija voluntary settlement there must be proof of an actual and
|( express intent to defeat creditors. That, however, is not so.
There is one class of cases, no doubt, in which an actual and
express intent is necessary to be proved — that is, in such cases
as Holmes v. Penney, 3 K. & J. 90, and Lloyd v. Attwood,
3 De G. & J. 614, where the instruments sought to be set aside
were founded on valuable consideration; but where the settle-
ment is voluntary, then the intent may be inferred in a variety
of ways. For instance, if after deducting the property which
is the subject of the voluntary settlement, sufficient available
assets are not left for the payment of the settlor's debts, then
the law infers intent, and it would be the duty of a Judge, in
leaving the case to the jury, to tell the jury that they mi^st pre-
sume^ that that was the intent. Again, if at the date of the
settlement the person making the settlement was not in a posi-
FRAUDULENT CONVEYANCES 171
tion actually to pay his creditors, the law would infer that
he intended, by making the voluntary settlement, to defeat and
delay them.
Now, in this case, at the date of the settlement, Mr. Custance
was really insolvent; and if at the date of the settlement the
bankers had insisted on payment, and had issued execution,
they could not have got a present payment unless they had7
resorted to that particular policy. That being so, it seems to 1
me that the facts of this case bring the matter entirely within I
all the decided cases, and it is enough to say that at the date ;
of this settlement Mr. Custance was not in a position to make'
any voluntary settlement whatever. "^
That being so, the appeal must be dismissed, and dismissed
with costs, as I can see no reason for saying that the decree was
not right in giving the whole costs of the suit. There was,
previously to this case, a decision by Viee-Chancellor Kindersley
(Jenkyns v. Vaughan, 3 Drew. 419), laying down the rule that
where a subsequent creditor institutes a suit and proves the
existence of a debt antecedent to the settlement, he can maintain
a suit such as this, and therefore it is not a new case. There
can be no reason for doubting the correctness of that decision,
either in point of principle or justice.*^
In re JOHNSON— GOLDEN v. GILLAM
20 Ch. D. 389
(Chancery Division. December 13-15, 1881)
This was an action to set aside a deed of gift as fraudulent
and void under the statute 13 Eliz. c. ^5! ~
The deed of gift was dated the 12th of June, 1878, and wit-
nessed that in consideration of the natural love and affection of
Judiths Johnson, widow, towards her daughters Alice and Amy,
and of the covenants thereinafter contained, the said Judith
Johnson granted a farmhouse and premises in Trunch, in the
county of Norfolk, to Stephen Gillam and his heirs, as to one
moiety to the use of her daughter Alice, and as to the other
moiety to the use of her daughter Amy, and assigned the crops
of the farm as to one moiety in trust for Alice, and as to the
other moiety in trust for Amy. And Alice and Amy covenanted
13 — See also In re Lane-Fox
(1900), 2 Q. B. 508.
172
PREREQUISITES TO ADJUDICATION
^ . jthat they, or one of them, would ' 'pay all the just debts incurred
v^^^^^J^^ V^y th® said Judith Johnson up to the date of the said indenture
in connection with the working and management of the said
farm," and would maintain the said Judith Johnson during
her life, providing her with a home, food, clothes, and medical
or other attendance in such style or manner as she had been
theretofore accustomed to.
This deed of gift, which was executed by Judith Johnson and
Alice Johnson, was a conveyance of all the property of Judith
Johnson.
The plaintiff was a creditor of Mrs. Johnson at the date of
the deed for £120. This debt was not incurred by Mrs. John-
son, but by William Johnson, her predecessor in the farm, and
she had adopted it by giving a promissory note for the amount.
Evidence was offered that there were other creditors of Mrs.
Johnson besides the plaintiff, who were not provided for by the
deed, but the court held that none of these debts were proved
to have been incurred for purposes unconnected with the farm.
The state of the family of Judith Johnson when the deed was
executed was as follows: Judith Johnson was the widow of
William Johnson, who had previously been the husband of her
sister, and had had by her a family of whom one son, James,
was living. After his first wife's death William Johnson had
gone through the ceremony of marriage with Judith Johnson,
his deceased wife's sister, and had a family by her, of whom
George, Arthur, Alice, and Amy were living. William Johnson
had provided for his children, other than Alice and Amy, out
of other property, and shortly before he died he granted the
Trunch farm — the subject of this litigation — by deed of gift to
Judith Johnson, in consideration of her covenant "to pay all
debts incurred by William Johnson in connection with the work-
ing and management of the farm, and all liabilities that he
might incur for means of living, medical attendance, and ex-
penses of a like nature."
George and James Johnson were living away from the farm,
Arthur lived with his mother, Mrs. Johnson, till 1877, when he
left, and, Mrs. John being then bedridden, the farm was carried
on by Alice, the elder daughter, and Amy (who was an infant
at the date of the deed), with the assistance of the Defendant
Gillam. Gillam made them advances of money from time to time
for the purchase of cattle and stock, and repaid himself out of
the produce. The plaintiff claimed to set aside the deed to the
FRAUDULENT CONVEYANCES 173
defendant as fraudulent against himself and the other creditors
of Mrs, Johnson.
FRY, J,, after stating the effect of the deed, said :
It is clear that the consideration for the deed of the 12th of /
June, 1878, was in part meritorious and in part valuable. The/
question before me is whether the deed is void against creditors;
under the statute of 13 Eliz., c. 5.
For the purpose of deciding this, it will be convenient and
proper to refer to the material words of the statute, and I find
these sufficiently stated in a passage of the judgment of Sir
Thomas Plumer, when Vice Chancellor, in Copis v. Middleton
(2 Madd. 410). He says (2 Madd. 427), ''The preamble of the -
act is, for the avoiding and abolishing of feigned, covinous, and
fraudulent feoffments, as well of lands and tenements as of goods
and chattels, devised and contrived of malice, fraud, covin, col-
lusion, or guile, to the end, purpose, and intent to delay, hinder,
or defraud creditors and others of their just and lawful actions,
suits, debts, etc., not only to the let or hindrance of the due
course and execution of law and justice, but also to the over-
throw of all true and plain dealing * * * between man
and man, without which no commonwealth or civil society can
be maintained or continued. A conveyance, therefore, (the Vice-
Chancellor continues), to be affected by this act, must be shewn
to be feigned, covinous, and fraudulent, and made with an intent
to delay, hinder, or defraud creditors: But if this case were
held to be within the statute, it would be the overthrow of all
true and plain dealing and bargaining between man and man;;
for, as a purchaser cannot know the circumstances of the ven-j
dor, it would prevent all dealing and bargaining between mani
and man, and counteract the object of the statute. The statut^
in order to prevent this inconvenience, has by the 6th section
provided that the act shall not extend to any conveyance upon
good consideration and bona fide to any person not having at
the time of such conveyance any manner of notice or knowledge
of such covin, fraud, or collusion. A conveyance, therefore, can-
not be invalidated by this act if there has been a bona fide pur-
chaser. ' '
In Thompson v. Webster (4 Drew. 628), . Vice-Chancellor
Kindersley said (4 Drew. 632), with regard to the general prin-
ciple of the act, "The principle now established in this. The
language of the act being that any conveyance of property is
174 PREREQUISITES TO ADJUDICATION
void against creditors if it is made with intent to defeat, hinder,
or delay creditors, the court is to decide in each particular case
whether on all the circumstances it can come to the conclusion
that the intention of the settlor in making the settlement was to
defeat, hinder, or delay his creditors."
r^t is obvious that the intent of the statute is not to provide
/equal distribution of the estates of debtors among their cred-
(itors — there are other statutes which have that object; nor is it
the intent of this statute to prevent any honest dealing between
one man and another, although the result of such dealing may
be to delay creditors. And cases have been cited accordingly
where deeds of this nature have been held good, though the re-
sult of them has been that creditors have been not only delayed
but excluded.
j— The effect on a deed of this sort of its being for good consid-
^ eration is very great. It does not necessarily shew that the deed
may not be void under the statute, because in many cases good
consideration has been proved, and yet the object of the deed
has been to defeat and delay creditors ; such has been, therefore,
for an unconscientious purpose, and the fact that there has been
good consideration will not uphold the deed. But nevertheless
it is a material ingredient in considering the case, and for very
obvious reasons: the fact that there is valuable consideration
shews at once that there may be purposes in the transaction other
than the defeating or " delaying of creditors, and renders the
case, therefore, of those who contest the deed more difficult. In
the case of Harman v. Richards, the Lord Justice Turner, then
Vice-Chancellor, makes this observation (10 Hare, 89) : "It re-
mains to be considered whether the settlement which was thus
made for valuable consideration Avas also made bona fide, for a
deed, though made for valuable consideration, may be affected
by nvala fides. But those who undertake to impeach for mala
fides a deed which has been executed for valuable consideration,
have, I think, a task of great difficulty to discharge."
Lord Hatherley, when Vice-Chancellor, adopted the same view
in the case of Holmes v. Penney (3 K. & J. 90), which has been
discussed before me, and the same point was stated with even
more force by Lord Justice Giffard in Freeman v. Pope (Law
Rep. 5 Ch. 538). He said in that case (Law Rep. 5 Ch. 544),
"I do not think that the Vice-Chancellor need have felt any
difficulty about the case of Spirett v. Willows (3 D. J. & S. 293),
but he seems to have considered that in order to defeat a volun-
FRAUDULENT CONVEYANCES 175
tary settlement there must be pr(X)f of an actual and express
intent to defeat^creditors. T^at, however, is not so. There is
one class of cases, no doubt, in which an actual and express
intent is necessary to be proved, that is in such cases as Holmes
V. Penney (3 K. & J. 90), and Lloyd v. Attwood (3 De G. & J.
614), where the instruments sought to be set aside were founded
on valuable consideration; but where a settlement is voluntary,
then the intent may be inferred in a variety of ways, ' ' I there-
fore proceed to inquire, looking to all the circumstances of the
case and at the nature of the instrument itself, whether I can or
ought to infer an intent to defraud creditors in the parties to the
deed. I say in the parties to the deed, because it appears to me
to be plain that whatever fraudulent intent there may have been
in the mind of Judith Johnson, it would not avoid the deed
unless it was shewn to have been concurred in by Alice, who
became the purchaser under the deed. It has not been con-
tended, and it could not be contended, that the mere fraudulent
intent of the vendor could avoid the deed, if the purchaser
were free from that fraud.
[HIS LORDSHIP then adverted to the provision which had
been made before the date of the deed for the other children of
Judith Johnson, and continued : — ]
Having regard to the condition of the family, the deed was a"
highly proper one; the sons had left the home, and were pro-
vided for by the dispositions which their father had made of the .
residue of his property ; Mrs. Johnson was possessed of this farm
and of nothing else; the two single daughters living with her
must have been objects of her anxiety and care; she was bed-
ridden and not likely to recover; the farm was practically car-
ried on by Alice. Thereupon this deed was executed with the
obvious intention of making over to the daughters that farm
which their mother hoped they would reside on after her decease,
to avoid the heavy succession duty which would ensue if she
allowed the farm to pass to them under her will, they not being
legally her children, but strangers to her. The deed is, I ot)t
serve, framed on the model of the previous deed, which had)
been executed by her husband on his death-bed.
Now, it is important to inquire what was the indebtedness of
Mrs. Johnson when she executed the deed. She appears to have
had some current debts, mostly, if not entirely, in respect of the
farming business. She owed a Mr. Simpson, a witness in the
.^i
176 PREREQUISITES TO ADJUDICATION
case, an account for saddlery, the whole of which (with possible
one unimportant exception) was due in respect of the carrying
on of the farm. She owed her sister Sarah Golden £80, and I
cannot infer that that money was borrowed for any other pur-
pose than carrying on the farm, because it is for the plaintiff
to shew that that was so, and he has had Sarah Golden in the
box and has not asked her anything about it. The sum of £120
was owing from Judith Johnson to her brother William Golden,
the plaintiff. That sum was borrowed by William Johnson, and
when she became the owner of the farm she adopted the debt by
executing a promissory note, and there was a mortgage debt
upon the farm, which had also been a debt of William Johnson.
It appears by the evidence that Mrs. Johnson was a person of
good repute among her friends, as a respectable and honest
woman, who paid her way, and was in no difficulty. Beyond
what I have mentioned she does not appear to have owed any-
thing except ordinary current debts, and was not pressed by a
single creditor. That was the state of things when this instru-
ment was executed. One other fact I must mention with regard
to the state of the family, which is this, that litigation had been
going on which led to some alienation of feeling between Mrs.
Johnson and other members of the family, and which made it
more natural that she should desire the whole of this farm to
go for the benefit of her two daughters. Mr. Gillam appears to
have been the most natural person to select as trustee of the
deed, if the purpose of the parties was honest and fair. From
what I have seen of him, I do not believe he is a person who
would have been a party to a deed which was intended to be
I kept secret, or to be entered into for the purpose of fraud. I
think his selection as trustee is an indication of the good faith
with which the transaction was conceived.
With regard to what took place under the deed, it appears to
me that there was neither concealment nor publication. Mrs.
Johnson's name continued to be used as before with regard to
the farm. The daughter continued to make the payments, and
there was no material change in the way that things were car-
ried on.
/ The circumstances, looked at independently of the result of
/ the deed, therefore lead me to the conclusion that the intention
of the parties was to make a perfectly honest family arrange-
ment, under which the daughters were to undertake the burden
tj^\- "V of the parties was to make a perfectly honest family arrange-
kjijT ment, under which the daughters were to undertake the burden
^^ \of paying their mother's debts, and in consideration of that, to
FRAUDULENT CONVEYANCES 177
take immediately that farm which in all probability they would
otherwise have received by will upon their mother's death.
Then it is said, and said truly, that a person must generally
be taken to intend the result of his acts. That is often, but by
no means always, true, because, although no doubt the immediate
and main result of our acts must be the object of our intention,
there are many collateral results of acts which are not only not
objects of our intention, but against our wish. There are many ^
.unintentional results of intentional acts^ The operation of the
deed, it is said in this case, was to defeat and delay creditors,
therefore it is said that that must have been intended. That
argument has been presented in two ways. In the first place it
has been observed that the deed contained a provision only for
the payment of creditors whose debts had been contracted in
connection with carrying on the farm : It is said that there must
have been debts of other descriptions, and that there was in fact
one debt at any rate of another description. But it does not
appear to me to be shewn that that debt was present to the mind
of the settlor, Mrs. Johnson, or to the mind of her daughter;
and nothing is more probable, if I were to speculate upon the
intention, than that Mrs. Johnson, having adopted the debt of
WiUiam Johnson, after a deed conceived in similar terms, would
have anticipated that her daughters must in like manner adopt
the debt of their uncle under this deed. It appears plain from
the case of Holmes v. Penney (3 K. & J. 90), that the mere fact
of a bona fide creditor being defeated is not of itself sufficient
to set aside a deed founded on valuable consideration. In this^
case, if I uphold the deed, it seems probable that the plaintiff i
will have no remedy in respect of his debt. In that case, by up-
holding the deed, the plaintiff was excluded from all remedy in
respect of his debt, and that debt must have been plainly present
to the mind of the settlor, but the Vice-Chancellor thought that
the only object of the brother, who was the purchaser of the
estate, was to make an honest family arrangement with regard
to it. So it appears to me, in the present case, that the object jifj^,, ^^1
of the mother and daughters was to make an honest family set- / r~
tlement of the property.
Then again it is said that with respect to many creditors who
are included in the covenant, they are defeated and delayed, be-
cause before the execution of the deed they had a right against
the property, and after the execution of the deed they would
only have a right to the enforcement of the covenant. But that
H. & A. Bankruptcy — 12
178 PREREQUISITES TO ADJUDICATION
is the result of almost any dealing. If I am indebted and sell
my estate, my creditors lose their right of proceeding against
the estate, and can only proceed against the purchase money.
So in a variety of cases visible chattels or real estate are con-
verted into chases in action, and if creditors could complain of
that it would, as Sir Thomas Plumer pointed out, ' ' restrain hon-
est dealings and transactions between man and man."
There is only one other point on which I wish to observe,
although it has not been put to me. It appears plain, that though
valuable and good consideration was given by the daughters, that
consideration cannot have been the full value of the estate. But
it also appears to me to be plain that when a h(yna fide and hon-
est instrument is executed for which valuable consideration is
^ given, and the instrument is one between relatives, the court
cannot say that the difference between the real value of the estate
and the consideration given is a badge of fraud, and if it is not
abadge_ofJ^raud, or evidence of an intention to defeat creditors,
IjjTiasiio relation to the case. »t •?;« m
I have come, therefore, to the conclusion upon the whole of
the case, that the instrument impeached was executed in good
faith and for a valuable consideration, that it was an honest
family arrangement, and was executed without any intention to
defraud or delay creditors. That being so, I dismiss the action
with costs. f^X}^ ' ij^*^ *^ *iKi;T> v. '.;i 'i'>,f <'»i> '. ;
.}r*^ V^ .!^ CRUMB AUGH v. KUGLER
^^!> -' T ^ ^^' ^^' ^'^^
3w^ t/>-^ (Supreme Court of Ohio. December Term, 1853)
fyf^ CALDWELL, J. This is a bill filed by the creditors of Mat-
thias Kugler, the principal object of which is to set aside cer-
tMnconveyances made by him to his children in March, ISiT.
At the time of these conveyances, Matthias Kugler was pos-
sessed of property (according to the estimate of the master to
whom this case was referred) of the value of $176,540.65, and
was indebted to the amount of $98,327.86. About $146,000 of
the property consisted of real estate — on which were several
mills and distilleries. On the 13th of March, 1847, Matthias
Kugler conveyed to different members of his family what in the
aggregate amounted to $105,674.74. On the property thus con-
veyed, over $40,000 of Kugler 's indebtedness was secured by
FRAUDULENT CONVEYANCES 179
mortgage — the grantees took the property subject to the liquida-
tion of these incumbrances. Schultz and Kugler, two of the
grantees, also executed a mortgage to Matthias Kugler, Sen., to
secure the payment of about $15,000 more of the indebtedness.
The amount of Kugler 's indebtedness intended to be secured hy^
this family arrangement amounted to about $55,800. The
amount of Kugler 's indebtedness left wholly unprovided for by
the arrangement, is stated by the master in the alternative ; upon /
one hypothesis, it amounts to $42,599.55, and on the other to|
$47,190.05.
The master estimates the property retained by Kugler, at the
time of the conveyance to his family, at $70,837.93; the real
estate he values at $51,152, and the personalty at $19,685.93.
This estimate, the master reports, is made by setting down to
Kugler 's sole account several tracts of land that had been con-
veyed to Kugler and wife, and stood in their names, and the
half of which, it is contended, belonged to Mrs. Kugler 's heirs.
Deducting the one-half of the value of the properly thus sit-
uated, the real estate retained by Kugler would amount, accord-
ing to the master's estimate, to $28,376^ and^ the' entire assets,
reaTand personal, retained, to $48,061.93. This latter the court
regard as the true estimate. The property in the joint names
of Kugler and wife, was the property that formerly belonged
to Mrs. Kugler 's father, Christian Waldsmith. On the death of
Christian "Waldsmith, Mrs. Kugler, as heiress, became entitled
to one-seventh. A petition was filed by some of the heirs for
partition ; Kugler and wife elected to take the property, and the
sheriff conveyed it to them jointly, on Kugler giving bond to
pay the other heirs. Although Kkigler may have considered this
property as his, and liable to the payment of his debts, yet Mrs.
Kugler had the legal title to the one-half by the conveyance,
and was the owner of one-seventh previous to that time. The
title had remained in their joint names since 1817, and we think
the one-half of the property belonged to Mrs. Kugler, and at
her death descended to her heirs, and could in no way be liable
for Kugler 's debts. Kugler continued, after the conveyances,!
to carry on an extensive business, until some time in 1849, when
he failed ; his mill and distillery were destroyed by fire, and he |
became largely insolvent.
It is said, on the part of the complainants, that these convey-
ances were fraudulent, as to the creditors of Matthias Kugler.
The first question that we propose to consider, is whether
180 PREREQUISITES TO ADJUDICATION
there was any actual fraud intended by Kugler in thus dispos-
ing of his property.
Wherever a person, largely indebted, gives away a large
amount of his property, witnout amply providing for the pay-
ment of his debts, a suspicion of fraud will generally attach to
the transaction. There are, however, connected with this case
many circumstances going to rebut any suspicion that fraud was
imtended. Kugler was engaged at the time in a very extensive
business; the arrangement does not appear to have been made
with any intention of stopping business, although the convey-
ance of this property necessarily curtailed his operations; for
two years after, however, he continued to operate extensively.
From the number and amount of his debts that he afterward
contracted, it would appear that he still had credit, and must
have been regarded as a responsible man.
After the conveyance, he commenced paying off his indebted-,
ness that existed at that time, and although the evidence does
not furnish us with any certain data on the subject, yet it
appears that he succeeded in paying off the principal part of
that indebtedness. The most of the debts that he now owes are
such as were contracted after the conveyance, or such as were
secured by it. It was very natural, considering the advanced age
of Matthias Kugler, that he should find it necessary to con-
tract his business. His sons and sons-in-law had been doing
business for him at his different milling and distillery estab-
jlishments. By making the conveyances as he did, he could free
himself from a large portion of his indebtedness, establish sev-
eral members of his family in business on their own account,
and free himself from the harassing care of such an extensive
j and complicated business. He acted as if he intended to retain
Vthe property reserved; he says in his answer, that he intended
the Germany property at his death for his son Jacob; his con-
duct accords with this statement; no conveyance is made to
Jacob, and he enters into partnership with him.
^ It may be said, however, that Matthias Kugler gave away too
imuch of his property, considering the amount of his indebted-
ness. In reference to this, we would say, in the first place, that
from the manner in which Mr. Kugler obtained and used the
property, and treated it, that he made no distinction between
that which stood in the names of himself and wife jointly, and
FRAUDULENT CONVEYANCES 181
his other property, and regarded it as liable to the payment
of his debts; which opinion, although erroneous, would lead
him to believe that he had retained for the payment of his debts
more than twenty thousand dollars' worth of property, above
what he really had. But, supposing we are mistaken in this
supposition, still the amount of property retained that abso-
lutely belonged to Matthias KHigler is valued at more than all
his indebtedness. A part of this property consisted of a mill
and distillery which Kugler had been carrying on for many
years; if his business in future should be profitable, he would
be able to pay his debts, and he no doubt continued it in the
expectation that it would be so. Kugler 's conduct and busi-
ness transactions, after these conveyances were made, show that
they were not made with any intention of suspending business;
on the contrary, they show that his business, although disas-
trously, was vigorously pursued, and he only suspended when
he was compelled to do so. We think from the whole facts in
the case, that although, as future events proved, this family
arrangement was improvidently made, yet that no actual fraud
was intended at the time it was consummated, on the creditors
of M. Kugler, Nor is there any circumstance to induce the belief
that any fraud was intended as to subsequent creditors.
But, although we do not think that any fraud was intended
by the parties to these conveyances, the question still remains,
whether they operated to the prejudice of creditors.
These several conveyances must be considered in the light of
gifts. It is true, that part consideration was received in most
of the cases; yet we think that does not change the character
of the transaction. Although other motives no doubt induced
the arrangement, yet the ruling object was to make an advance-
ment to the several grantees. Now, a man largely indeBted, as
Kugler was, can not make a gift of his property without the
most careful regard to the rights of his creditors. And such
gift is never upheld, unless property, clearly and beyond doubt,
is retained sufficient to pay all the donor's debts. See King's
Heirs v. Thompson and wife, 9 Peters, 220 ; Salmon v. Bennett,
1 Conn. 543; Jackson v. Peck, 4 Wend. 303; Hinde v. Long-
worth, 11 Wheaton, 199; Seward v. Jackson, 8 Cow.; Jackson
V. Form, 4 Con. 604; Gale v. Williamson, 8 Mees. & Welsby,
409 ; Seward v. Vanwyck, 1 Edw. Ch. 334 ; Brackett v. Waite,
IT
/
182 PREREQUISITES TO ADJUDICATION
4 Vt. 389; Usher v. Hazletine, 5 Greenl. 474; Chambers v.
Spencer, 5 Watts, 404 ; Morteer v. Hissim, 3 Penn. 165 ; Wallace,
108 ; Lessee of Burget v. Burget, 1 Ohio, 482 ; Brice v. Meyers,
5 Ohio, 124 ; Lessee of Douglass v, Dunlap, 10 Ohio, 162 ; Miller
V. Wilson, 15 Ohio, 114 ; Tremper v. Barton, 18 Ohio, 423 ; Creed
V, Lancaster Bank, 1 Ohio St. 1.
Now, how was it in this case? The property retained by
Kugler, liable to the payment of his debts, amounted to about
$48,000. His debts, at the lowest calculation, amounted to
$42,000, and they probably amounted to $47,000. But taking
the amount of indebtedness at the lowest estimate, $42,000, and
experience teaches us that, owing to the expenses incident to
the sale, and the sacrifice almost universally attending forced
sales, the amount of property reserved would not have paid the
/'debts, if subjected to that purpose. Kugler, then, not having
/ reserved property clearly ample to pay his debts, was not in a
(situation to make the gifts good, and the conveyances, as to all
debts in existence at the time of their execution, must be held
as of no effect.
The next question that arises in the case is, whether the con-
veyances not being good as to the prior creditors, the subsequent
creditors can avail themselves of that objection?
Now, we have previously determined, that these conveyances
were made without any intentional fraud as to either prior or
subsequent creditors. If Kugler had not been in debt, he would
have had a perfect right to distribute his property amongst his
children; no person could have objected. No policy of law,
or principle of justice, would have been violated; his gift of
his property would have been as valid as a sale. It is only be-
cause that, being in debt, he is bound in good faith to have a re-
gard, in the disposition of his property, to the just claims of his
creditors — to regard the obligation which he has incurred to
them — that any objection can be made to the transaction. This
principle does not apply at all to the subsequent creditors ; lEey
give credit to their debtor as he is — for what he has, not for what
he once had. We must then regard the conveyances, as to subse-
Iquent creditors, and all persons other than the creditors, then
loccupying that relation, as good. See United States Bank v.
Housman, 6 Paige Ch. 535; Saxton v. Wheat., 8 Wheat. 229;
Hinde v. Longworth, 11 Wheat, 199 ; Parker v. Proctor et al., 9
FRAUDULENT CONVEYANCES
183
f
Mass. 374, 4 Wash. C. C. 137 ; Lush v. Wilkinson, 5 Vesey, Jr.
387 ; 9 Peters 220, 12 Vesey, Jr. 155. * • *
Decree for complainants.^* -
CHURCH V. CHAPIN j^^^^ ^
35 Vt. 223 t^lju^^ ?H-«-*'t ^ ^
(Supreme Court of Vermont. February Term, 1^62) ii^^^^y
Eip.ctmeTit. The plaintiff claimed title under a warranty deed (?.a^cC» uI
from one Fortin Church to him, dated October 29th, 1855. ^^^wt^'Jf-su
The defendant offered in evidence certified copies of the^
record of a judgment in favor of one Deborah Church against *^'^*-*^
Fortin Church, rendered in 1858, for $524.50, for which sum
execution issued May 4th, 1858; also, a copy of this execution
and the officer's return thereon, showing a levy of the same
upon the premises in question; also, a warranty deed from
Deborah Church to the defendant, Chapin, dated April 4th,
1859, to all of which the plaintiff objected, but the court ad-
mitted them, and the plaintiff excepted.
It appeared in evidence that at the date of the deed from
Fortin Church to the plaintiff, Fortin Church was a single man,
without issue, and of about sixty-four years of age ; that at the
time of the execution of the deed, Fortin Church also executed,
under seal, a bill of sale to the plaintiff of all his personal
property, except clothing, cash on hand and debts due; and at
the same time the plaintiff executed to Fortin Church a mort-
gage deed of all the real estate described in the deed of Fortin
Church to the plaintiff, conditioned for the payment of certain
debts of Fortin Church, amounting to about $850, for the pay-
ment to certain nephews and nieces of the said Fortin (twenty-
eight in number), of $100 each, and for the maintenance, care
and support of the said Fortin Church during his natural life.
The plaintiff was a nephew of Fortin Church, and immediately
took possession of the personal property conveyed, and entered
upon the support of Fortin Church. The conditions named in
the mortgage constituted the consideration of said conveyance.
There was no provision that the plaintiff should pay the debt of
/
14— See 20 Cyc. 453-461, for ref-
erences to many cases involving the
same or similar questions.
184 PREREQUISITES TO ADJUDICATION
Deborah Church, nor any evidence that the plaintiff or Fortin
Church at the time of the conveyance supposed she had a debt
against Fortin Church; but they were both aware that she
claimed that Fortin Church was indebted to her, and that was
a subject of conversation between Fortin Church and the plain-
tiff at the time.
It appeared that said judgment was recovered for the per-
sonal services of Deborah Church for Fortin Church as his house-
keeper from 1850 to the spring of 1855 ; that Deborah was a
single woman of between fifty and sixty years of age, without
any other home, and that the plaintiff, though knowing to the
fact of Deborah Church's working for Fortin Church, supposed
that she was making it her home with her brother, Fortin
Church, and did not suppose that she was at work for pay.
iThere was no evidence tending to show that said conveyance
Iwas made for the purpose of defrauding Deborah Church, or
[that there was any intentional fraud on the part of the plaintiff
lor Fortin Church.
The plaintiff offered evidence to prove that at the time of
the conveyance to him no actual indebtedness to Deborah
Church from Fortin Church existed, to which the defendant
objected. The court rejected the evidence, to which the plaintiff
excepted.
It appeared in this connection that Deborah Church 's suit was
commenced in August, 1856, and was defended throughout by
the plaintiff, as agent of Fortin Church, and in consequence of
his taking the conveyance of Fortin Church's property.
It appeared that at the time of the conveyance from Fortin
Church to the plaintiff, the cash on hand and debts due, reserved
by Fortin Church, in said bill of sale, consisted of $100 cash on
hand, a debt of about $200 against one Bardwell, of Walpole,
New Hampshire, a note of $75 against James Church, of
Townshend, Vermont, notes against the Stones, of Westminster,
Vermont, of about $300, a note against one Sawtell, of Bellows
Falls, of about $400, and notes against men by the name of
Phillips, in the state of New York, then amounting to about
$1,100. All of these debts were considered good except the
note against Sawtell. The notes against the Phillipses were
secured by mortgage in New York, and were intended to be
made a gift to the sons of his sister, their mother, by Fortin
Church, and were soon after so disposed of. The plaintiff had
nothing to do with these debts due or cash on hand, except that
FRAUDULENT CONVEYANCES 185
it appeared that there were other debts against Fortin Church,
amounting to about $200, not mentioned in said mortgage, which
the plaintiff afterwards paid at Fortin Church's request, and
Fortin Church gave him notes sufficient to pay him for so doing.
It appeared that it was the understanding between the plaintiflf/
and Fortin Church that the plaintiff was to have all of Fortin/'
Church's personal property at Fortin 's decease, and they sup-
posed the last clause in the bill of sale was sufficient to convey
said debts and personal property at Fortin Church's decease.
The court intimated an opinion to the plaintiff's counsel that
the conveyance to the plaintiff by Fortin Church, being a dis-
position of his property to collateral relations, and to secure
his own maintenance, must be treated, in law, as a voluntary
conveyance, and that as the claim of Deborah Church existed
prior to the conveyance and was known to both parties, and
subsequently matured into a judgment after full defence made
by the plaintiff, it became conclusively, as to him, a prior \
existing debt of the grantor, which would render the conveyance
inoperative as to her, notwithstanding the plaintiff might have
acted in perfect good faith in the whole transaction, and that
the amount and kind of property retained by the grantor, as
above stated, could not be properly regarded as an ample pro-
portion of his estate for the security and indemnification of hi$
creditors, and that the title of Deborah Church thus acquired
must be regarded as paramount to that of the plaintiff. Where-
upon the court directed a verdict for the defendant, and the
plaintiff excepted to the foregoing decision.
PECK, J. The question in this case is which of these parties
acquired the better title from Fortin Church. The plaintiff
shows title by deed from Fortin Church, dated October 29th,
1855. The defendant shows title by levy of an execution in
favor of Deborah Church against Fortin Church, in 1858, for
between $500 and $600, issued on a judgment recovered in
1858, in a suit commenced in 1856, and by deed from Deborah
Church to the defendant, dated April 4th, 1859. Nothing
appears invalidating the deed to the plaintiff as against Fortin
Church. The question is whether it is good against his creditors,
or rather against the creditor under whose levy the defendant
claims. The case finds that in the execution of the deed to the
plaintiff there was no fraud in fact, or actual intent to defraud
creditors generally, or to defraud this particular creditor. A«-
186
PREREQUISITES TO ADJUDICATION
<>
suming for the present that Deborah Church was a creditor
of Fortin Church in respect of the debt or claim for which
she levied, at the date of Fortin Church's deed to the plaintiff,
the question arises whether upon the facts stated in the excep-
tions, the amount, nature and character of the consideration of
that deed was such as to render it valid against Deborah Church
as such creditor, or whether as to her and the defendant who
has her title, it is to be treated, as the county court treated it,
as a voluntary conveyance and inoperative against her levy.
On reference to the judge's minutes of the testimony referred
to, and the deed and bill of sale, it appears that the amount of
property conveyed to the plaintiff by Fortin Church on that occa-
sion was, in round numbers, from $7,000 to $10,000. Thejeonsid-
I eration for this property is all expressed in the mortgage deed
I from the plaintiff to Fortin Church, from which it appears that
j the plaintiff was to pay certain specified debts of his grantor,
1 amounting to about $850, and pay to the children of certain
\ persons named $100 each, as they should respectively arrive
\&t the age of twenty-one years, and also support Fortin Church
j during his natural life. It appears there were twenty-eight of
these children, who were the nephews and nieces of the plaintiff's
grantor. If the $850 and the $2,800 constituted the whole con-
sideration for this property, it would be regarded as so far
below the real value of the property as to render the conveyance
void as against existing creditors, on the ground of inadequacy
of consideration. A debtor cannot give away his property, ancl
there f)y deprive his creditors of all means of collecting their
debts. He must be just before he is generous ; or in other words,
he must not be generous at the expense of justice to his creditors.
If such is the effect the gift is void as to creditors. Nor can
this principle be avoided by having a partial consideration. In
such case the gift is equally void, at least to the extent of the
want of consideration. But in this case there 'IS'a 'fiirther con-
sideration, the agreement of the plaintiff to support the grantor
during life. The amount or value of this part of the considera-
tion is in its nature so uncertain, depending so much on future
contingencies, the duration of life and the future wants and
\requirements of the grantor, that it can not be assumed that
the consideration was inadequate in amount. The question
must turn upon the character of the consideration. The $850
which the plaintiff agreed to pay to the two creditors named in
th^ mortgage deed can not be objected to as to its character;
FRAUDULENT CONVEYANCES 187
and although the grantor in this disposition of his property
made no provision for the payment of the debt to Deborah
Church, she can not set aside that deed on the ground that the
grantor gave preference to other creditors. Whether the $2,800
the plaintiff agreed to pay to the collateral relatives of the
grantor should also be so considered, is not so clear. On the
one hand it may be said that although it was a gift as between
such relatives and the grantor, yet as between him and the
plaintiff it was to be a payment, and that the want of con-
sideration as between the plaintiff's grantor and the persons to
whom the grantor required the plaintiff to make the payment,
can not affect the deed. On the other hand it may be said that
as the plaintiff was a party to this arrangement by which this
grantor was giving away this portion of the consideration of the
deed, and not having paid or legally bound himself to the
donees to pay to them, he ought not to be allowed to stand
upon this agreement with the grantor, and thus perfect the gift
to the detriment of creditors, a gift which the grantor, as to
creditors, had no right to make. But we do not find it neces-
sary to decide whether this agreement to pay the $2,800 in the\
manner stipulated, is a good consideration to that amount as| ^
against creditors or ,not, because the remaining portion of thej '^^ f^'
consideration, the agreement for support for life, is not of suchj-sj^ >^ -
a character as will sustain the deed if the creditors are thereby ^'
deprived of the means of collecting their debts. It is true
that as between the parties to the deed it is a valuable con-
sideration, and in this respect a deed founded on it differs from
a gift; but as to creditors it is not different from a deed ofi
gift. It has long been settled that a party can not either by/
gift or in consideration of an agreement for support for life,|
convey his property without reserving what is amply sufficient^
for the payment of his then existing debts. If we allow the
plaintiff the benefit of the $850 and the $2,800, as a good con-
sideration to that extent, there is still, at the lowest estimate
of the property, between $3,000 and $4,000 of the consideration
accounted for in no other way than by the agreement for sup-
port. Where there is a partial, but not a full consideration
good against creditors, whether the deed is voidable in ioto, or
only to the extent of the want of consideration, is a question
not material in this case, as the amount of the consideration rest-
ing on the agreement for support exceeds the amount of the levy
in question. The levy must prevail over the deed, unless the
188 PREREQUISITES TO ADJUDICATION
property of the grantor not conveyed is sufficient to prevent
that result.
XK creditor has no right to impeach a conveyance of his debtor
/on the ground that it was voluntary, or without sufficient con-
/ sideration, unless it would operate, if allowed to stand, to his
\4etriment in the collection of his debt. The debtor is bound to
reserve property ample for the payment of his debts. Whether
the property reserved is what will be deemed ample for this
purpose, does not depend entirely on the amount and value, as
the real end to b€ accomplished is, that the deed or conxeyance
shall not deprive creditors of the means of collecting their debts.
Hence the nature and situation of the property is to be regarded
as well as the amount and value, in view of the facilities the
creditors have left for the collection of their debts. In this
case the debtor conveyed all his property except $100 cash on
hand, and debts due him. These debts amounted nominally to
$2,075, due from various individuals. The debt of $400 against
Sawtell may be thrown out, as Sawtell had failed and become
insolvent. This leaves the amount due the grantor $1,675.
In relation to the Phillips' debt of $1,100 and the Bardwell debt
of $200, the debtors resided out of this state, so that they could
not be reached by process in this state; as debts due from per-
sons residing out of the state are not attachable by trustee
process, except in some particular cases. The cash on hand
was in point of law liable to attachment if so situated that an
officer could obtain possession of it without committing a tres-
psiss on the person of the owner; but it is not probable that it
would be accessible for the purposes of attachment so as to be
available to a creditor, especially as the amount was so small.
Deducting the $400 debt as worthless, there was but $375 of
the debts reserved by the grantor that was attachable, and that
only by trustee process. The grantor owed about $200 besides
this debt for which the levy was made and the debts the plaintiff
agreed to pay. This $200 the plaintiff paid, and it was repaid
to him out of the debts the grantor reserved. There is another
fact stated worthy of consideration ; that is, at the time Fortin
Church made the conveyance in question, it was his purpose to
, give the $1,100 debt to certain collateral relations in the state
kof New York, where the debtor resided, and it was soon after so
disposed of. The bill of sale to the plaintiff also professed to
transfer all the personal property that Fortin Church might
own at his decease, and the parties so understood ite legal
FRAUDULENT CONVEYANCES 189
effect. The rule that a party who conveys his property without
sufficient consideration, such as will be valid against creditors,
must reserve property ample for the payment of his existing/
debts, is from its nature somewhat general and indefinite ; anc^
whether sufficient is reserved in a given case to answer this pur-
pose, depends, as already stated, on the amount and nature, in
connection with the character and situation, of the property in
reference to the facilities it affords the creditors for collecting^
their debts. We think upon all the facts appearing in this case
the conveyance must be regarded as invalid as against the lGvy-sj2^ ,
ing creditor, if she was a creditor at the time of this conveyance, ^^
in respect of this debt. This conclusion is the more just since
"it" appears that the grantee knew at the time he took the con-
veyance, that this creditor had rendered services for the grantor,
and that she claimed he was indebted to her for such services,
and yet he took the deed and bill of sale without any provision!
for the payment of this debt.
The only remaining question is whether the county court erred
in excluding certain evidence offered by the plaintiff. The case
states that "the plaintiff offered evidence to prove that at the
time of said conveyance to him, no actual indebtedness to said
Deborah Church from said Fortin Church existed" which was
excluded by the court. If this offer is to be construed as an
offer merely to show the time when the debt accrued, and that
it accrued subsequent to the conveyance, the decision was
erroneous, as the evidence would not necessarily tend to impeach
the judgment. A judgment, even between the same parties, is
conclusive only of such facts as must have been found to warrant
the judgment. This judgment may be correct, and yet the debt
not have existed till after the conveyance. But we do not so
understand the offer. The offer evidently was to show that no
debt ever existed on which the recovery was had, for the excep-
tions state that ii appeared that the judgment was recovered for
the services of Deborah Church (Fortin Church's sister) as his
house-keeper from 1850 to the spring of 1855. The deed was not
executed till October, 1855. The offer therefore must be under-
stood as an offer to show that the judgment was founded on no
actual^ indebtednesSj;_ and not an offer to prove that the debt
accrued after the conveyance. The evidence offered tended
directly to impeach the judgment. The judgment is clearly con-
clusive on this point upon Fortin Church. But in order to entitle
a creditor to impeach a conveyance of his debtor for want of
190 PREEEQUISITES TO ADJUDICATION
sufficient consideration where there is no fraud, it must appear
that he was a creditor, and a judgment in his favor against the
grantor is not conclusive against the grantee who is no party
to it. He may, as a general rule, show that the judgment was
collusive, and not founded on an actual indebtedness or liability.
But in this case the plaintiff can not be regarded as a stranger
to the judgment, as it appears that the suit was defended by this
plaintiff not only as agent of Fortin Church, but also in his own
behalf to protect the property conveyed to him by the defendant
in that suit. Under such circumstances the plaintiff can not be
permitted again to try the question of indebtedness. He is bound
by the result of that suit.
The judgment of the county court is affirmed.^**
C^^'^ It"^^^ ^^ GORMLEY V. POTTER
29 Oh. St. 597
(Supreme Court of Ohio. December Term, 1876)
Motion for leave to file a petition in error to reverse the judg-
ment of the District Court of Cuyahoga county.
The original petition was filed by Abel H. Potter and others,
judgment creditors of Patrick Gormley, against said Patrick and
Ann his wife, Edward Flynn, and the West Side Home and Loan
Association.
The plaintiffs below having recovered a judgment against Pat-
irick Gormley and one Edward Keegan, caused an execution
/ issued thereon to be levied on the real estate described in the
I petition.
The petition avers, in substance, that with intent to defraud
his creditors, Patrick Gormley had, previous to the levy, con-
veyed the premises to Edward Flynn, who, for the purpose of
consummating the fraud, conveyed the same to the wife of
Patrick. The West Side Home and Loan Association held a
mortgage on the premises.
The object of the petition was to have the conveyances from
Patrick to Flynn, and from Flynn to Patrick's wife, set aside,
and the property sold free from all claims on account thereof,
14a — See further "Walker v. Cady, v. Johnson, 70 Me. 258; Kelsey v.
106 Mich. 21, 63 N. W. 1005; Har- KeUey, 63 Vt. 41, 13 L. E. A. 640.
ris V. Brink, 100 Iowa, 366, 69 N. C/. Tibbals v. Jacobs, 31 Conn. 428.
W. 684, 62 Am. St. Eep. 578 ; Egery
FRAUDULENT CONVEYANCES 191
and to adjust the liens between the plaintiffs and the loan asso-
ciation.
The ease was taken to the District Court by appeal, where a
decree was rendered, granting the plaintiffs the relief prayed
for.
It is claimed that the petition is defective in not averring that
the judgment debtor had no other real or personal estate subject
to execution for the payment of the plaintiffs' judgment. ,
For this alleged defect, leave is asked to file a petition in error /
to reverse the judgment of the District Court.
WHITE, J. The ruling of the District Court is correct. The
mistake of the plaintiff in error is in regarding the original peti-
tion as in the nature of a creditor's bill to reach equities of the
judgment debtor.
The action is not founded on § 458 of the code. In order to
maintain an action under that section, it is necessary to aver that
the judgment debtor has not personal or real property subject
to levy on execution sufficient to satisfy the judgment.
The land in controversy was subject to levy on execution, and
the levy upon it was properly made. The conveyance to Flynn by
the judgment debtor, and by Flynn to the debtor's wife, having
been made with intent to defraud creditors, was, as against the
creditors, absolutely void. As respects the rights of creditors,
the land was still the property of the judgment debtor, and sub-
ject to execution as fully as if the conveyance had not been made.
The petition was founded upon the fact that the land had been
taken in execution, and had for its object the removal of the
cloud cast upon the title by the fraudulent conveyance. The
removal of this cloud was in the interest of both the debtor and
the creditors by enabling the property to be sold at a better price.
That a suit may be maintained for this purpose, has been several
times declared by this court. Sockman v. Sockman, 18 Ohio,
366 ; Beaumont et al. v. Herrick, 24 Ohio St. 455, 456.
Whether, at the time of making the conveyance, the debtor""]
retained sufficient property to satisfy his creditors, would be a /
proper subject of inquiry in determining the character of the ;
conveyance. ''
But if the conveyance is found to be fraudulent as to creditors,
and thus the property was properly taken in execution, neither
the debtor nor his fraudulent grantee can require the creditor
to abandon his levy, on the ground that the debtor has other prop-
192 PREREQUISITES TO ADJUDICATION
erty which might have been taken by the creditor. Westerman v.
"Westerman, 25 Ohio St. 500. Before a valid levy can be made
C on land, the goods and chattels of the judgment debtor subject to
( levy must be first exhausted by the officer having the execution.
This is averred to have been done in the present case before the
l^levy was made on the lands in controversy.
The case of Bomberger et al. v. Turner et al., 13 Ohio St. 264,
relied on by the plaintiff in error, was an action brought under
§ 458 of the code, to subject the equitable interest of the debtor
in certain lands which had descended to his heirs, to the payment
of a decree obtained against him in his lifetime. There had been
no levy in that case, and it was averred in the petition that the
conveyance was made in trust for the debtor. That case stands
on a different footing from the present, and is no authority
against the decision of the court below. * • *
Leave refused. , e . t\ . "Ly
^^y5l»>^ ^^ ^ ^ijpf^^ V. FREEMAN
^r><M><^,--*^^^^ 59 Ala. 612
Supreme Court of Alabama. December Term, 1877)
1^^^ 4i(^ Oil the 29th day of December, 1857, Fleming Fjreeman sold and
1^ A/^'iecuted to Joseph B. Bibb a deed of conveyance of twelve
{JT^ "(^ihundred and eighty-five acres of land situated in the county of
"^ ftyi^ Montgomery. The deed contained the usual covenants of war-
j^ ranty. The pursMser entered upon and took possession of the
^J\h^ ^/^remises, for which he paid nineteen thousand two hundred and
^\ _yjj^ seventy-five dollars.
^Jl^\\|4^ "About the 23rd day of November, 1859, one Jesse Boseman, as
X\jf^^^ the guardian of Daniel Flinn (a minor), instituted a suit in the
Circuit Court of Montgomery county against Joseph B. Bibb to
recover of him about eighty acres of land held by Bibb under
the deed of Freeman. Due notice of the pendency of this suit
was given to Freeman; and at the June term, 1868, of the
Montgomery Circuit Court, a judgment for the land and
damages for its detention, was rendered against Bibb. In Sep-
tember, 1869, Joseph B. Bibb made his will and died. By it
/ James M. Newman was named as executor. He accepted the
appointment and entered upon the discharge of his duties.
In the meantime Fleming Freeman had become totally in-
solvent, ""b-iry';^ ■~
FRAUDULENT CONVEYANCES 193
For the purpose of recovering damages for the breach of
covenants contained in the deed executed by Freeman to Bibb
on the 29th day of December, 1857, Newman filed a bill of com-
plaint in the Chancery Court of Talladega county on the 10th
day of July, 1872. The complainant sought to set aside the fol-
lowing deeds of conveyances^ and to subject the land ther^^
described to the payment of the said damages: -.
"The State of Alabama, Montgomery county. Know all men
by these presents, that I, Fleming Freeman, of the county and
state aforesaid, for and in consideration that David H. Remson
shall come and abide on my plantation, known as the Taylor
plantation, and plant a portion thereof under an agreement
made between the said Remson and myself, bearing date with
this instrument, and for the further consideration of good-will
and affection which I bear to said Remson and his family, give,
grant and convey unto said Remson the following described
lands, viz. : Southeast quarter of section twenty-two, southwest
quarter of section twenty-three, northeast quarter and southeast
quarter of section twenty-seven, and northwest quarter and
southwest quarter of section twenty-six — all in township sixteen
and range eighteen — to have and to hold the same to him, sub-
ject to the following conditions and trusts, viz.: During my
life I am to have the right to cultivate such portions of said
lands as is authorized under the agreement between said Remson
and myself as above named. After my death, the said David
H. Remson, should he survive me, shall hold the said lands dur-
ing his life-time for his own use and benefit, and at his death
the said lands shall be vested in Caroline N. Remson, wife of
said David H. Remson should she then be living, and all the
children of the said David H., excepting Charles F. F., and
Seaborn W., the oldest children of said Caroline N., for whom
other provision has been made. But should the said Caroline
N. not be living at the death of the said David H. Remson, then
the said lands shall vest in all the children of the said David
H. Remson, excepting the said Charles F. F. and Seaborn W.
"And I, Nancy Freeman, the wife of the said Fleming Free-
man, for the good-will and affection I bear to the said David
H. Remson and his family, do hereby relinquish all right of
dower in the real estate herein described, and hereby join in this
conveyance.
* * In witness of all of which, we the said Fleming Freeman and
H. & A. Bankruptcy — 13
194 PREREQUISITES TO ADJUDICATION
Nancy Freeman have hereunto set our hands and seals this
day of January, 1859.
"Fleming Freeman,
''Nancy Freeman."
"The State of Alabama, Montgomery county. By these pres-
ents, I, Fleming Freeman, and Nancy Freeman, wife of Fleming
Freeman, of the above state and county, do make this codicil to
a deed of gift made to David H, Remson, his wife, Caroline N.
Remson and children, bearing date January, 1859, and recorded
in the office of the judge of probate of said county on the 16th
day of May, 1859. One of the considerations of the deed of gift
as described above, requires the said Remson to live and abide
on the plantation, and to plant a portion thereof under an
agreement made between said Remson and myself, said agree-
ment bearing date with the deed of gift, thereby depriving said
Remson and family from moving or leaving said plantation, in
the event they should think proper to do so. Now, for the pur-
pose of securing the Taylor tract of land, as described in the
deed of gift, to the said Caroline Remson and her children by
the said D. H. Remson, we do hereby declare all articles of
agreement affecting or in the least detrimental to his interest or
her interest, null and void, and of no further value, and we do
furthermore, in consideration of the good-will and affection which
we bear to said Remson and family, give, grant and convey unto
Caroline Remson and children, the following described lands
as described in the deed of gift to said D. H. Remson and
family, viz. : Southeast quarter of section twenty-two, south-
west quarter section twenty-three, northeast quarter, southeast
quarter section twenty-seven, northeast quarter of southwest
quarter of section twenty-six — all in township sixteen and range
eighteen — to have and to hold the same during her life, and
after her death to the said D. H. Remson 's children. It is
furthermore expressly understood that this deed of gift is nol.
to take effect until after the death of myself and my wife, Nancy
Freeman. In fee simple whereof we have hereunto set our
Handstand seals, this ninth of May, in the year of our I^ord
one thousand eight hundred and sixty-four.
"F. Freeman (L. S.),
"Nancy Freeman (L. S.)."
I f At the time of the execution of the foregoing deeds, the
i grantor was not in debt, and possessed great wealth.
'' The chancellor, on the final hearing, dismissed the bill of com-
FRAUDULENT CONVEYANCES
195
plaint for want of equity. After the decree, and before an
appeal was taken, the complainant died. Mrs. Martha D. Bibb
was then appointed administratrix de bonis non, with the will
annexed. Upon her petition, the suit was revived, and an appeal
was taken to the Supreme Court.
BRICKELL, C. J. The law in this state is settled, that as
to (existing creditors) a voluntary conveyance by a debtor is by
presumption'"oilaw, absolutely void, though no fraudulent
intent is imputable to donor or donee, and though the donor
may have reserved from the conveyance property more than
sufficient for the satisfaction of all debts and demands against
him. Miller v. Thompson, 3 Port. 196; Foote v. Cobb, 18 Ala.
585 ; Gunnard v. Eslava, 20 Ala. 732 ; Thomas v. De Graffen-
reid, 17 Ala. 602 ; Moore v. Spence, 6 Ala. 506 ; Stiles & Co. v.
Lightfoot, 26 Ala. 443 ; Huggins v. Perrins, 30 Ala. 396. i^
15 — The same doctrine is estab-
lished in several other states. In
New Jersey — Gardner v. Kleinke,
46 N. J. Eq. 90; Horton v. Bam-
ford, 79 N. J. Eq. 356; in Ken-
tucky—Carrol's Stats. (1907)
§ 1907; in Virginia — Fink v. Denny,
75 Va. 663 ; in West Virginia —
Lockhard v. Beckley, 10 W. Va. 87.
This doctrine is founded upon the
decision of Chancellor Kent in Eeade
V. Livingston, 3 Johns. Ch. 481.
"It was at one time the rule that
a voluntary conveyance by one in-
debted at the time was fraudulent
as a matter of law towards his cred-
itors. No evidence was allowed to
rebut the presumption of fraud.
Beade v. Livingston, 3 Johns. Ch.
481, 8 Am. Dec. 120. This rule was
subsequently deemed to be too se-
vere by the courts, and the less
stringent rule was adopted that,
while a conveyance by a person in-
debted was presumptively and prima
facie fraudulent, the presumption
might be rebutted by proof to the
contrary. Seward v. Jackson, 8
Cow. 406. This presumption, how-
ever, is not to be overthrown by
mere evidence of good intent or
generous impulses or feelings. It
must be overcome by circumstances
showing on their face that there
could have been no bad intent, such
as that the gift was a reasonable
provision and that the debtor still
retained sufficient means to pay his
debts. He can no more delay his
creditors by such voluntary convey-
ance than he can actually defraud
them." Cole v. Tyler, 65 N. Y. 73,
78.
' ' To authorize the setting aside
of a conveyance as fraudulent, the
evidence must show that the grantor,
at the time of making it. did not
have enough other property subject
to execution to pay his debts, and
that the conveyance was either with-
out consideration, or that the
grantee accepted it with knowledge
of the grantor 's fraudulent purpose.
Pennington v. Flock, 93 Ind. 378.
The proof in this case, upon the
points above suggested, was unsat-
isfactory. Fraud is not presumed,
but must be proved by the party
alleging its existence." Andrews
V. Flanagan, 94 Ind. 383.
For citations of many cases on
196 PREREQUISITES TO ADJUDICATION
It is equally well settled, that a creditor within the statute
of frauds (Code of 1876, §2124), as to whom a voluntary
conveyance is void, is not necessarily one having a demand for
money which is due, or running to maturity, or one having an
existing cause of action. Whoever has, or may have a claim or
demand upon a contract in existence at the time the voluntary
conveyance is executed, is a creditor within the meaning of the
statute. Foote v. Cobb, supra. A contingent claim, is as fully
protected, as a claim that is certain and absolute. The cove-
nantee of a covenant of general warranty, who is evicted by a
title paramount and outstanding at the time the covenant is
entered into, is regarded as a creditor, not from the time of evic-
tion, but from the time the covenant was executed ; and a sub-
sequent voluntary conveyance, is, as to him, void. Gunnard v.
Eslava, swpra.^^
In the application of the principle that voluntary conveyances
are, as matter of law, conclusively presumed fraudulent and
void as to existing creditors, the definition of a voluntary con-
veyance must be steadily kept in view. It is a conveyance
founded merely and exclusively on a good, as distinguished
from a valuable consideration, on motives of generosity and
affection, rather than on a benefit received by the donor, or
detriment, trouble, or prejudice to the donee. If the donor
/receives a benefit, or the donee suffers detriment, as the con-
Isideration of the conveyance, the consideration is valuable, not
good merely. However inadequate such consideration may be
— however trivial the benefit to the one, or the damage to the
other, the conveyance is not voluntary. The inadequacy, is a
circumstance which with other facts, may impart an actual
intent to hinder, delay and defraud the creditors of the grantor,
but it does not change the character of the conveyance — does not
convert it into a voluntary conveyance. Bump on Fraud. Con.
262. The intent of the party making it, determines its validity
or invalidity, whatever may be its form, or the consideration
it recites. If he intends to give, and the donee accepts with
knowledge of the intention, the conveyance is voluntary. If he
intends to sell, and there is a valuable consideration, the con-
veyance is not voluntary. The true inquiry therefore is, was
the transaction in which the conveyance originates, a gift, or
above propositions see Bigelow, Fr. 16 — Cf. Evans v. Lewis, 30 Oh.
Conv. (Knowlton's ed.) 206, et seq. St. 11.
FRAUDULENT CONVEYANCES 197
a sale. Van Wyek v. Seward, 18 Wend. 386. In this case, a
conveyance was made by a father of real estate to his son, requir-
ing the latter to pay his sisters such an amount as the father
should decree their portion of his estate. Though the son by
accepting the conveyance, became liable to pay the daughters
the amount the father should declare, the conveyance was held
voluntary. The manifest intent of the donor was to dispose of
the lands to and among his children from motives of affection.
After a careful examination of the conveyance made by Free-
man, in January, 1859, to Remson, its^terins, limitations, and
conditions, and a consideration of the cotemporaneous agreement
to which it refers, so far as the contents of that agreement are
shown by the evidence, — of the relation of the parties, the cir-
cumstances surrounding them, when the conveyance was exe-
cuted, and their subsequent conduct in reference to it, we cftp jf^
discover no substantial ground on which the conveyance can be ^/f'*'
regarded as a sale, and not as a gift — as founded on a valuable
consideration, and not merely and exclusively on generosity and
affection. The element of value, which it is supposed entered
into the consideration, freeing the conveyance from the char-
acter of voluntary, is that it was made in pursuance of a promise
by the donor to give the lands to Remson, if the latter would
move from his residence in the county of Talladega, and reside
on the lands, cultivating them under the cotemporaneous agree-
ment to which reference has already been made.
It is often a matter of great difficulty, to discern the line
which separates promises creating legal obligations, from mere
gratuitous agreements. Each case depends so much on its own
peculiar facts and circumstances, that it affords but little aid
in determining other cases of differing facts. The promise, or
agreement, the relation of the parties, the circumstances sur-
rounding them, and their intent, as it may be deduced from
these, must determine the inquiry. If the purpose is to confer
on the promisee, a benefit from affection and generosity the
agreement is gratuitous. If the purpose is to obtain a quid 'pro
quo — if there is something to be received, in exchange for which
the promise is given, the promise is not gratuitous, but of legal
obligation. Erwin v. Erwin, 25 Ala. 241. In Kirksey v. Kirk-
sey, 8 Ala. 131, a brother-in-law, wrote to the widow of his
brother, living sixty miles distant, that if she would come and
see him, he would let her have a place to raise her family.
Shortly after, she broke up and removed to the residence of her
198 PREREQUISITES TO ADJUDICATION
brother-in-law, who for two years furnished her with a com-
fortable residence, and then required her to give it up. The
promise was held gratuitous, though the sister-in-law in conse-
quence of it had sustained the loss and inconvenience of break-
ing up and moving to the residence of the promisor. In For-
ward V. Armstead, 12 Ala. 124, a father residing in this state,
promised a son residing in North Carolina, to give him a par-
ticular plantation in this state, and slaves, if he would remove
to and settle upon it. The son was induced by the promise to
break up his residence in North Carolina at a loss, and was
put to expense and inconvenience in removing to this state. The
promise was declared gratuitous, and that the father could
not be compelled to perform it specifically. The inconvenience
and loss the son sustained, was insisted on as furnishing a valu-
able consideration for the promise. But the court said: "It
seems to us, that the expense incurred in a removal under such
inducements, does not furnish the test whether the engagement
is to be considered a contract, instead of a gratuity, because
expense, or at least trouble, which is equivalent to it, must
always be incurred ; but as we have before indicated, the test
is, whether the thing is to be paid in consideration of the
removal, instead of being given from motives of benevolence,
kindness, or natural affection."
The conveyance refers to the cotemporaneous agreement be-
tween the donor and the adult, active donpe who was free from
disability. It is shown that agreement was in writing, and has
been lost. Its terms according to the evidence of the donor,
and one of the donees, who are the only witnesses speaking of
them, were, that Remson should remain on the lands conveyed,
and superintend their cultivation, and that of two other planta-
tions, the property of the donor. The fact is not distinctly
stated, but it is of necessary inference from the facts stated that
each of these three plantations were supplied with hands and
every other necessary appliance for cultivation, the property
of the donor. To their cultivation, Remson was to contribute no
more than his personal services in superintending them. From
all three plantations he was to receive one-fifth of the products
of cultivation — receiving no more from the cultivation of the
lands conveyed, than from the plantations not conveyed. If
compensation was intended to be paid him for removing from
his home in Talladega to the lands conveyed — for loss and in-
convenience sustained in the removal — for personal services
FRAUDULENT CONVEYANCES 199
rendered, or to be rendered, it was to be derived from the
share of the products of the cultivation of the several planta-
tions, to which the agreement entitled him. We can not regard
these as forming part of the consideration of the conveyance of
the lands.
When the conveyance was executed, Remson was involved in
debt, and the donor was of ample fortune. A relationship existed
between them, the donor not having probably nearer relatives
than Remson and his family, and none so far as is shown, whose
condition appealed more strongly to his sympathy. The con-
veyance does not vest the right to immediate absolute posses-
sion until the death of the donor. At his death it confers on
Remson a life estate only, with remainder to his wife if she
survives him, and all their children except two, for whom other
provision has been made. The wife of the donor joins in the
conveyance for the purpose of releasing her contingent right
of dower, and the release is expressed to be in consideration of
good will and affection borne to said David H. Remson and
family. The whole scheme of the conveyance is testamentary.
We do not mean to say that it is a will, though it may closely
approach it — but it is a disposition by deed from motives of
affection, to take effect after the death of the donor. It has^H,
the elements, qualities, limitations and. terms to be found in. a
voluntary conveyance executed by parties sustaining the rela-
tions of the parties to it, surrounded by the circumstances sur-
rounding them, and but few, if any, of the elements of a sale
between parties contracting on a valuable consideration. We
repeat we cannot doubt it was founded on no other considera-
tion than love and affection — that the parties never thought of
buying and selling — and that the stress of subsequent and unan-
ticipated events, has induced them to suppose that there was
some other consideration for it than affection and benevolence.
Without closing our eyes to the truth of the transaction — to
the motives we irresistibly feel must have actuated the donor,
and to the intent of the parties collected from the circumstances
surrounding them, we cannot hesitate to pronounce the con-
veyance voluntary. It is consequently void as against the
appellant.
The decree of the chancellor is reversed and a decree here
rendered granting the complainant the relief prayed for. * * *
200 PREREQUISITES TO ADJUDICATION
BOOTHE
-Fr^-Z.. -^-^ .SHELLEY V
d^oS*-'^ - ^ k^' 73 Mo. 74
^>.¥^ (Supreme Court of Missouri. October Term, 1880)
NORTON, J. This is an action for the recovery of the posses-
sion of a stock of goods, on the trial of which defendant obtained
judgment, from which the plaintiffs have appealed. The stock
of goods in question had been seized by defendant, Boothe, as
sheriff of Jackson county, by the levy of a writ of attachment
sued out at the instance of J. W. Wood & Co., creditors of the
firm of Woy & Smith, as the property of said Woy & Smith.
Plaintiffs, after the goods were thus seized, brought this suit
and replevied the goods so levied upon. Plaintiffs base their
jh ^ claim to the goods on the ground that Woy & Smith, before the
' levy of the attachment sued out by Wood & Co., had transferred
the goods in payment of the debts of certain of their creditors,
of whom plaintiffs were one, and that under this transfer the
goods had been sold and bought by plaintiffs and the proceeds
applied to the payment of the debts of Woy & Smith. The
defendant, on the other hand, claims that said transfer was
made by said Woy & Smith with the intent and for the purpose
of hindering, delaying and defrauding said Wood & Co. in the
collection of their debt against said Woy & Smith, for the col-
lection of which they had a suit pending at the time of said
transfer, and that plaintiffs accepted the goods with knowledge
of these facts. The contest is virtually between two creditors of
Woy & Smith, and the evidence adduced on the trial tended to
establish each one of the above theories, and the only question
presented for our determination is, whether the court in giving
instructions properly declared the law.
The instructions given on behalf of plaintiffs recognize to the
fullest extent the doctrine that the debtor has a.cl£ar^aJid undis-
puted right to prefer one creditor to another, and apply his
property to the payment of one set of creditors to the exclusion
of other creditors, and when this is done in payment of hcma
fide debts the transaction will be upheld, although in doing so
the act of the debtor had the effect, and it was his intention, to
defer or hinder another creditor, who at the time had a suit
pending against him. While the instructions given on behalf
of the plaintiffs covered their theory of the case, those given for
defendant, especially the third, which authorized the jury to
FRAUDULENT CONVEYANCES 201
find for the defendant if they believed that at the time the goods
were transferred, plaintiffs were aware of the fact that it was
the intention of Woy & Smith, in making it, to hinder and delay
Wood & Co. in the collection of their debt, go farther, we think,
than the law warrants. The third instruction is as follows :\
'■*TF"Woy & Smith, in making the conveyance of the goods in yu^tJ^^^^
suit, intended to delay J. W. Wood & Co., their creditors, and
if the plaintiff, either by himself or his agent present at the
sale, was aware of such intent, then you will find for they
defendant. ' '
There is a class of cases to which the doctrine asserted in
the instruction applies; as, if one knowing of judgment and
execution against another, goes and purchases his goods in order
to defeat the execution, or if one knowing that a debtor is sell-
ing his property to hinder, delay or avoid the payment of his
debts, buys it, and pays the full value of it, thereby enabling
the debtor to carry out his fraudulent design, such sales will
be adjudged fraudulent because the purchaser becomes a par- rr _JLJ2j
ticipant in the iniquitous purpose of the debtor. But cases of^ Cbv^^\»»±» ^""^
this kind should not be confounded with those which. oiJy ^S^'i^j
amount to giving a preference of one creditor over another, v ' U
A debtor may give a preference to a particular creditor or set
of creditors by a direct payment or assignment, if he does so
in payment of his or their just demands, and not as a mere
screen to secure the property to himself. The pendency of
anbther creditor's suit is immaterial, and the transaction is
valid" though done to defeat that creditor's claim. Kuykendall
v. McDonald, 15 Mo. 416 ; Murray v. Cason, 15 Mo. 415 ; State
V. Benoist, 37 Mo. 500 ; Bump on Fraud. Con. 350, 351 ; Potter
V. McDowell, 31 Mo. 74. The right of a debtor to prefer one
creditor over another necessarily implies the right of such
creditor to accept such preference. While the effect of sucn\
preference must, to the extent that it is made, necessarily be to I
defer or to hinder or delay other creditors, the mere knowledge j
of the preferred creditor that such will be its effect, and the \
debtor intended it should have that effect, will not be sufficient /
to avoid the transaction as to a creditor not preferred. But if
in such case it further appears from the circumstances attend- j
ing the transaction that the preferred creditor was not acting |
from an honest purpose to secure the payment of his own debt, I
but from a desire to aid the debtor in defeating other creditors,
or in covering up his property, or in giving him a secret'
(Vvvr«;><?t^-^^
202 PREREQUISITES TO ADJUDICATION
interest therein, or in locking it up in any way for the debtor's
own use and benefit, he will not be protected, and the sale
would be fraudulent as to other creditors, because in such cases
the fraud of the debtor becomes the fraud of the preferred
creditor because of his participancy therein. Judgment reversed
and cause remanded, in which all concur.^''
/>{i ' ^ B]|NSON V. BENSON
657
^ ^^^r^^ ^ ^^^^"^^^253, 16 Atl
lA^iK •' V, - Crionrt of Annpals of Marvland.
k ^'-\Z^
(Court of Appeals of Maryland. February 8, 1889)
4-t><>*-^gT0NE, J. Joseph M. Brian became security on the guar-
dian bond of Thales A. Linthicum, who was the guairdiarL_of
- the complainant, !^izabeth H. Benson, about the year 1868.
The said Joseph M. Brian died in 1878, and the guardian,
Linthicum, in 1880. The same year in which he died Brian
conveyed all his property to his two children, a son and a
daughter. Linthicum, the guardian, died insolvent, and, before
any final settlement of his guardian accounts, and after his
Wath, it was discovered that he was largely indebted to his
jward. It also turned out that the other two securities on the
guardian bond were totally insolvent, and Mrs. Benson then filed
the bill in this case to set aside the deeds made by Brian to his
children as fraudulent and void against her; and whether these
deeds are fraudulent and void as against her is the first and
most important point in the case.
These deeds were executed by Brian a short time — a few
months — before his death. The consideration set forth in the
deed to his daughter professed to be love and affection. The
consideration set forth in the deed to his son was the sum of
/ $17,000 ; but the son proves that he did not pay his father a
I dollar in money, but claims to have paid, subsequently, debts
\ due by his father to ahout thaTamount. The deed executed by
17— See Dumas v. Clayton, 32 In re Banks, 207 Fed. 662, the
App. Cas. D. C. 566; Jackson v. Court held that a payment of one
Citizens Bank & Trust Co., 53 Fla. dollar to a creditor whose claim
265, 44 So. 516; Cron v. Cron, 56 was barred by the statute of lim-
Mich. 8, 22 N. W. 94; Crawford v. itations did not amount to a fraud-
Neal, 144 U. S. 585; Griswold v. ulent conveyance, though the pay-
Szwanek, 82 Neb. 761, 118 N. W. inent was made just before going
1073, 21 L. E. A. (N. S.) 222. See into bankruptcy,
also in^ra. Preferences, pp. 247-366.
FRAUDULENT CONVEYANCES 203
Brian to his daughter was for real estate only, and was executed
on the 3d of September, 1878. The deed to his son was exe-
cuted on the following day, and embraced all the property, both
real and personal, of the said Joseph M. Brian, except what he
had before given to his daughter.
There is no evidence in the record of the value of the prop-
erty given to his daughter, but there is evidence of the value of
the real estate given to the son, and it seems to have been worth
about $40,000, or perhaps a little more. There was, a consider-
able amount of personal property which passed to the son under
the deed to him, which, if we understood his evidence correctly,
was intended as compensation to the son for services rendered
the father. Simultaneous with the execution of these deeds, the
father, Joseph M. Brian, entered into a written agreement with
his children by which each agreed to pay him, if he demanded
it, $500 a year. If he demanded any money from one, he
promised to demand an equal amount from the other, so that
he might not be a greater burden on one than the other; and
all arrears of his annuity were to be considered as paid and '
settled at the time of his death, so that his personal representa-,
tive, if any, could make no claim for such arrears.
The recital of these facts shows conclusively the character of
this whole transaction. A man advanced in life and of con-
siderable wealth about two months before his death conveys all
his property to his children. His son is to pay his debts, and his
share was probably for that reason greater by the amount of
such debts than his daughter 's. The deed to his daughterjwas • /,
confessedly a purely voluntary conveyance, and the deed to the ^"^-^-^^
son, upon the proof, is also a voluntary convej'^ance. The son
did not pay a dollar for the property. All he professes to have
done was to pay some debts of the father, not amounting at
most to half the value of the real estate alone that he got. It
needs no authority for so plain a proposition that the son was
not, under these circumstances, a purchaser for a valuable con-
sideration, and to be treated as such. The deeds, the agree-
ment, and the proof show that Mr. Brian's object was to divide
his property between his children in his life-time, retaining only
an annuity sufficient for his wants for his life.
There is nothing Jn this record to show that Mr. Brian con- j e^^^
templated any fraud whatever. He may not, and probably did .
not, apprehend any loss oiTaccount of his being on this guardian 1r*^^
bond; but, whether he did or did not. these deeds cannot avail /
204 PREREQUISITES TO ADJUDICATION
against the claim of these complainants, and must be declared,
yo^A as against them, fraudulent and void. To hold otherwise would
be to declare that an obligor on a bond might always relieve him-
self when loss was apprehended by giving his property to his
wife or child. * * *
"We are therefore of opinion that the proceeds of the sale were
properly in the hands of the guardian, and that his security
is liable therefor. While, as we have said, the deeds, the sub-
ject of controversy here, are void against the claims of the com-
plaining creditors, and the property must be sold if necessary to
v.^ ( pay them, yet it is proper to state that Joseph M. Brian, Jr.,
. ^ I is entitled out of the proceeds of the property that he received
'^A, ( from his father, if such sale should be made, to be allowed a
credit for all the debts due bona fide from his father, and which
he can show that he paid after he received a deed for the prop-
erty. The decree must be reversed, and the case remanded, that
a decree may be entered in conformity with this opinion.^*
' .i^^^^^^jp^^^'^^ALBWm V. SHORT
S^" \JiI-''^ ? 125 N. Y. 553, 26 N. E. 928
5-^*^ A^' (Court of Appeals of New York. February 24, 1891)
r^ t^/ FINCH, J. The findings of fact in this case establish that
tu f^ i,. the conveyance of the house and lot to Mrs. Short by Mrs. Sperry
*4>v<>^ '^ was made and accepted with an intent on the_part of both
J^.p*j^ grantee and grantor to hinder, delay, and defraud the creditors
. of the latter. The conveyance was not voluntary, for it was
-n/vfi made in part in consideration of a debt of about $8,000 which
..^■"'^ the findings show was an honest debt, and justly due to the
grantee from the grantor. The conclusion of a fraudulent
intent on the part of Mrs. Short was therefore essential to a
recovery, and was established by proof that the balance of the
consideration for the transfer was made up of a false and pre-
tended debt for board and washing, which was wholly fictitious,
and never in fact existed, and which both parties to the transac-
tion falsely concocted to make up a full and fair consideration
for the conveyance. The existence or the falsity of that in-
debtedness was therefore an essential and vital element in the
18 — For references to many cases
in accord see 20 Cyc. 421. Cf. Ex
parte Mercer, 12 Q. B. D. 290.
FRAUDULENT CONVEYANCES 205
controversy; and the appellants claim that, in the effort to
show it to have been a fabrication, evidence was admitted against
Mrs. Short of declarations made by Mrs. Sperry, at a period
preceding the conveyance, which bore directly upon the validity
of the disputed debt, and were inadmissible as against Mrs.
Short. Mrs. Parker, a witness for the plaintiff, was permitted
to testify that, just prior to the assignment, she had a conversa-
tion with Mrs. Sperry, in the absence of Mrs. Short, in the course
of which Mrs. Sperry said : "I think I shall sell this house. It
costs so much to keep it up just for Mary's and ray board."
The defendants had asserted that such board was an honest debt
due to Mrs. Short from her mother; and the plaintiff, that it
was paid and extinguished as it accrued by the rent of the house,
and that by agreement the board was to be furnished in exchange
for the rent which would otherwise have been due from Mrs.
Short on account of her occupation. The declaration sworn to
by Mrs. Parker tended to show the truth of plaintiff's conten-
tion, but was made in the absence of Mrs. Short, constituted no
part of the res gestcB, and was inadmissible as against the
grantee, in whose behalf the objection was made. But it is a
conclusive answer to this allegation of error that Mrs. Short
herself, when examined as a witness, admitted all and more
than what the objectionable evidence tended to prove. She
acknowledged that during her occupation of the house her mother
paid all the taxes and insurance, and almost all the charges for
repairs; and further testified: "I don't remember saying to
Mrs. Sherwood that I boarded my mother and Mary for the
rent of the house; did their washing; that, while I thought a
great deal of my sister, I thought it was hard I should pay the
rent, and that my sister should receive it. I would not say I
didn't. I don't remember. I don't know when I said it. That
was the arrangement under which I was in the house." She
said again, at a later period of her examination : "I had loaned
my mother this money. I boarded her and my sister, and
did their washing, for this house, — for the rent of the house.
* * * I was not to pay any rent, only in that way, — only
to board them in that way, and do their washing. That was to
pay my rent. And that arrangement continued down to the
time I received my deed." Of course, these admissions made
the declarations to Mrs. Parker wholly superfluous and imma-
terial. Mrs. Parker was also permitted to narrate other declara-
tions of Mrs. Sperry, made prior to the conveyance, under
206 PREREQUISITES TO ADJUDICATION
objection. These were, in substance, that it was preposterous
to suggest that she should make presents to her daughters be-
cause they took care of her when she was sick; that they only
did their duty. In answer to the objection interposed in behalf
of Mrs. Short, the court held the declarations not competent,
but, to accommodate the witness, allowed them to be detailed,
conditioned upon their being stricken out if not made compe-
tent. In the further progress of the trial, both Mrs. Short and
Mrs. Sperry testified to the transfer to the former by the latter
of some "ranch stock" a few months before the assignment, and
added that it was done as remuneration for the services ren-
dered during Mrs. Sperry 's sickness. The declarations sworn
to by the witness tended to show that the mother did not regard
the services of her daughters during her illness as constituting
a debt which she was in any manner bound to repay ; and that
is the sole element of value in the proof. But exactly that, Mrs.
Short herself finally admitted. She said expressly that for her
services in the illness referred to she neither asked nor expected
any pay ; that the transfer of the ranch stock was a present ; that
it was given to her, and so constituted a gift, rather than a pur-
chase. If it be still suggested that the declaration proved
showed an existing unwillingness to make her a present, the fact
was both immaterial and harmless; for the admitted delay of
at least eight years shows the same thing much more forcibly,
and leaves no doubt about the su^ested lack of inclination.
But another class of evidence was received under objection.
The plaintiff proved several instances of transfers of property
by Mrs. Sperry to persons other than Mrs. Short prior to the
conveyance to the latter; and it was objected in her behalf that
she could not be affected by transactions to which she was not
a party, and of which she had no knowledge. But the plaintiff
was bound to prove the fraudulent intent of Mrs. Sperry, both
as against herself and as against Mrs. Short, and as against the
latter by evidence competent as against her. The acts and trans-
fers of Mrs. Sperry pertinent to the question of her intent
were admissible against both to establish that intent, and are
not to be excluded because they do not also bear upon the intent
of Mrs. Short. It is not necessary that the same fact offered
tin evidence should tend to establish both intents. If it proved
^Mrs. Sperry 's alone, but was a kind of evidence competent
against Mrs. Short, no error would follow its admission. It
FRAUDULENT CONVEYANCES 207
would tend to prove one branch of the issue, leaving the other
to be met in some different way.
There are some other objections to evidence, but of so little im-
portance as not to justify discussion. They related principally
to the declarations of Mrs. Sperry on the day of the assignment
and conveyance, and pending the preparation of those instru-
ments, and were either within the res gestae, or wholly imma-
terial, in view of the ultimate course of the trial.
The contention that the conveyance to Mrs. Short may be
sustained to the extent of the adequate and honest part of the
consideration is fully answered by the authorities which hold
that, where the deed is fraudulent against creditors, it is wholly
void, and cannot stand to any extent as security or indemnity.
Boyd V. Dunlap, 1 Johns. Ch. 478 ; Dewey v. Moyer, 72 N. Y.
70; Billings v. Russell, 101 N. Y. 226, 4 N. E. Rep. 531. A
different rule would put a premium upon fraud. Almost in-
variably, some honest consideration is made the agency for
floating a scheme of fraud against creditors; and, if that may
always be saved, nothing is lost by the effort, and the tempta-
tion to venture it is increased. We are thus unable to find in
the record any error which will justify a reversal. Indeed,
since the ground of recovery against the defendants rests almost
wholly upon the single fact of a false and fraudulent considera-'
tion fabricated by the joint act of both grantor and grantee, and
distinctly admitted by each to have been without an honest
foundation, the questions of evidence raised can hardly be said
to have affected the ultimate result. The judgment should be
affirmed, with costs. All concur, except Ruger, C. J., and
Xndrews, J,, not voting.^^
19 — For many cases in accord, see terference by allowing the deed of
20 Cyc. 638. the real estate to stand as a security
~^*i do not discover, from a view only for such consideration as has
of the pleadings and proofs, such been shown by the younger Dunlap.
traces of actual and direct fraud There appears to be very consider-
as to feel myself warranted in di- able inadequacy of price, even ad-
recting the conveyance of the real mitting the consideration expressed
estate to be delivered up and can- in the deed; and to allow the deed
celled as absolutely null and void. to stand as security only for the
* * * The only question with true sum due would be doing justice j c^ V
me has been whether the plaintiffs to the parties, and granting a relief/ . "^V
ought to be left to their legal rem- which cannot be afforded at law.' ^
edy, or whether the case affords A court of law can hold no middle
sufficient ground for a limited in- course. The entire claim of each
Tt^t-^u^
208 PREREQUISITES TO ADJUDICATION
^'"^^ "^'^^Ji^^ M WILSON V. WALRATH
i^^-*^^"*^.^^ JU-t .^103 Minn. 412. 115 N. W. 203
^^^^^J^< • ^ 103 Minn. 412, 115 N. W.
"■v^ T( Supreme Court of Minnesota. February 21, 1908)
v/**-'^
ELLIOTT, J. This was an action in replevin, in which the
plaintiff sought to recover possession of an automobile. The
case was tried by the court without a jury, and findings of fact
and conclusions of law were made in favor of the defendant.
From the judgment entered thereon the plaintiff appealed to this
court.
The principal facts are undisputed. The ultimate conclusion
only is questioned. If the findings of facts are sustained by
the evidence, the conclusions of law were properly drawn.
One Spargo sold the automobile in question to the appellant,
Wilson, who paid full consideration therefor, but agreed to allow
Spargo to retain possession of the property for certain purposes
and under certain conditions for a specified time. While in
possession, Spargo mortgaged the machine to Walrath, who
had no knowledge of the sale to Wilson. The court found as
a fact that the evidence does not prove that the sale to Wilson
"was made in good faith and without intent to injure, delay,
or defraud creditors and subsequent purchasers in good faith
of said Spargo." If the evidence sustains this finding of fact,
the respondent must prevail in this court.
party must rest and be determined decisive and dubious aspect that
at law on the single point of the they cannot either be entirely sup-
validity of the deed; but it is an pressed or entirely supported with
ordinary case, in this court, that a satisfaction and safety." Chancel-
deed, though not absolutely void, lor Kent, in Boyd v. Dunlap, 1
yet, if obtained under unequitable Johns. Ch, 478; Clark v. Sherman,
circumstances, should stand only as 128 Iowa, 353, 103 N. W. 982;
a security for the sum really due. Griswold v. Szwanek, 82 Neb. 761,
• * * A deed fraudulent in fact 118 N. W. 1073, 21 L. R. A. (N. S.)
is absolutely void, and it is not per- 222; Horton v. Bamford, 79 N. J.
mitted to stand as a security, for Eq. 356, 81 Atl. 761; McGovern v.
any purpose of reimbursement or Motor Co., 141 Wis. 309, 124 N. W.
indemnity; but it is otherwise with 269; Pringle v. Olshinetsky, 17 Ont.
a deed obtained under suspicious or L. R. 38, 11 Ont. W. E. 871.
unequitable circumstances, or which See Dickinson v. Way, 3 Rich,
is only constructively fraudulent. Eq. 412 ; Johnston v. Bank, 3 Strobh.
* * * Nothing can be more Eq. 263; Robinson v. Stewart, 10
equitable than this mode of dealing N. Y. 189.
with these conveyances of such in-
FRAUDULENT CONVEYANCES 209
1. There is a line of cases which holds that, while delivery
is not essential to pass title as between the vendor and vendee
of personal property, it is necessary for such purpose as against
every one but the vendor. Under this rule, when the same goods
are sold to different persons by conveyances equally valid, he
who first lawfully acquires the possession will hold them as
against the other. The motives and intentions of the parties
are immaterial, as the doctrine rests upon the general principle
that, where one of two innocent persons must suffer, the loss
should fall on him whose acts or omissions have made or con-
tributed to make the loss possible. Lanfear v. Sumner, 17 Mass.
110, 9 Am. Dec. 119; Crawford v. ForristaU, 58 N. H. 114;
Burnell v. Robertson, 10 111. 282 ; Stephens v. Gifford, 137 Pa.
219, 20 Atl. 542, 21 Am. St. Rep. 868; Norton v. Doolittle, 32
Conn. 405. For other cases see 2 Mechem on Sales, § 981.
Closely connected with this doctrine, but resting on other prin-l
ciples, is the rule which makes the retention of possession byj
the vendor conclusive evidence of fraud. This doctrine also
rests upon grounds of assumed public policy. It prevails by
virtue of statutes or decisions based on the common law in a
number of states. 2 Mechem on Sales, § 984 ; 20 Cyc. 539, note
13.20 Iq the greater number of states, however, the rule is estab-
lished that the mere retention of possession by the vendor is
presumptive evidence only of a fraudulent and colorable sale,
and the vendee is permitted to overthrow this presumption by
evidence which establishes his good faith and want of knowledge
of any fraudulent intent on the part of the vendor. 20 Cyc.
20 — See the extensive note in 24 that all absolute sales of chattel
L. E. A. (N. S.) 1127-1154, where property, where possession is per-
the cases and statutes are collected. mitted to remain with the vendor,
The matter of whether the reten- are fraudulent per se, and void as
tion of possession is consistent with to creditors and purchasers, unless
the deed or not has been deemed in the retention of possession by the
some cases to have been of impor- vendor is consistent with the provi-
tance. Hopkins v. Scott, 20 Ala, sions of the deed of transfer or
179; Hempstead v. Johnston, 18 bill of sale. In all such cases the
Ark. 123; Clayton v. Brown, 17 Ga. vendor's possession is not merely
217; Bass V. Pease, 79 111. App, evidence of fraud, but, by legal in-
308; Edwards v. Harben, 2 T. E. ference, is fraud in itself, and can
587; Martindale v. Booth, 3 B. & A. not be rebutted although the parties
498. In Bass v. Pease, supra, the may have acted in the best of
Court said: "Ever since the case faith." But see Clow v. Woods, 5
of Thornton v. Davenport, 1 Scam. S. & E. 275; also Bigelow on Ft.
296, the rule has been, in Illinois, Conv. (Knowlton's ed.) 404, et seq.
H. & A. Bankruptcy — 14
210 PREREQUISITES TO ADJUDICATION
536 et seq. The statutes are referred to in the notes to 2
Mechem on Sales, §§ 960, 961.
2. In the thirteenth year of Elizabeth there was enacted the
famous statute which made all conveyances not made bona fide
and for value, with intent to injure and delay or defraud the
creditors, void as to such creditors. St. 13 Eliz. c. 5. A later
statute extended this protection to subsequent purchasers as
well as creditors. St. 27 Eliz. c. 4. These statutes did not in
terras apply to personal property, but from the time of Sir
Edward Coke's decision in Twyne's Case, 3 Co. Rep. 80b, 5 Eng.
Rul, Cas. 2, sales of personal property made with intent to delay
and defraud creditors or subsequent purchasers have been re-
garded as within the provisions of the statutes. The question
soon arose whether, under these statutes, possession by the vendor
was fraudulent per se, and therefore conclusive, or merely pre-
sumptively fraudulent. In Twyne's Case, in speaking of the
indicia of fraud, it was said that ''continuance of the posses-
sion in the donor is the sign of trust for himself. ' ' In Edwards
V. Harben, 2 T. R. 587, it was held that, "if there be nothing
but the absolute conveyance without the possession, that in
point of law is fraudulent. ' ' For some time thereafter this was
the established rule in the English courts, but it was finally held
that the proper construction of the statute made such a con-
veyance presumptively fraudulent only. Hale v. Metropolitan
Co., 28 L. J. Ch. 777; Gregg v. Holland, [1902] 2 Ch. 360.
To clear up the difficulty which arose under the statute. Parlia-
ment enacted the various bills of sale acts, which are fully
discussed and explained by Lord Blackburn in Cookson v.
Swire, 9 A. C. 653-670 (1884). See, also, references to these
acts and decisions thereunder in notes to the fifth English edi-
tion of Benjamin on Sales, p. 496, and appendix, p. 1029, and
in the note to Twyne's Case in 5 Eng. Rul. Cas. 27-39. See,
also, Mr, Bennett's note to the sixth American edition of Benja-
min on Sales, pp. 458-462, and Jones on Chattel Mortgages,
§ 320 et seq. In the United States Edwards v. Harben was
followed by Chancellor Kient in Sturtevant v. Ballard, 9 Johns.
(N. Y.) 337, 6 Am. Dec. 281, and by the Supreme Court of the
United States in Hamilton v. Russell, 1 Cranch (U. S.) 309,
2 L, ed, 118. But in Warner v. Norton, 20 How. (U. S.) 448,
15 L. ed. 950, Mr. Justice McLean stated that "for many years
past the tendency has been in England and the United States
to consider the question of fraud as a fact for the jury under
dee the burden of rebutting the statutory presumption of fraud- '"^
ulent intent hy proving his own good faith and want of knowl-
FRAUDULENT CONVEYANCES 211
the instruction of the court." This is now the established doc-
trine of the court. Jewell v. Knight, 123 U. S. 426, 8 Sup. Ct.
193, 31 L. ed. 190; Smith v. Craft, 123 U. S. 436, 8 Sup. Ct.
196, 31 L. ed. 267. See note 18 L. R. A. 604.2 1
§ 3496, Rev. Laws 1905, and the previous statutes which are
embodied therein, were enacted for the purpose of removing
any doubts as to whether the retention of possession by the ven-
dor is conclusive or only presumptive evidence of fraud. It/
provides in express terms that such possession shall be presumedf
to be fraudulent and void as against subsequent purchasers in',
good faith, unless those claiming under such sale make it ap-
pear that the sale was made in good faith and without any intent
to defraud such purchasers. The effect is to east upon the ven-
edge of fraudulent intent on the part of the vendor. Leqve v.
Smith, 63 Minn. 24, 65 N. W. 121. The statute controls this
case. If Wilson proved that he purchased the machine in good
faith without knowledge of any intent on the part of Spargo
to defraud his creditors or subsequent purchasers, he was en-
titled to the possession of the property. It is conceded that on
April 5, 1906, Spargo owed Wilson $250, the proceeds of an old
machine which had been sold by Spargo for Wilson. The money
had been retained for some time with the consent of Wilson.
Spargo then owned a Jackson machine, which he used for dem-
onstrating purposes. Wilson wished to purchase a new machine,
and after various negotiations he purchased the Jackson ma-
chine for $1,000, which was substantially its actual value. In
payment he at the time gave Spargo $700 in cash and satisfied
the debt for $250 and accumulated interest. Wilson was inter-
ested in country banks, and his business called him away from
home a great deal of the time. It was necessary that the ma-
chine should be stored in some garage. Spargo, being agent
for the Jackson automobile, and having no other machine of
that mak§ on hand, wished to retain possession of this machine
for a time and use it for demonstrating purposes. It was there-
fore agreed and stated in the bill of sale that Spargo might
retain possession of the machine for 30 days and in the mean-
time use it for demonstrative purposes, in consideration of which
21 — Federal courts, however, will applicable. Etheridge v. Sperry,
follow the law of the state properly 13^ tJ. S. 266, 277.
212 PREREQUISITES TO ADJUDICATION
he was to store the machine and keep it in repair. Spargo's
business and personal standing was good, and Wilson had no
reason to suspect, and did not suspect, that Spargo was in-
solvent. It appears from all the evidence that if he had made
special investigations he would have found that Spargo's stand-
ing was good. Spargo kept the machine in his garage after the
expiration of the 30 days and continued to use it in his busi-
ness. During this time he mortgaged it to the respondent,
Walrath, who had no knowledge of the previous sale to Wilson
\and acquired his lien in good faith for value. Neither Wil-
^n's bill of sale nor Walrath 's mortgage was recorded. Wal-
<Tath finally took possession of the machine, and in this action
Wilson sought to recover possession from him.
A careful examination of the evidence compels the conclusion
that Wilson was entitled to a finding of fact to the effect that
he purchased the automobile in good faith and without any
intent to hinder, delay, or defraud Spargo's creditors, or sub-
sequent purchasers from Spargo. Wilson certainly acted in
good faith in the matter, if such a thing is possible when the
vendor is allowed to retain possession of the chattel. He paid
full value for the property, and this in itself is persuasive evi-
dence of his good faith. The respondent says that the appel-
lant was not prejudiced by reason of his absence from the trial,
"because no One disputed his good faith in buying the automo-
bile." It is not contended that there was any actual bad faith
on the part of Wilson. In his brief the respondent thus states
his position. The sale was not accompanied with immediate
delivery and followed by an open and continuous change of
possession, within the meaning of § 3496, Rev. Laws 1905 ; and
hence, "while in this case it may be true that on April 25, 1906,
appellant in the utmost good faith purchased the automobile, but
from that time on the action of the appellant in permitting and
agreeing to allow Mr. Spargo, the vendor, to keep and use that
machine in exactly the same manner after the sale as before, was
a fraud per se upon any person who might either purchase or
take the same as security without notice of the rights of a prior
purchaser. ' ' This is the doctrine of Lanf ear v. Sumner, 17 Mass.
110, 9 Am. Dec. 119, and the other cases of the group to which
reference has been made. As an abstract principle of law, that
doctrinift is sound and controlling when applied to appropriate
facts and conditions. But the effect which shall be given to pos-
session under the particular circumstances disclosed in this rec-
FRAUDULENT CONVEYANCES 213
ord is declared by the statute, and the statute should not be dis-
regarded and annulled by the application of the doctrine of
equitable estoppel. Upon the evidence Wilson sustained the
burden which the statute imposes upon him, and the finding of
the trial court was thus erroneous.
We are inclined to believe that the court was misled by cer-
tain statements made in the case of Flanigan v. Pomeroy, 85
Minn. 264, 88 N. W. 761, which approve the doctrine of Lan-
fear v. Sumner. In that case it appeared that Hogan was the
owner of a horse which he desired to sell. Flanigan agreed to
pay $350 for the horse, and paid $10 on account, ,with the un-
derstanding that he should pay the balance before 11 o'clock the
next day and then get the horse. Before the time had elapsed
Boynton offered to purchase the horse from Hogan, and was
informed that another party had an option which expired at
11 o'clock. Flanigan failed to appear within the time limit,
and Hogan sold the horse to Boynton, who paid the purchase
price in full and took possession of the property, Flanigan,
claiming that the title of the horse passed to him at the time
of the payment of the $10, brought an action in replevin and
was defeated. The trial court did not make a finding that
Flanigan was a purchaser in good faith, and, as this was neces-
sary to his right to recover, the order was properly affirmed on
that ground. As an additional reason why Boynton was en-
titled to retain possession of the horse, the court referred with
approval to the doctrine of Lanfear v. Sumner, and cited cer-
tain cases in which that doctrine has been approved. The case
was properly decided upon the first ground stated, and the ad-
ditional reason given in the opinion must be regarded as no
longer meeting with the approval of this court.
The judgment is therefore reversed, and a new trial granted.
FORD LUMBER & MFG. CO. v. CURD ^ ^Va.
150 Ky. 738, 150 S. W. 991 ^'^'C'^^ <:<^
(Court of Appeals of Kentucky. November 26, 1912) /
CARROLL, J. This suit was brought by the appellant com-
pany to subject to the payment of a debt it had against the
appellee John P. Curd a house and lot conveyed to the appellee
Anna Curd, his wife, upon the ground that the conveyance was
fraudulent and made for the purpose of defeating the collection
214 PREREQUISITES TO ADJUDICATION
of its debt. The lower court dismissed the suit, and to reverse
that judgment this appeal is prosecuted.
The debt sued on by the appellant was created by John P.
Curd some time prior to February 10, 1908, on which date he
executed to the company his note for the amount due. In
August, 1908, the property sought to be subjected was conveyed
to Anna Curd ; the consideration being $1,150. Of this amount,
$100, perhaps something over, was paid on the consideration of
the vendor, and a few days after the conveyance was made the
Home & Savings Fund Company advanced to the Curds about
$1,000, to satisfy the remainder due on the purchase price and
took a mortgage on the property. At the time, or perhaps before,
this transaction occurred, John P. Curd had become a member
of this Home & Savings Fund Company, the dues in which were
$2.30 a week, and the purpose of obtaining the money from the
Home & Savings Fund Company was to enable the Curds to
pay off the mortgage debt in weekly installments. The evi-
dence shows that the first payment, of about $100, made to the
vendor, was paid out of money tliat Mrs. Curd had received
from the estate of her parents; but the weekly payments of
$2.30 to the Home & Savings Fund Company were paid by Mrs.
Curd out of money given to her by her husband. The evidence
further shows that Curd earned, from August, 1908, to August,
1911, when the suit was brought, about $20 a week, and that he
gave the money so earned to his wife, who, with this money, in
addition to $4 a week received from a boarder, paid all the
expenses of the house and family, which consisted of herself
and husband and two children, and was able to save out of it a
few dollars each week. It is also shown that she was an in-
dustrious, thrifty, economical woman, and that she did the cook-
ing for the family and all the household work, except occa-
sionally when she had a young girl to help her.
f On these facts it is the contention of counsel for appellant
that as the weekly payments made on the house were, in fact,
made by Curd out of money earned by him, the property should
be subjected to the debt sued on; while counsel for appellee
insist that Curd had the legal right to give to his wife, for the
; support of his family, the wages he received, and if she saved
I enough out of this to pay the weekly dues to the Home & Savings
^ Fund Company, thus reducing the debt against the house, no
'fraud was practiced on the appellant, and it cannot subject the
FRAUDULENT CONVEYANCES 215
property to the extent of the payments so made in satisfaction
of its debt.
As the evidence shows that Mrs. Curd paid, out of her own
money, the initial payment on the property, there is, of course,
no fraud attached to this feature of the case, and we may put
it aside without further comment. The remaining question is:
Does the fact that the property was conveyed to Mrs. Curd, and
the weekly payments made out of money earned by her hus-
band and given to her, constitute such fraud, in the meaning of
the law, as w6llld Authorize the court to subJtJCl the piupeitj''-
_to appellant's aebt to the extent of the weekly payments? We
think this question must be answered in the negative, as it was
by the lower court.
The cases of Gross v. Eddinger, 85 Ky. 168, 3 S. W. 1, 8 Ky.
Law Rep. 829 ; Brooks- Waterfield Co. v. Frisbie, 99 Ky. 125, 35
S. W. 106, 18 Ky. Law Rep. 555, 59 Am. St. Rep. 452 ; Black-
bum V. Thompson, Wilson & Co., 66 S. W. 5, 23 Ky. Law Rep.
1723, 56 L. R. A. 938 ; and Patton v. Smith, 130 Ky. 819, 114
S. W. 315, 23 L. R. A. (N. S.) 1124— relied on by counsel for
appellant, do not, in our opinion, support his contention that
the appellant should succeed in this case. We approve of those
opinions and the principles of law announced in them ; but they
are plainly distinguishable from the case at bar. In the Gross
case the husband, by his exclusive business effort, accumulated
in a few years $3,000 or {^4^000, which was invested in the name
of his wife, and the court held, under the facts of that case, it
was plainly the purpose of the husband to defraud his creditors
by attempting to place the income from a profitable business,
conducted by him, in the name of his wife and beyond their
reach. In the Brooks- Waterfield case, Frisbie, who was a suc-
cessful and prosperous business man, accumulated several thou-
sand dollars, in the course of a few years, and invested it in
real estate in the name of his wife, and the court subjected, at
the instance of his creditors, the property in the name of his
wife, to the extent of $3,000 to the payment of his debts. In the
Blackburn case, the husband, who was conducting a profitable
line of business, invested, in the name of his wife, some $2,500
realized from his business, and the court held that the scheme
of permitting his wife to take the title to property that was paid
for in this way by the husband was a fraud upon his creditors.
216 PREREQUISITES TO ADJUDICATION
In the Patton case the husband, in a few years, by industry and
business ability, accumulated several thousand dollars, with
which land was bought and the title taken in the name of the
wife, and it was held that the husband could not, by this method,
defeat the claims of his creditors, and so much of the property
as represented the result of his business capacity was subjected
to the payment of his debts. In all of these cases it appeared
that the earnings or profits made by the husband were greatly
in excess of the amount necessary to comfortably provide a
home and support for his family, and the court in substance
said that a husband engaged in a successful and prosperous busi-
ness, by which he was able to accumulate considerable estate,
would not be permitted to invest his accumulations in property
in the name of his wife, and thus defeat his creditors. But we
have here a very different state of case. Curd, with a wife and
f CtK.^ two children to support, was earning a salary of $20 a week, or
$80 a month, not more than sufficient to provide for and support
his family, if his wife had not been an industrious, economical,
good housekeeper. If, in place of handing to his wife every
week all of his meager salary, Curd had seen proper, as many
husbands do, to spend a part of the money in_purchasing plpa^u
ures and comforts for himself and family, or if he had given
the money to his wife and she had spent it, as many wives do,
in extravagant living, his creditors could not have reached any
part of it, because he would have been entitled to the $20 re-
ceived each week, under the exemption laws of the state. But
\ -^-i^. even if it was not so exempt, no court would have compelled him
to set aside, out of this salary, a certain sum each week for the
benefit of his creditors, or have required him to live more
economically than he desired to, and in this way save a portion
of his wages for his creditors.
Where the earnings of the husband are not more than rea-
sonably sufficient to comfortably provide for and support his
family, hire household labor, and furnish his wife and children
with some of the pleasures of life, he may give his earnings to
his wife, and if she is willing to deny herself the pleasures and
little luxuries that she might have, and to dress plainly and live
frugally, and do her own cooking and household work in place
of hiring help to do it, and by this close economy in the manage-
ment of her personal and household affairs is able to save enough
FRAUDULENT CONVEYANCES 217
to buy an humble home, his creditors cannot take it from her.
Anderson v. Mundo, 77 S. W. 926, 25 Ky. Law Rep. 1644.
The judgment dismissing the petition is afifirmed.22
LYNCH 'S ADM 'R v. MURRAY "^-^
86 Vt. 1, 83 Atl. 746 ' C
(Supreme Court of Vermont. May 14, 1912)
HASELTON, J. This is a bill in chancery brought by the
administrator de banis nmi of the estate of Thomas Lynch. The
bill is founded on P. S. 2863, which authorizes an executor or
administrator, where there is a deficiency of assets, to maintain
a suit to set aside a fraudulent conveyance made by the deceased
person whom he represents. The conveyance in question was
made by Thomas Lynch to William Murray, the defendant, June
20, 1898. The case was heard on bill, answer, master's report,
and defendant's exceptions thereto, and on the defendant's
motion for a decree in his favor, and it was decreed that the
conveyance in question is void as to the creditors of Lynch and
of his estate to the extent of the deficiency of the assets of the
estate to pay such creditors. There were further provisions in
the decree the propriety of which, except as herein noticed, is
not questioned, provided the decree, so far as above recited, was
rightly made. The decree is in substantial conformity with that
directed by this court in its mandate in the well-considered case
of McLane v. Johnson, 43 Vt. 48. Murray, the defendant,
appeals.
It is claimed by Murray that it does not appear by the report
that the conveyance to him was made with an actual fraudulent
intent on the part of Lynch. It appears from the report that
Lynch had owned and occupied the farm for about 10 years
before the conveyance in question and that during most of that
time, a period of about 10 years, he had kept in his family one
McCabe, who had left shortly before the conveyance, and who
claimed that there was due to him from Lynch a large sum on
account of labor done by the former for the latter ; that McCabe
threatened to bring suit on such claim; that Lynch hearing of
the threatened, or contemplated, action of McCabe consulted his
22— Cf. Trefethen v. Lyman, 90 son v. McKenna, 21 R. I. 117, 42
Me. 376, 38 Atl. 335, 60 Am. St. Atl. 510, 79 Am. St. Eep. 793.
Eep. 271, 38 L. R. A. 190; Robin-
218 PREREQUISITES TO ADJUDICATION
close friend Murray as to what should be done under the cir-
cumstances ; and that the two called upon a third person to draw
the deed in question; and that, after it had been properly exe-
cuted, Lynch delivered it to Murray, and Murray took it and had
it recorded. The farm was then worth $1,800. It was unin-
cumbered except by a mortgage of $600. There was no con-
sideration for the deed of Lynch 's equity of redemption, but
Murray assumed the comparatively small mortgage. Lynch be-
lieved that he had more than paid MeCabe and that the latter 's
.^claim was unfounded and unjust, but feared that the latter
might obtain a large judgment on his claim, and he gave the
deed for the purpose of so transferring the apparent title to the
property that it could not be reached in execution by McCabe.
Lynch told Murray that McCabe had been more than paid, and
it was agreed between Lynch and Murray at the time of the
giving of the deed that on settlement of the McCabe claim the
property should be deeded back to Lynch.
The master does not in terms find that the conveyance
was fraudulent, but the facts found as above stated are equiva-
lent to a finding that the conveyance was actually fraudulent;
for, as has well been said, actual fraud means "fraud according
to the common conscience." And it is that conscience, and not
Lynch 's or Murray's, which determines the character of this
conveyance. Bigelow, Fraudulent Conveyances (Knowlton's
ed.) 1, 444. Even though Lynch did not believe that he owed
McCabe, it was the latter 's right, if he thought otherwise, to
bring suit and liave his rights determined, not by the judgment
of Lynch, but by the judgment of the court, and it was the duty
of Lynch, so far as his property not exempt would enable him,
to satisfy any such judgment, and so the conveyance was made
with the fraudulent intent of defeating the right of McCabe
and of avoiding the duty of Lynch, and was an actual fraud
upon one who, as was contemplated, might become a judgn[ient
creditor in consequence of claims existing at the time of the
conveyance. Foster v. Foster, 56 Vt. 540 ; Corey v. Morrill, 71
Vt. 51, 42 Atl. 976; Kimball v. Thompson, 4 Cush. 441, 447,
50 Am. Dec. 799 ; Rogers v. Evans, 3 Ind. 574, 56 Am. Dec. 537.
With great good sense, the Statute of Elizabeth counted as
fraudulent conveyances which tended "to the let or hindrance
of the due course and execution of law and justice." 13 Eliz.
e. 5, cl. 1.
To say that fears of an unjust judgment against Lynch af-
FRAUDULENT CONVEYANCES 219
f ected the character of the transaction would be much like say- ^''y^..^.^^
ing that a mob is justified in hanging or burning one charged []
with crime because of apprehensions that a court of law will
unjustly acquit him. ' ' ~~
It is further claimed by Murray that there is no finding
in the report that he had any fraudulent intent in taking the
deed, and that he must be considered as an innocent grantee.
But the facts above stated permit but one conclusion; that is,
that he was in collusion with Lynch; that he took the deed in
furtherance of the fraudulent intent of Lynch and for the pur-
pose of effectuating it. It is therefore to be presumed that the
trial court drew that conclusion. Davenport v. Crowell, 79 Vt.
419, 65 Atl. 557 ; Johnson v. Paine, 84 Vt. 84, 78 Atl. 732 ; Per-
kins V. Perley, 82 Vt. 524, 74 Atl. 231.
We have then a case of a conveyance given by the grantor
and taken by the grantee with the actual fraudulent intent on
the part of both of defeating such existing claim, if any, as
McCabe might succeed in establishing through regular proceed-
ings in a court of justice.
The defendant claims that this was not a voluntary con-
veyance, on the ground that Murray assumed to pay the mort-
gage on the farm. As we have seen, the farm at the time of the
conveyance was worth $1,800, the mortgage was $600, and noth-
ing was paid for the valuable equity of redemption. This could
be levied upon by creditors, and its alienation without considera-
tion was within the statute. The circumstance of the assump-
tion of the mortgage, and other circumstances connected there-
with, do not tend to relieve the transaction of its fraudulent
character in view of the fact that it was agreed between the
parties that, when the McCabe claim was put out of the way,
the property should be deeded back to Lynch. In view of that]
agreement, the assumption of the mortgage seems to have been!
intended rather to give a fair aspect to the fraud than to make 1
the transaction bona fide. Bigelow, Fraudulent Conveyances
(Knowlton's ed.) 39, 122; Spencer v. Caverhill (Iowa) 133 N.
W. 450, 453 ; First National Bank v. Bertschy, 52 Wis. 438, 9
N. W. 534; Lyons v. Haddock, 59 Iowa, 682, 13 N. W. 737;
Randall v. Vroom, 30 N. J. Eq. 353 ; Stutson v. Brown, 7 Cow.
732 ; Welcome v. Batchelder, 23 Me. 85.
* * *
Decree affirmed and cause remanded.
220 PREREQUISITES TO ADJUDICATION
^ h^T*^' HOLLOWAY v. MILLARD
-i. ^^ ^{j^ 1 Madd. 225
r*L ^t - jb-i^'^ (Chancery. February 25-Mareh 4, 1816)
1 "^"^ This was a creditor's bill, filed against the executors of S. H.
^ "^ and also against the trustees, and cestuis que trust, under a
voluntary settlement made by her, praying an account against
the executors; and that if it should appear that her estate was
ingu|fieient for the payment of her debts, the deficiency might
be made good" ouToTl^he property of which the voluntary settle-
ment had been made, and that a competent part might be sold
for that purpose.
S. H. by her will, 29th April, 1809, gave all her real estate,
etc., to the use of M. Lewis (since deceased), and the defendant,
John Millard, their heirs and assigns, in trust to sell the same,
and apply the produce in aid of her personal estate, in discharge
of her debts, etc., and gave the residue to F. T. Lewis and
Millard were appointed executors.
By a settlement, dated 22nd of December, 1810, S. H., after
reciting that she was entitled as one of four co-heiresses to a
fourth part of certaip estates, estimated at the value of £170,000,
parts of which estate had been contracted to be sold, she cove-
nanted and agreed with the trustees Lewis and Millard, that, out
of her share of the monies to be produced by the sale of the
estates, she would pay them £36,000 sterling, upon trust, to invest
the same in government securities, and apply the dividends as
she should appoint, and for want of appointment to pay the same
to her for her life, and after her decease, then upon the trusts
mentioned in the deed, in favor of the defendants, the cestuis que
trust. By a codicil, 5th March, 1811, S. H. confirmed her will,
and the settlement. The £36,000 was afterwards paid to the
trustees, and they invested the same in government securities,
and applied the dividends and the principal according to the
trusts of the settlement.
The^ill did not state that the deceased was indebted at the
time she made the voluntary settlement; but charged that it
was made in favor of an illegitimate child, and others, and that
the whole was voluntary, and made without good or valuable
(consideration, and void against the plaintiffs, who were creditors
subsequent to the settlement.
FRAUDULENT CONVEYANCES 221
THE VICE-CHANCELLOR. Two questions have been made
in this cause; 1st. Whether a voluntary settlement by one not
indebted, in favor of an illegitimate child, and others, can be
impeached by creditors subsequent to the settlement; and 2dly.
Whether the plaintiff, though he has not stated in his bill
that the settler was indebted when she made the settlement, is
entitled to an inquiry as to that fact, the bill being a creditor's
bill.
With respect to the first point, it appears, that S. H. being
entitled to £42,500, makes a settlement to the extent of £36,000.
It is a pure voluntary settlement in favor of strangers (for the
illegitimate child cannot be considered otherwise than as a
stranger), without pecuniary consideration, or consideration of
blood, by one not indebted at the time. It has been strongly
insisted that, though a voluntary settlement by one not indebted,
is good against future creditors, if made in favor of a wife or
child; yet, that if made in favor of strangers, as in this case,
it is not effectual against future creditors.
It was not from any doubt on this point, but only from its
general importance, and in deference to the argument, that I
thought it right to look into the cases.
Let us first see how it stands independent of authority. The
word "voluntary" is not to be found either in the statute of
the 13th Eliz. c. 5 (upon which the present question arises), or
in the 27th Eliz. c. 4. The 13th Eliz. is pointed only against
"fraudulent" conveyances, as appears from the preamble; and
such conveyances only are thereby invalidated. Fraudulent con-
veyances are such, to use the words of the preamble, as are ' ' de-
vised and contrived of malice, fraud, covin, collusion, or guile,
to the end, purpose, and intent, to delay, hinder, or defraud
creditors." This conveyance is not one of that description. It
is not fraudulent merely because it is voluntary. A voluntary
conveyance may be made of real or personal property, without
any consideration whatever, and cannot be avoided by subse-
quent creditors, unless it be of the description mentioned in the
statute. If a person having £1,000 a year, and not indebted at
the time, gives away £500 a year, the gift is not fraudulent, un-
less it were made with an intent to defeat subsequent creditors.
Its being voluntary is primu facie evidence, where the party is
loaded with debt at the time, of an intent to defeat and defraud
his creditors; but if unindebted, his disposition is good. There
is no suggestion in the bill that this settler was indebted at the
222 PREREQUISITES TO ADJUDICATION
time; she was not in trade; and the settlement did not include
all her property ; £6,000 being left unsettled. She was culpable
in becomingjbe parent of such a child, but the child being born,
it was her duty to protect and provide for it. A voluntary dis-
position, even in favor of a child, is not good, if the party is
indebted at the time. (Fitzer v. Fitzer, 2 Atk. 511. Taylor v.
Jones, 2 Atk. 600.)
A dictum of Lord Hardwicke, in Townshend v. Windham (2
Ves. sen. 10), has been much relied on. Supposing Lord Hard-
wicke's words to be correctly reported, they only amount to
this, that he is speaking aflfrrmatively, when a voluntary deed will
be good, and so far the proposition is true ; but it is not thence
to be inferred, that every voluntary conveyance not in favor of
a child is bad against subsequent creditors. If, in that passage,
the words ''for a child" had been omitted, still the proposition
would have been correct, and I have Lord Hardwicke 's authority
for saying so, as will appear from some determinations of his,
which I shall notice. In Walker v. Burroughs (1 Atk. 93), his
Lordship says, "It has been said, all voluntary settlements are
void against creditors, equally the same as they are against
subsequent purchasers under the statute 27th Eliz. c. 4 ; but this
will not hold; for there is always a distinction upon the two
statutes (the 13th Eliz. c. 5, and the 27th Eliz. c. 4.) It is
necessary on the 13th Eliz. to prove at the making of the settle-
ment, tile person conveying was indebted at the time, or imme-
diately' after the execution of .the deed, or otherwise it would be
attended with bad consequences, because the statute extends to
goods and chattels, and such construction would defeat every
provision for children and families, though the father was not
indebted at the time." In another passage in the same case, he
says, ' ' Where a man has died indebted, who in his lifetime made
a voluntary settlement, upon application to this court to make
it subject to his debts as real assets, the court have always de-
nied it, unless you show he was indebted at the time the con-
veyance was executed. ' ' Now here, you observe, the proposition
is laid down generally, that a voluntary settlement by one not
indebted, is good against subsequent creditors; and it is not
said, that to be good such voluntary settlement must be made in
favor of a child. In Russell v. Hammond (1 Atk. 15), Lord
Hardwicke expresses himself in the same manner. In that case
it was also determined, that where a father took back an annuity
to the value of the estate comprised in the settlement, it was
FRAUDULENT CONVEYANCES 223
tantamount to a continuance in possession, and a circumstance
of fraud; and he relieved the creditors against the settlement;
but it does not therefore follow that every interest taken back
for life is to be considered as fraudulent, but only where it is
so reserved for the purpose of defeating future creditors. The
meaning, therefore, of what Lord Hardwicke said in Townshend
V. Windham, is clearly ascertained by what he said in the other
cases to which I have alluded. In Lush v. Wilkinson (5 Ves.
384), a bill by a creditor subsequent to a voluntary settlement
made by one not indebted at the time, seeking to impeach the
settlement, was dismissed; and in Kidney v. Coussmaker (12
Ves. 155), a voluntary settlement was held to be fraudulent only
against such as were creditors at the time. In Sykes v. Hastings,
recently determined at the Rolls (A. D. 1814), the same rule
was acted upon, though the settlement was made under very-
extraordinary circumstances. It is clear, therefore, from the
authorities, that a voluntary settlement of real or personal prop
erty, by a person not indebted at the time, nor meaning a fraud
is good against subsequent creditors. * * * >
The bill, so far as regards the defendant, F. T., and the other
parties interested in the settlement, must be dismissed with
costs; and the usual decree taken for an account against the
representatives of S. H.^^
;!f^
JENKYN V. VAUGHAN ^ vL'^^'^
3 Drew. 419 ^-^ ?? '^SZ '^/^
(High Court of Chancery. January 15, 1856) " ^v "'^♦t
This was a bill to set aside certain indentures of post-nuptial ; '''h-v^
settlement made by George Concannen, as being fraudulent and ry*
void against creditors.
The bill was filed by simple contract creditors of Concannen
against the executrix of his will; against the sole acting trustee
of one of the deeds ; and against the widow ; the latter being the
real and substantial defendant.
In 1834 Concannen had insured his life for £1,000 ; in 1833 for
£800; and in 1832 for £300.
In 1834 he assigned the £800 policy to Gillson for securing an
advance.
23— In re Lane-Fox [1900], 2 Q.
B. 508 ace.
:^j-'
224 PREREQUISITES TO ADJUDICATION g
In 1842 he assigned the three policies to trustees to secure cer-
tain benefits to his wife, reserving to himself an absolute power
of revocation.
In 1844 he made his will, by which he gave certain property,
not including the policies, to his wife; and he gave his residue
to Fanny Vaughan, whom he made his executrix.
In 1845 he revoked the deed of 1842, and reassigned the policies
to trustees (one of whom disclaimed, leaving "W. D. Lewis, a
.defendant, the sole trustee) on trusts for his wife, again re-
(serving an absolute power of revocation.
He kept the deed in his own hands, and paid the premiums on
the policies during his life ; and died in 1852, largely indebted.
The debts of the plaintiff arose in 1852.
It was admitted that at the dates of the settlements Con-
cannen was indebted in considerable amounts, besides the mort-
gage debt secured by the deed of 1834; and there was one in
particular to a person named Bouverie, the state of which is
noticed in the judgment. But on the evidence it was not clear
whether all these previous debts had been liquidated at the
dates of the settlements, or whether some of them did not still
subsist at the time when the plaintiff's debt accrued.
The principal question was, whether, under these circum-
stances, the plaintiff could sustain a bill to set aside the volun-
tary settlements?
THE VICE-CHANCELLOR. The first question, is, whether,
in the case of a voluntary settlement, a creditor, whose debt
accrued subsequently to the execution of the deed, can file a bill
for the purpose of setting it aside. Now it is not in dispute that
(^ a subsecnient creditor is entitled to participate^if the instrument
is set aside l>y any creditor ; and I am not aware that in that
case there is any distincti^*between the two classes of creditors,
those who were so before, and those who became so after the
deed. I believe they all participate pro rata. It is clear there-
fore that a subsequent creditor has an equity to some extent,
viz., a right to participate in the division of the property if the
settlement is set aside.
Prima facie then, if a subsequent creditor has an equity, one
would suppose there could be no reason to prevent him from
filing a bill to enforce it; it is indeed possible that there may
be cases where a person who has an equity to participate has not
FRAUDULENT CONVEYANCES
225
the right to file a bill; but, prima facie, when a party has an
equity, he may file a bill to enforce it.
Now the statute of 13 Eliz. e, 5, which is referred to in this
case, avoids deeds which are made with intent to defraud or
delay creditors. The instrument must be made with the intefit
to defraud creditors. Now, no doubt an instrument may be
executed for the purpose of defrauding subsequent creditors;
and, with regard to creditors being so at the time, it is estab-
lished that it is not necessary to show from anything actually
said or done by the party, that he had the express design by the
deed to defeat creditors; but if he includes in it property to
such an amount that, having regard to the state of his property,
and to the amount of his liabilities, its effect might probably be
to delay or defeat creditors, if the court is satisfied of that, the
deed is within the meaning of the statute.
In cases where a subsequent creditor files a bill, it occurs to
me that much may depend on this (supposing there is no evi-
dence of anything to show the fraudulent intention but the fact
of the settlor being indebted to some extent), — whether, at the
time of filing the bill, any of the debts remain due which were
due when the deed was executed. In such a case, as any of theS
prior creditors might file a bill, it appears to me that a subse- 1
quent creditor might do so too; but if at the time of filing the/ ^^ /(J,
bill no debt due at the execution of the deed remains due, the^ >
distinction may be that then a subsequent creditor could not file i /
a bill, unless there were some other ground than the settlor being /
indebted at the date of the deed to infer an intention to defraudj\ /
creditors. However, I do not find any such rule laid down, and
I shall not take upon myself to lay it down positively. But if
a subsequent creditor files a bill, and you can show that the
person who executed the deed, though indebted at the time he
made it, has since paid every debt, it is very difficult to say
that he executed the settlement with an intention to defeat or
delay creditors, since his subsequent payment shows that he had
not such an intention. But it appears to me, in the absence o"
authority to the contrary, that a subsequent creditor may file a
bill, if any debt due at the date of the deed remains due at the
time of filing the bill.
When we look at the authorities, we find that in two or three
cases, where the question has been raised as to the plaintiff's
right to file a bill, being a subsequent creditor, and debts ante-
H. & A. Bankruptcy — 15
226
PREREQUISITES TO ADJUDICATION
A* . L
^
cedent have been shown still to subsist, the court, having its
attention drawn to that, has made a decree in favor of the
creditor.
/ In this case I find sufficient prima fctcie evidence to lead me
) to the conclusion that something still remains due in respect of
\ the debts which existed at the date of the deed ; there is sufficient
I prima facie evidence to justify me in directing an inquiry.
I put aside the mortgage debt secured on the policies of in-
surance. The policies, so far as the mortgage debt extended,
were the property of the mortgagee ; and what was retained and
settled was only that which remained after satisfaction of the
mortgage debt; I put that aside.
But, as to the debt to Bouverie, there is sufficient evidence to
induce me to direct an inquiry. The evidence on that debt goes
to this, — ^that to the best of the knowledge and belief of the
witness the debt consists of a balance of monies advanced by
Bouverie to Concannen, some part of which at least was ante-
cedent to the date of the settlement.
It appears to me that that justifies inquiry; and there are
besides various claims, which may turn out to establish debts
due at the date of the deed remaining unpaid.
But, in addition to the circumstances arising out of this debt
and the claims, it appears that the property which Concannen
left is extremely trivial; and at his death it is proved that he
was indebted to the extent of many thousands ; so that it is not
unnatural to suppose that there are still debts unsatisfied which
were due at the date of the deed.
As to the intention to delay creditors, it is not immaterial that
both deeds are made with general powers of revocation, which
enable the settlor to deal with the property, and that he retained
possession of the deeds till the time of his death ; and it does not
appear that any notice was given to any of the insurance offices.
All these circumstances are not, it is true, conclusive of fraudu-
lent intention ; but they have an important bearing on the ques-
tion of fraudulent or improper design.
I think, therefore, that I ought to direct inquiries, which will
be in the usual form, the form adopted in the cases cited.^^
M.
24 — See Freeman v. Pope, supra,
p. 165; Ideal Co. v. Holland [1907],
2 Ch. 157.
Cf. Lane v. Newton, 140 Ga. 415,
78 S. E. 1082.
FBAUDULENT CONVEYANCES 227
READE V. LIVINGSTON ^^^**^ /^ ""^-^
3 Johns. Ch. 481 -^-tUx^ -/^4^
(Court of Chancery, New York. September 28, 1818) ^^^.^^^
THE CHANCELLOR. This case turns upon the validity of ^
the conveyance_by Henry G. Livingston to Gilbert^spinwall. ^^
The bill charges that Livingston was indebted to John Reade, ^ ^^
the plaintiff's intestate, as early as the year 1800, in $6,000, and /^a**- ^
that, in August term. 1807, Reade obtainecLa-judgmfiat against '^^^^'-''^•^l
H. G. L., for upwards of that sum, and that $3,072 of it remains ^
unpaid. That by deed, dated the 7th of December, 1805, H. G. L.
conveyed his lands, to the amount in value of $45,000, to Aspin-
wall, in trust for his wife, and that he had no other property to
satisfy the balance of the judgment.
The answer of H. G. L., and of his wife, admitted that in
1800, there were sundry unsettled accounts between the parties,
and that they were finally, by rule of court, referred to referees,
and that the judgment upon such reference was rendered, as
charged in the bill ; they admit further, that the lands included
in the deed to Aspinwall, composed the greater part of the real
estate of H. G. L., though they deny the lands to be of the value
charged. H. G. L. states that, ^rior to his marriage, and with\
a view_to^jt, he agreed withes wife 's father to settle on her, \
andjher childreii7^30,000, and that the deed was executed in I
pursuance of that agreement. He admits the sum of $1,392.92 |
to be still due upon the judgment, and that Reade might have
obtained satisfaction out of his personal estate ; and he declares,
that he was then worth little or no property, though, at the
time of his marriage, he was worth $80,000.
It appears, by the proof taken in the cause, that the judgment
was founded upon two bonds dated in the year 1794; that the
consideration of them was a farm sold by Reade to H. G. L., and
that with the proceeds, or by the exchange of that farm, H. G. L.
procured the greater part of the lands included in the deed of
settlement. That he was married as early as the year 1791, and/
that at the date of the judgment he owned personal property to
$1,000 ; but it does not appear that he possessed any real prop-
erty free from incumbrance. Valentine Nutter, the wife 's father,
says that his wife, Mrs. Nutter, informed him just previous to
the marriage that H. G. L. had promised to settle $30,000 on his
daughter, and that H. G. L. frequently, after the marriage,
228 PREREQUISITES TO ADJUDICATION
admitted the promise, and at last, at the repeated request of the
witness, executed the deed.
The deed to Aspinwall contains no reference to, or recital of,
any previous agreement; but it is simply a deed in fee, for the
consideration of $5,000, and in trust to convey the lands, and
the rents and profits thereof, as the wife of H. G. L., by deed or
will, should direct; and, in default of such direction, in trust
for her heirs.
I have stated, perhaps, as much of the pleadings and proofs
as may be requisite to a full understanding and discussion of
the important legal questions involved in the case.
/xl._ G. L. owed_the-.Y£ry debt now in question, at the time of
I th£_ggttlement of his real estate upon his wife ;~and^li''greaFpart
1 of the lands so settled were purchaaad.withl-property procured
by that same debt. The deed of settlement was not made until
14 years after the marriage, when it is admitted, that, in the
.meantime, his estate had diminished one-half. It had no refer-
ence or allusion to any ante-nuptial contract, nor is there any
evidence in writing of such an agreement.
Upon such a state of facts, my earliest impressions were
against the soundness of the defense ; and I apprehend, there is
not a case to be met with that gives any colorable support to
such a settlement against such a creditor. But after the elaborate
argument which has been made in favor of the deed, I have con-
sidered it due to the counsel, as well as to the importance of every
question of this nature, to look into the cases, and to give to
every topic of argument a careful investigation.
[After concluding that a voluntary settlement as to existing
creditors is conclusively presumed to be fraudulent, the chan-
cellor continued] :
With respect to the claims of subsequent creditors, there is
more difficulty in arriving at the conclusion ; and I am not called
upon in this case to give any definitive opinion, for there are no
such creditors before the court. But since the subject has been
examined, I would suggest what appears to me at present, but
with my mind still open for further discussion and considera-
tion, to be the better opinion from the cases ; it is, that the pre-
sumption of fraud as to these creditors, arising from the circum-
stance, that the party was indebted at the time, is repelled by
the fact of these debts being secured by mortgage, or by a pro-
vision in the settlement; that if no such circumstance exists,
they are entitled to impeach the settlement by a bill properly
FRAUDULENT CONVEYANCES 229
;)
adapted to their purpose, and charging and proving indebtedness
at the time, so that their rights will not depend on the mere
pleasure of the prior creditors, whether they will, or will not
impeach the settlement, that the question then arises. To what
extent must the subsequent creditors show a prior indebtedness
Must they follow the dictum of Lord Alvanley, and show in
solvency, or will it be sufficient to show any prior debt, however
small, as is contended for by Mr. Atherley, with his usual ability,
in his Treatise on Marriage Settlements? (Ath. Mar. Set. pp.
212 to 219.) I should apprehend, that the subsequent creditors
would be required to go so far, and only so far, in showing debts,
as would be sufficient to raise reasonable evidence of a fraudu-
lent intent. To show any existing debt, however trifling an^
inevitable (to which every person is, more or less, subject),
would flot surely support a presumption of fraud in fact i no
voluntary settlement in any possible case could stand upon that
construction. I should rather conclude, that the fraud in tire
voluntary settlement was an inference of law, and ought to be
so, as far as it concerned existing debts; but that, as to subse-
quent debts, there is no such necessary legal presumption, and
there must be proof of fraud in fact; and the indebtedness at
the time, though not amounting to insolvency, must be such as
to warrant that conclusion. It appears, in all the cases (and
particularly in the decision of Sir Thomas Plumer since the pub-
lication of Mr. Atherley 's treatise), that a marked distinction
does exist, under the statute of 13 Eliz., between prior and sub-
sequent creditors, in respect to these voluntary settlements ; and
it is now settled that the settlement is not void, as of course,
against the latter, when there were no prior debts at the time.
The law in Massachusetts seems to be laid down according to
this view of the subject.
In Bennett v. Bedford Bank (11 Tyng, 421), there was a
voluntary conveyance to a son by a father, indebted at the time,
but not in embarrassed circumstances, or equal in debt to the
value of his property. The debt to the plaintiff did not accrue
until several years afterwards. It was held by the court, that
as there was no fraud in fact, the deed in this case was good
against the subsequent creditor, "and against all persons but
such as were creditors at the time."
But there is a case, recently decided by the Supreme Court of
Errors of Connecticut (Salmon v. Bennett, 1 Day's Conn. Rep.
230
PREREQUISITES TO ADJUDICATION
N. S. p. 525), which lays down a rule somewhat different from
that which I have deduced from the English cases.
The question arose in an action of ejectment. The plaintiff
had purchased Virginia lands of Sherwood, in 1794, and paid
him the purchase money. In 1809, by a decree in chancery, the
sale was annulled, on the ground of fraud, and the purchase
money decreed to be refunded, on condition that the plaintiff
executed a release. This was done, and he afterwards, in 1814,
levied an execution founded on that decree, on lands which
Sherwood owned in 1794, but which he had conveyed to his son
in 1798, in consideration of natural affection only, and which
lands the son had, in 1802, conveyed to the defendant, with
knowledge of the deed to the son. It was proved, that when
Sherwood executed the deed of gift, he was not indebted to any
person, except to the plaintiff, in the manner stated, and that
the lands conveyed did not contain more than one-eighth part
of his real estate. But it was admitted that long before the levy
of the execution, he had conveyed all his real estate, and was
at that time, destitute of property.
One question was whether the deed to the son, being voluntary,
was not fraudulent as against the plaintiff ; and as the opinion of
the court was on this point, I need not notice any other. It was
also made a question, at the bar, whether the plaintiff was to be
deemed an existing creditor at the time of the deed to the son;
but as the court assumed the fact of an existing indebtedness
at the time of the conveyance, I need not notice that point.
The judgment of the court was in favor of the defendant,
and the opinion of eight of the judges, as delivered by the chief
justice was, that a distinction existed in the case of a voluntary
conveyance, bgiffi^en the children of the^antor_and strangers^
'^d that mere indebtedness at the time ^jill_jiot^_in_all_caseSj_
rgoder a volaatary conveyance void as to^creditors, where it is
a provisiOTi for a child; that an actual or express intent to de-
fraud need not be proved, for this would be impracticable in
many instances where the conveyance ought not to be estab-
lished, and it may be collected from the circumstances of the
case ; that if there be no fraudulent intent, and the grantor be
/in prosperous circumstances, unembarrassed, and not consider-
/ ably indebted, and the gift a reasonable provision for the child,
leaving ample funds unencumbered, for the payment of the
\ grantor's debts, the voluntary conveyance to the child will be
Vyalid against existing creditors. But if the grantor be con-
FRAUDULENT CONVEYANCES 231
giderably indebted_a5d_embarrassedi_^and on the eve of bank-
ruptcy, or iF the gift be unreasonable, disproportioned to his
property, and leaving a scanty provision for his debts, the con-
veyance will be void, though there be no fraudulent intent. And
it was concluded, that, under the circumstances of that case the
indebtedness of the grantor, at the time, to the plaintiff, was
not sufficient to affect the conveyance to his son.
The court do not refer to authorities in support of their opin-
ion, and, perhaps, they may have intended not to follow, strictly,
the decisions at "Westminster Hall, under the statute of 13 Eliz.
I can only say that, according to my imperfect view of those
decisions (and by which I consider myself governed), this case
was not decided in conformity to them ; but I make this observa-
tion with great deference to that court. There may be loose
sayings, and mere notes of cases, from which nothing very cer-
tain or intelligible can be deduced; but I^have not been able to
find the case in which a mere ^voluntary conveyance to a wife or
child has been plainly and directly held good against a creditor
existing at the time. The cases appear to me to be upon that point
uniformlyTnlEvbr of the creditor. The vice-chancellor, in Hollo-
way V. Millard, says, in so many words, that "a, voluntary dis-
position, even in favor of a child, is not good, if the party is
indebted at the time." The cases of St. Amand v. Barbara,
Fitzer v. Fitzer, Taylor v. Jones, and, indeed, the general lan-
guage throughout the cases, seem to me to establish this point.
So Lord Hardwicke observed, in Lord Townshend v. Windham,
that, * ' He knew of no ease on the 13 Eliz. where a man, indebted
at the time, makes a mere voluntary conveyance to a child, with-
out consideration, and dies indebted, but that it shall be con-
sidered as part of his estate for the benefit of his creditors."
In a preceding part of the same page, he said expressly, there
was "no such case," unless the conveyance was '*in consideration
of marriage, or other valuable consideration ; ' ' and he draws the
distinction between prior and subsequent creditors, in saying
that if the voluntary conveyance of real estate, or a chattel in-
terest, was by one not indebted at the time, and was for a child,
and no particular evidence or badge of fraud as against subse-
quent creditors, it would be good. The decision in that case
was, that a general power of appointment given over an estate,
in lieu of a present interest in it, having been executed volun-
tarily, though for a daughter, was to be deemed assets in favor
of creditors.
232 PREREQUISITES TO ADJUDICATION
If the question rests not upon an actual fraudulent intent (as
is admitted in all the cases) , it must be a case of fraud in law,
/arising from the fact of a voluntary disposition of property,
) while indebted; and the inference founded on that fact cannot
/ depend on the particular circumstances, or greater or less de-
/ gree of pecuniary embarrassment of the party. These are mat-
ters for consideration, when we are seeking, as in the case of
subsequent creditors, for actual fraud. I apprehend it is, upon
the whole, better and safer not to allow a party to yield to
7 temptation or natural impulse, by giving him the power of
/ placing property in his family beyond the reach of existing
/ creditors. He must be taught by the doctrines of the court, that
tlie claims oijustice,aja.pHog4c)Llhose^of""affection. The inclina-
tion of my mind is strongly in favor of the policy and wisdom
of the rule, which absolutely disables a man from preferring,
by any arrangement whatever, and with whatever intention, by
gifts of his property, his children to his creditors. Though hard
cases may arise in which we should wish the rule to be otherwise,
yet, as a permanent regulation, more good will ensue to families,
and to the public at large, by a strict adherence to the rule, than
by rendering it subservient to circumstances, or by malting it to
depend_upon a fraudulent intent, which is so diffigult to_ggcer-
tain^and frequently so painful to infer.
The effect of these donations, by a debtor, inter vivos, is much
discussed by Voet in his commentaries, on the Digest, lib. 39,
tit. 5, De Donationibus, s. 20; and he concludes that the prop-
erty in the hands of the donee is chargeable with the existing
debts of the donor. Ex eo autem, quod donator competentiae
gaudens beneficio deducit prima aes alienum, facUis est decisio
qiKiestumis, utrum donatis omnibus bonis, aut majore eorum
■parte, donatarius ad aes alienAim dona/ntis solvendum obUgatus
sit? — Aequum haudforet, ex liberalitate^defuncticreditores ejus,
donations antiquiores (nam qui postea demum credideru/nt, ex
donatione praecedente jam perfecta videri nequeunt fraitdati
esse) credito suo defraudari, satiusque visum, donata revocori per
actionem PauUanam, etiarni a dmiatorio in bona fide posit o ao
fraudis haud participe. Dum melior esse debuit conditio credi-
tarum de damno evitando agentium, quam donatarU agentis de
lucro captando. Secundum hodierni juris simplicitatem donatar-
ium a creditoribus donatoris recta via absqiic circuitu ad solven-
dum aes alienum donuntis compelli posse, post multos alios citatos
tradit. Graenewegen, ad. I., 28 ff. h. t.
FRAUDULENT CONVEYANCES 233
This learned civilian makes the same distinction that our law
does, between debts existing at the time, and debts created subse-
quent to the gift.
The same doctrine, on this subject, in all essential respects, is
adopted in France. The gift of specific articles does not charge
the donee with the debts of the donor, unless the latter knew, or
ought to have known, that he was not solvent at the time; in
which case the gift is held to be fraudulent. But in other more
general dispositions of the whole, or part, of his estate, the prop-
erty in the hands of the donee is subject to the existing, though
not to the future, debts, to the value of the gift. ( Trait e des
Donat. entre vifs. § 3, art. 1, % 2. Oewvres pasth. de Pothier,
torn. 6.)
2. Oeuvres posth. de Pothier, torn. 6.)
The question does not arise, in this case, as to what extent
these voluntary dispositions of property can be reached. Hero
the land itself exists in the hands of the trustee for the wife,
and we have no concern, at present, with the question, how far
gifts of chattels, of money, of choses in action, of corporate, of
public stock, or of property alienated to a &07wi fde purchaser,
can be affected. The debt in the present case was large, and the
disposition extravagant, being of the greater part of the real
estate ; and we havg-^O-gZ^dence of sufficient property left un-
^neumbered. Even if we were to enter into the particular cir-
cumstances of the case, I should have no doubt of the justice of
the creditor's claim.
I shall, accordingly, decree, that a reference be had to ascer^
tain the balance of principal and interest due to the plaintiff, \
and that so much of the lands, included in the conveyance to I
Gilbert Aspinwall, as the master shall judge sufficient to satisfy /
that amount, with costs, be sold; and that the said G. A. be/
directed to join in the conveyance.
Decree accordingly. y, ^/_Y
HARLAN V. MAGLAUGHLIN .*c^WV ^^ li A^
90 Pa. St. 293 *J*^=^^ c^£.,^ ^
(Supreme Court of Pennsylvania. October 6, 1879) A^ '"-/-r«*^
Ejectment by Maud Maglaughlin and Wilmer K. Maglaughlin,Ly- ' -
^f^t '^
by their guardian, William A. Coffey, against AnneHarlan and
David Sip^e for two lots in Carlisle, Pennsylvania. ^^"^ '
On March 31, 1859, John Mell conveyed by a deed a lot of p'^-^^ ,
ground to Isabella Noble, wife of John B. Noble, for $50. This
234 PREREQUISITES TO ADJUDICATION
deed was duly recorded August 27, 1859. To the same grantee
William Blair conveyed, by deed, a lot of ground on March 20,
1865, for $200, which deed was recorded March 28, 1868. On
March 5, 1869, John B. Noble made a note payable to Christ.
Kindler, upon which suit was brought, and judgment recovered
for $129.47, with interest from 22d September, 1869. A fi. fa.
and vend. ex. issued upon this judgment and the above-men-
tioned lots were sold, as the property of John B. Noble, in 1870,
to Charles E.^IagTaugHITn, whose~Tieirs ^ring this ejectment.
Isabella Noble, dying about 28th June, 1875, letters of ad-
ministration on her estate were issued to J. J. Good, who, under
an order of the Orphans' Court of Cumberland County, sold
the above lots, October 31, 1877, to David Sipe, one of the
defendants.
At the trial, before Herman, P. J., the plaintiff gave evi-
f dence tending to show that JohnB. Noble paid for these lots^and
j directed the name of his wife to be used as that of the grantee
tHerein. There was also evidence that, whenjthe_first_deed w^
ma^eZ Noble was indebted to different parties, in the sums^of
$3.37, and $60, payment of which was not shown; that, in the
year 1859, after the Mell deed was made, debts were contracted
to the following amounts: May 10th, $18; May 20th, $45;
November 29th, $39 (reduced October 14, 1861, to $35.49) ; in
the year 1860, as follows : January 13th, $60, which was paid;
February 22d, $21.92, likewise paid; judgment April 14, 1860,
for $5 penalty, for use of scales at suit of Borough of Carlisle ;
and in 1862, May 14th, $4.02, which was paid; another, originally
$65, but, 26th November, 1862, reduced to $6.50.
/ As_evidence_of^ fraudulent^ on the part of Noble in
having these conveyances made toKis wife, one Foote testified
that Noble "told me before the war, in 1859, that he was in a
I good bit of trouble, and that he was going to put what he had,
\his property, over into Belle 's hands. He called his wife Belle. ' '
* « •
The verdict was for the plaintiffs. Defendants took this writ,
and, inter alia, assigned for error the answers to the above points.
MR. JUSTICE GORDON delivered the opinion of the court.
tThe court below fell into an error which pervades every part
: this case. A single point and answer will serve to develop
this error, and determine the material questions involved in this
controversy. The counsel for the defendants below, plaintiffs
FRAUDULENT CONVEYANCES 235
in error, asked the court to say to the jury that "to_rendfi]L.a
voluntary conveyance void, as to subsequent creditors, it must
appear that it was made in contemplation of future indebted-
ness, and, until this was shown, the plaintiffs could not call upon
the defendants to prove the conaderation for the couv^^^CfiJtlL-
Isabella Noble_throu^h whom they claim title." The court an-
swered: "This would be so, if , at^'the time of the voluntary con- \
veyance, no debts of the grantor existed, the recovery of which /
would be thereby delayed, hindered or defeated. Where there
are existing debts at the time, and the conveyance has delayed,
hindered or defeated their recovery, this circumstance raises a
suspicion of fraud from which an intent to defraud subsequent
as well as existing creditors may be inferred."
This language is borrowed from the case of Thompson v.
Dougherty, 12 S. & R. 448, where it is applied, as in the case in
hand, to debts contracted after the execution of the voluntary
grant. It is, however, mere obiter dicta, not called for by the
facts in the case, and not true in law. Notwithstanding the many
loose declarations in the books to the contrary, the statute_13
Elizabeth does not make voluntary conveyances void as to f ature
creditors7~unIess th_ei:e_ -i&.Jsome2 evidence ^o_indicate_that the
grantor intended to withdraw his property from the^each_of
such creditors :_Snyder v. Christ, 3 "WrigEt^499. And it is
properly said^in Williams v. Davis, 19 P. F. Smith 21, that even
an expectation of future indebtedness will not render a voluntary
conveyance void where there is no fraud intended by such con-
veyance. And so, also, in Thompson v. Dougherty, Mr. Justice
Duncan, citing Saxton v. Wheaton, 8 Wheat. 229, says, "Chief
Justice Marshall decided that a post-nuptial settlement on a
wife and children by a man who is not indebted at the time,
was valid against subsequent creditors, and that the statute does
not apply to such creditors if the conveyance be not made with
a fraudulent intent." A similar ruling will be found in Town-
send V. Maynard, 9 Wright 198, and in Greenfield's Estate, 2
Harris 489, In the latter case, which involved a deed of trust
of all the grantor's property, it was alleged by Mr. Justice Bell,
to be a sound rule of law that subsequent indebtedness cannot
be invoked to invalidate a voluntary settlement made by one not
indebted at the time, or who reserves sufficient to pay all existing
debts, unless there be something to show that the settlement was
made in anticipation of future indebtedness. It is further said
that though some doubt was thrown on this principle by Thomp-
236 PREREQUISITES TO ADJUDICATION
son V. Dougherty, it was afterwards dissipated by Mateer v.
Hissim, 3 P. & W. 161. Furthermore, the case of Snyder v.
Christ, above mentioned, which is very like the case in hand,
settled any doubts that may previously have existed as to the
effect of subsequent indebtedness. For though it seems to have
been generally admitted that the statute is not operative as to
such indebtedness, yet the admission has been so beclouded by
apparently inconsistent dicta and qualifications, as to render its
meaning obscure and unintelligible. The settlement is good
against after contracted debts if the settlor is unindebted at the
time, or if he has made provision for existing debts, and so on.
But how, if there be existing debts not provided for, and how if
the settlement is fraudulent as to such debts? Will the settle-
ment, in such case, be void as to all future indebtedness? Is
there no place for repentance and atonement by the after pay-
ment of existing debts, or may after creditors, notwithstanding
such payment, avoid the deed? Justice Duncan answers these
questions by saying : "If the jury find a prior indebtedness and
any of that class of creditors is defeated by the settlement, then,
my opinion is, that the property conveyed is to be considered as
part of the estate of the debtor for the benefit of all his creditors.
I know no midway. When a statute declares a matter void it
thrusts all to destruction like a tyrant, while the common law,
like a nursing father, makes that void where the fault is and
preserves the rest." In this, singularly enough, the fact is
overlooked that the statute makes the gift or deed void, only,
as to those who may be hindered, delayed or defrauded thereby,
and that in this it follows the common law. This oversight, how-
ever, would seem to be accounted for by the fact that the opin-
ion of Chief Justice Spencer in Anderson v. Roberts, 18 Johns.
526, is adopted, wherein it is said, that the Statute of 13 Eliza-
beth protects creditors whose debts accrue subsequently to the
fraudulent conveyance equally as those whose debts were due
when it was made.
/it would seem to be on this that Justice Duncan founds the
/ assertion, already referred to, that the existence of prior debts
/ creates a suspicion of fraud, which can only be repelled by show-
ing that the subsequent creditors were provided for in the set-
\Jtlement. This, as it stands, is unintelligible ; for one cannot pro-
vide for what he does not anticipate ; if he has no future debts
in contemplation, how is it possible to make provision for them ?
It, in fact, simply amounts to saying that the statute is operative
FRAUDULENT CONVEYANCES 237
upon subsequent, as well as present, indebtedness. In like man«
ner, it has been said, the settlor must not only retain property
enough to satisfy present debts, but also to answer the reason-
able probabilities of the future. But this rule is unreasonable
in this, thatjtj)revents men of limited means from making any
settlement whatever upon their wives^nd children, a result cer-
taTnly notjeontempTated by the statute^ Besides this, the attempt
to keep men and women in judicTal leading strings all their
lives, to direct what they shall or shall not do with their own
property, is a matter which commends itself neither to sound
legal reason nor to common sense. If a man is in debt, he may
not give away his property until he has paid or provided for
such debt; the reason for this is found in the principles of com-
mon honesty. If he contemplates future indebtedness, he must,
for a like reason, provide for it, but he must not provide for
what he does not anticipate, and for what may never occur. And'
if, without concealment, a man chooses to give away all his
estate, or settle it upon his wife and children, what right has a
subsequent creditor to complain? It did him no harm ; he gave
the~grantoTHo'credit because©? such property ; he is, therefore,
neither cheated nor impoverished by such gift. Furthermore,
if A, by a voluntary conveyance, defrauds B this year, how is
C, whose debt has no existence until ten years after, defrauded
by that same conveyance ? It certainly will not do to say that
because B was cheated therefore C is cheated, for between B
and C there is no possible connection or privity. But if C has
not been defrauded by the grant, then, if the statute means
what it most expressly says, he cannot impeach it.
We turn, therefore, with satisfaction to the case of Snyder v.
Christ, where we have the plain and unambiguous declaration,
that the subsequent creditor can avail himself only of that fraud
which is practiced against himself. The doctrine thus announced
is made the more positive in that it is said, if the creditor knew
of the voluntary conveyance when he gave the credit, he could
not be defrauded thereby, and, hence, could not impeach it.
This case, not only from the direct manner in which the prin-
cipal subject of discussion is treated, but also by reason of the
facts upon which it depends, must be regarded as a final deter-
mination of the question in hand.
These facts are briefly as follows: John Snyder, being the
owner of a tract of one hundred acres of land, conveyed it to
one John Reger, in trust for the use of himself and wife for
)
238 PREREQUISITES TO ADJUDICATION
their joint lives and the life of the survivor of them, with re-
mainder to two children of the wife, and to such children as
the grantors might have. This was all the real estate Snyder
owned, and it was in proof, that at the date of the deed, his
debts amounted to some $200, and that his personal property-
did not exceed in value $150. Furthermore, he had expressed
apprehensions of a claim for damages for a breach of promise
suit of marriage, and, within a few days after the making of the
deed, he had borrowed $200, and had also contracted the debt,
on_a judgment for which the property in suit was sold.
/ Here, then, we have every element necessary for a test case.
I A voluntary deed in trust of all the grantor's real estate, pro-
viding, inter alia, for himself for life ; existing debts unprovided
for, and as to which this deed was undoubtedly fraudulent; no
r property reserved for the reasonable probabilities of the future,
I an immediate contraction of subsequent debts, and an expressed
^apprehension of a pending claim for damages. It was, never-
theless, held, that of these facts the subsequent creditor could
not avail himself, unless he could further show that a fraud was
intended against himself. In other words, these facts standing
alone, did not make for him even a prima facie case.
Snyder v. Christ was followed in Monroe v. Smith, 29 P. F.
Smith 459, in which it was said that a deed, void as to existing
creditors, by reason of the grantor's fraud, is not necessarily
void as to subsequent creditors; that it is bad only as to those
it is intended to defraud.
It is scarcely necessary to say that these cases rule the one
now under consideration. The deed of John Mell to Isabella
Noble was executed on the 31st of March, 1859, and was re-
corded in August of the same year. The deed of William Blair
to Mrs. Noble was made March 20, 1865, and was recorded 28th
^f March, 1868. The judgment of Kindler v. John B. Noble,
upon which the property in dispute was sold, was founded on a
note dated March 5, 1869, ten years after the date of the first
deed, and nearly three years after the date of the second. "When,
in addition to this, we reflect that Noble 's debts at no time were
large ; that the testimony of Foote relates to declarations made
by Noble ten years before Kindler 's debt had an existence; that
there is not one particle of evidence, direct or indirect, that a
fraud was intended on future creditors, we must certainly eon-
FRAUDULENT CONVEYANCES
239
r
elude that the plaintiffs had no ease, and that the court should
so have instructed the jury.
The judgment is reversed, and venire facias de novo awarded.^^
WASHINGTON NAT. BANK v. BEATTY^ ^-"ff^ ^
77 N. J. Eq. 252, 76 Atl. 442 AJ*-*"^ v^^
(Court of Errors and Appeals of New Jersey. June 21, iMO) yftx/ y ^i
DILL, J. This appeal from the Court of Chancery brings up
for review a judgment dismissing the biU in a creditor 's action
to set aside_a voluntary conveyance of real estate. The bill
charges the transaction as l&eing^* in violation of the statute en-
titled 'An act for the prevention of frauds and perjuries,' ap-
proved March 27, 1874." Rev. St. 1874, p. 299. There is no
element in the case, either by way of pleading or proof ,Jhat-jtlie^
complainant bank gave any credit to the defendant relying^ugon
h5^ ownersEip^^oT the property~inr"question. The answer, deny-
ing the material allegations of the bill^ specifically raises the
25— Schell V. Gamble^ JL53_Cal.
448; Cartersville First Nat. Bank
V, Bayless, 96 Ga. 684; Springer v.
Bigford, 160 111. 495; Stumph v.
Bruner, 89 Ind. 556; Brundage v.
Chenoworth, 101 Iowa, 256; Shep-
pard V. Thomas, 24 Kan. 780; Wil-
liams V. Kemper, 99 Minn. 301;
Simmons v. Ingram, 60 Miss. 886;
Cole V. Cole, 231 Mo. 236; Ayers v.
Woleott, 66 Neb. 712; Crawford v.
Beard, 12 Ore. 447; Aldons v. 01-
verson, 17 S. D. 190; Schreyer v.
Scott, 134 U. S. 405, ace.
T"^"It is true, that it has been held
! in some cases, that where a con-
veyance by a debtor was fraudulent
in its inception as to his creditors
at the time, it will be so treated as
! to subsequent creditors. But these
' cases must rest upon one of two
; principles, the property was either
i so situated that it enabled the debt-
or to obtain credit upon the faith
of it, or the fraudulent vendee was
regarded as a trustee under the
secret arrangement between the
parties, and in virtue of such secret^
understanding, bound at least so far
as his word or such contract could
bind him, to account to the fraudu-
lent vendor. * * * In the pres-
ent case, however, it is neither
shown that the debts were con-
tracted upon the faith of the prop-
erty, nor that the defendant was in
any manner a trustee for, or ac-
countable to, her husband." Winn
V. Barnett, 31 Miss. 653.
"It seems that the fraudulent in-
tent should relate to or affect sub-
sequent creditors, and the burden
of proving the necessary ingredients
of the fraud is placed upon the sub-
sequent creditors. Where it is not
simply a case of subsequent cred-
itors seeking to share with prior
creditors in the proceeds, but the
case is, as here, that of a subse-
quent creditor alone seeking to in->
validate the conveyance, and subject/
the land to sale for his benefit, tha
prior creditor, to defraud whomi
alone the conveyance was made, hav-[
240
PREREQUISITES TO ADJUDICATION
issue that the firm of commission merchants, hereinafter referred
to, were not at the time of the conveyance or subsequently,
creditors of the defendant, within the purview of the statute.
The essential facts of the case are within a narrow scope. In
1894, David C. Beatty, a farmer, consigned certain farm produce
to a firm of commission merchants in New York. They failed to
remit the proceeds. Beatty, in his wrath, exposed to public
view a card on which he had written ' ' All fruit shippers beware
of" [naming the commission merchants]. "They are damned
frauds." Two days later, the commission merchants wrote,
threatening to sue him for $100,000 damages. This so alarmed
the farmer that he put his property out of his hands, transferring
the farm which he owned and the mortgages he held on another
farm to his son without consideration, and at once duly recorded
the conveyances. The complainant offered no evidence to con-
trovert Beatty 's statement that the commission merchants were
frauds in that they converted to their own use proceeds due him.
The case shows affirmatively that the commission merchants
never did more than to threaten Beatty and never proceeded, in
ling been paid by the grantee, the
/plaintiff §luiuld_show jyiatJbhfi_con-
) veyan££iJS5:a»-iM2fintijiuiiig^_frauxl^and
not rely solely on the fact that it
I was made to defraud the prior cred-
itor." Stumph V. Bruner, 89 Ind.
556, 561.
' ' Now it is true that the fact that
a person has entered into a haz-
ardous business, or engaged in a
speculative enterprise, at or soon
after the execution of a voluntary
conveyance, is strong evidence of a
fraudulent intent. It evinces a de-
sire to reap the benefit for himself
if successful, and escape responsi-
bility if unlucky. Nevertheless,
each case must stand upon its own
footing, and no legal rule can be
adopted as to the quantity of proof
or the particular complexity of facts
which will annul a conveyance upon
this ground. The character of the
business, the degree of pecuniary
hazard incurred, the amount of
property remaining in the grantor,
the value of the property conveyed.
the acts and words occurring coin-
cidently with the transaction, are
to be viewed together in solving the
question of fraudulent intent."
Hagerman v. Buchanan, 45 N. J.
Eq. 292, 302.
"It is doubtless true, as con-
tended by the defendant, that a
finding of fraud as to subsequent
creditors would not be warranted
by the simple proof that the trans-
fer was made with a design to set-
tle the property upon the defendant
so that it should not be exposed to
the hazards of his future business
or liable for any future debts which
he might contract. Winchester v.
Charter, 12 Allen. 606, 611; Mowry
V. Reed, 187 Mass. 174, 177, and
cases cited. It must further appear
that at the time of the conveyance
he had an actual intent to contract
debts and a purpose to avoid by
the conveyance the payment of them.
Stratton v. Edwards. 174 Mass. 374,
378, and cases cited." Gateley v.
Kappler, 208 Mass. 426, 428.
FRAUDULENT CONVEYANCES 241
any way, to establish the verity of their claim for damages,
never sued him, and never obtained any judgment against him,
but v^^ere content to let the matter stand in statu quo until the
statute of limitations had intervened. Admittedly, Beatty made
the transfer for the purpose of making himself judgment proof
against, these commission merchants, if they should sue him and
if the judgmenFshould go~against him. There is no evidence of
any other claims or debts against Beatty. The bank^whichjwag
not organized until five years after the conveyance by Beatty,
obtained_aJu(dgment against him on an accommodation note^ 12
years after the transfer, and to collect this judgment it now
seeks to set asi3re~the"3eeH. The vice chancellor below dismissed
the bill, holding: First. That under the evidence the commis-
sion merchants whose threat to bring suit induced the transfers,,.^
were, within the meaning of the statute of frauds^ creditors at/ /
the Jime the, transfers were made, and that the deeds were fraud-,
ulent as to them. Second. That a conveyance made for the pur^
pose of defrauding a single existing creditor is not void as
against subsequent creditors, the incurring of the debts to whom ,
was not within the contemplation of the debtor at the time when
the conveyance was made.
We concur in the action of the vice chancellor in dismissing
the bill, but not with his conclusions of law. Taking them in'
their inverse order, the first legal question is whether a creditor
whose debt is contracted subsequent to the execution of a deed,
which is fraudulent as against a single existing creditor, in
order to have such deed set aside, must show not only that the
deed was fraudulent as to such existing creditor, but also that
it was made with intent to defraud such persons as should, sub-
sequent to its date, become creditors of the grantor. The vice
chancellor held to the afiirmative of this proposition, relying to
some extent upon the statement of Vice Chancellor Pitney in
Gray v. Folwell, 57 N. J. Eq. 446, at p. 456, 41 Atl. 869, and
following the rule laid down by Vice Chancellor Van Fleet in
Gardner v. Kleinke, 46 N. J. Eq. 90, 18 Atl. 457. In our judg-
ment the rule laid down by Vice Chancellor Van Fleet in Gard-
ner V. Kleinke, supra, and the holding of the vice chancellor in
this case below, in accordance therewith, were erroneous.
The effect of the statute is to make a voluntary deed fraud-
ulent as against existing creditors, without regard to the inten-
tion with which it was executed. It is fraudulent in law. This
was settled in 1879 by this court in Haston v. Castner, 31 N. J.
H. & A. Bankruptcy — 16
242 PREREQUISITES TO ADJUDICATION
Eq. 697, The effect of a voluntary conveyance upon the rights
of subsequent creditors was decided by us in 1889. Hagerman
V. Buchanan, 45 N. J. Eq. 292, 17 Atl. 946, 14 Am. St. Rep. 732.
It is true that it was considered by the Court of Chancery in
/Gardner v. Kleinke, supra, that Haggrman v. Buchanan estab-
j lished^e~principTe that a subsequent creditor was not entitled
to have a voluntary conveyance set aside unless he could show
that it was made with intent to defraud such persons as should,
subsequent to its date, become creditors of the grantor. The
following language of Mr. Justice Reed in the opinion was cited
by Vice Chancellor Van Fleet as requiring that conclusion: "A
voluntary settlement can be attacked by a subsequent creditor
only upon the ground of the e2dstejHieuja£^aii_actual intent in the
mind of the parties, at the time of the execution of the convey-
ance, to hinder, delay, or defraud creditors by means of the
deed." But the citation does not justify the conclusion. In
fact, it declares that the test is an actual intent in the mind of
the grantor to defraud creditors — not subsequent creditors alone,
but any creditors — and that this is the principle intended to be
established by that decision is made plain by the subsequent
language of the opinion, where Mr. Justice Reed, speaking of
\ subsequent creditors, says: *'An actual fraudulent intent to
\ defraud some creditors must be proved."
' The true rule is that, when a conveyance is attacked by a sub-
sequent creditor, the question to be determined is whether the
conveyance was fraudulent. The question is the same when
attacked by an existing creditor ; the only difference is the method
of proof. When an existing creditor attacks the conveyance, and
shows that his debt was incurred before, and was existing at
the time when, the conveyance was made, the law, without fur-
ther proof, raises a conclusive presumption of fraud so far as
^at creditor is concerned. When^^iov^^r^ the_convejj^nce is
I attaskejl, bjrjL_subsgquent^ credit^ he^ must proye frau9~~a8 u
lfactj^that^,^an actual f ra^idulent Jntent _to defraud_some
Vereditor. ' ' By some creditor is meant any creditor, either exists
ing at the time when the conveyance is made or subsequently.
If this be shown, the conveyance is proven to be fraudulent, and
it may be set aside at the instance of any class of creditors, with-
out regard to the time when the debt came into existencc^*^
26 — See 20 Cyc. 424, note 12, for Co., 115 Ala, 668; Buchanan v. Wil-
many eases in accord. liams (Ark.), 160 S. W. 190; Mu-
27 — Prestwood v. Troy Fertilizer lock v. Wilson, 19 Colo, 296; Wood-
FRAUDULENT CONVEYANCES 243
The next question is whether, under the evidence, the com-
mission merchants, who asserted the claim for damages upon an
alleged liability, were proven to be existing lawful creditors or
other persons named in the statute entitled to set aside the con-
veyance as fraudulent against them.
It was necessary for the bank, as a subsequent creditor, to
prove; (1) A voluntary conveyance; (2) an existing creditor
or other person having a lawful claim or debt within the mean-
ing of the statute; (3) an actual intent on the part of the de-
fendant by means of the deed to delay or hinder some creditor,
existing or subsequent.
Conceding that an actual intent on the part of the defendant
to defeat ajiy judgment which the commission merchants might
have obtained is proven, the question still remains whether they
come within the purview of the statute. The rule, both in Eng-
land (Twyne's Case, 3 Coke, 82), and in this state, is that the
statute extends its protection to all persons having a valid cause
of action arising from torts as well as from contracts. Boid v.
Dean, 48 N. J. Eq. 193, 21 Atl. 618 ; Post v. Stiger, 29 N. J. Eq.
554 ; Scott V. Hartman, 26 N. J. Eq. 89 ; Thorp v. Leibrecht, 56
N. J. Eq. 499, 39 Atl. 361.28 Nevertheless, a tort claimant, to
place himself in the position of a lawful creditor or person
competent under the statute to set aside a voluntary convey-
ance, must reduce his claim to judgment, and thus establish a
legal debt against the fraudulent grantor. When his claim has
thus been liquidated and established as a lawful debt, he may
attack a voluntary conveyance made after the liability arose
and before suit was brought, to defeat his debt, on the theory
that such judgment when once obtained relates back and es-
tablishes a debt as of the time when the original cause of action
accrued.2»
bury V. Sparrel Print., 187 Mass. proof of an actual intent to de-
426; Jones v. Light, 86 Me. 437; fraud existing creditors. Upon thia
Cook V. Lee, 72 N. H. 569; Treze- question the authorities do not seem
vant V. Terrell, 96 Tenn. 528; Mc- to be in harmony. See Bump,
Lane v. Johnson, 43 Vt. 48; John- Fraud. Conv. c. 13." But see
son V. Wagner, 76 Va. 587; Silver- Herschfeldt v. George, 6 Mich. 456;
nail V. Greaser, 27 W. Va. 550, ace. Hopson v. Paine, 7 Mich. 334.
In Cole V. Brown, 114 Mich. 369, 28— See Eosen v. Levy, 120 Tenn.
400, the Court said: "We are not 642, 113 S. W. 1042.
called upon to determine whether a 29 — See 20 Cyc. 430, for citation
subsequent creditor can successfully of many cases in accord.
attack a conveyance by the sole "At the time of the execution of
244
PREREQUISITES TO ADJUDICATION
The complainant failed to bring this case within the rule that
if after a person has incurred a liability for a tort, and before
suit brought upon it, he makes a voluntary conveyance or settle-
ment of his property, and judgment afterwards goes against
him for the tort, the conveyance is void as against that judg-
ment. See Boid v. Dean, 48 N. J. Eq. 193, 203, 21 Atl. 618. A
subsequent creditor who attacks a voluntary conveyance as in
fraud of a person at the time of the conveyance, claiming dam-
ages based on the tort of the grantor, must make legal proof of
the verity and legality of the claim. See Baker v. Oilman, 52
Barb. (N. Y.) 26. A judgment inJ[ayor of the claimant and
against_the tort-feasor_wouldbe conclusive evidence. What
further or other proof would be equivalent thereto we are not
called upon in this case to decide, for the complainant, upon this
point, offered no evidence. The verity of the claim of the com-
mission merchants has not been established by any judgment or
competent proof, and the complainant bank, therefore, failed to
prove that the commission merchants were lawful creditors or
other persons within the meaning of the statute, the intent to
defraud whom would vitiate the conveyance. As against claims
and demands, the verity of which is never established by any
judgment or competent proof, the statute does not forbid con-
veyances or assignments or declare them to be void.
Therefore, upon the ground stated in this opinion, the judg-
ment of the court below dismissing_thfi-Jiill,JiL.C(^plainitis
{ADSWORTH V.
^ 32 Minn.
SCHISSELBAUER
84
(Supreme Court of Minnesota. May 15, 1884)
Plaintiff brought this action in the District Court for McLeod
CountyTalleging injijs complaint the recovery, on April25, 188^,
the conveyances, which Mrs. Lewis,
the plaintiff below, sought to have
set aside as fraudulent and void as
to creditors, she was not a creditor
of the grantor, Thomas Evans.
True, she had a valid cause of ac-
tion against him, at that time, but
one sounding in tort, and which was
not asserted even by bringing suit
thereon, till a month or more there-
after. The existence of such a cause
of action clearly does not establish
the legal relation of debtor and cred-
itor between the wrongdoer and the
party injured. Evans v. Lewis, 30
Oh. St. 11, 14, See Bigelow Fr.
Conv. (Knowl ton's ed.), p. 194 n.
FRAUDULENT CONVEYANCES 245
of a judgment in Justice Court in the same county, in favor of
one Albrecht and against defendant, A. Schisselbauer, for $66.55,
the cause of action being a promissory note made by hfm; the
issuing and return unsatisfied of an execution from the Justice
Court; the subsequent docketing of the judgment in the Dis-
trict Court for the same county on January 24, 1883, and an
assignment to the plaintiff filed in the same court on January
25, 1883. He also alleges the recovery and docketing of a judg-
ment in his own favor against the same defendant, on January
13, 1883, in Justice Court in the same county for $92.40, in an
action founded on express contract; the issuing and return un-
satisfied of an execution from the Justice Court; the docketing
of the judgment~in the DistricT TTourt Tor the same county on
January 24, 1883. The complaint also states that on January
25, 1883, and after the assignment to plaintiff, executions on
the two judgments issued from the District Court, and were
delivered to the proper officer for service, who returned them
wholly unsatisfied. That on March 24, 1882, and after he hac
become indebted upon the causes of action on which the judg-
ments were rendered, the defendant, A. Schisselbauer, and the
defendant, Barbara, his wife, cgnveyed^to defendant, Dorman,
lots 1, 2, 3, 6 and 7 in block 7 in the platted portion of Glencoe
in McLeod County, and containing more than one acre, with
intent to defraud the creditors of the former, and especially the
plaintiff; that Dorman took the deed with knowledge of the
fraud, and on April 15, 1882, conveyed the same property to
defendant, Barbara, without any consideration; that both dee3s
were recorded. '
Judgment is demanded _that_jeaclL-o£-tha,^eds ^e ^declared
fraudulent^nd void, and be cancelled of record; that each of
the juHgments be adjudged to be a lien on the real estate, and
that it be adjudged to be subject to levy and sale on execution
for the satisfaction of the judgments, with the general prayer
f** relief.
A demurrer to the complaint as not stating a cause of action
was sustained by Macdonald, J., and the plaintiff appealed.
MITCHELL, J. There are two classes of cases, both com-
monly called creditors' suits, which, although closely allied, are
clearly distinguishable. The first, a creditor's suit strictly so-
called, is where the creditor seeks to satisfy his judgment out
of the equitable assets of the debtor, which could not be reached
;
246 PREREQUISITES TO ADJUDICATION
on execution. The general rule is that such an action cannot
be brought until the creditor has exhausted his remedy at law
by the issue of an execution and its return unsatisfied. This
was required because equity would not aid the creditor to col-
lect his debt until the legal assets were exhausted, for, until
this was done, he might have an adequate remedy at law. The
execution had to be issued to the county where the debtor re-
sided, if a resident of the state. Its issue to another county
would not suffice. Reed v. Wheaton, 7 Paige, 663. The second
class of cases is wh^e_^ropierty legally_liable_tQ_execution has
been fraudulently conveyed or incumbered by the debtor, and the
creditor brings the action to set aside the conveyance or in-
cumbrance as an obstruction to the enforcement of his lien ; for,
though the property might be sold on execution notwithstand-
ing the fraudulent conveyance, the creditor will not be required
to sell a doubtful or obstructed title. In the latter class of
cases, the prevailing doctrine is that it is not necessary to allege
that an execution has been returned unsatisfied, or that the
debtor has no other property out of which the judgment can be
satisfied; for that is not the ground upon which the court of
equity assumes to grant relief in such cases, but upon the theory
that the fraudulent conveyance is an obstruction which prevents
the creditor 's lien from being efficiently enforced upon the prop-
erty. As to him the conveyance is void, and he has a right to
have himself placed in the same position as if it had never been
/ made. The fact that other property h^s been retained by the
/ debtor may be evidence that the conveyance is not fraudulent ;
1. but if the grantee's title be tainted with fraud, he has no right
Mo say that all other means to satisfy the debt shall be exhausted
before he shall be disturbed. Botsford v. Beers, 11 Conn. 369 ;
Weightman v. Hatch, 17 111. 281 ; Vasser v. Henderson, 40
Miss. 519.
I There is much conflict of authority as to how far the creditor
I must first proceed at law. It has been held inf some cases that
if an execution has not been returned unsatisfied, an execution
must be issued and the action brought in aid of an execution
then outstanding. Such seems to be the latest view of the courts
of New York, after much vacillation and conflict of decision.
Adsit V. Butler, 87 N. Y. 585. But the prevailing and, as we
think, on principle, the better rule is that the creditor need
only proceed at law far enough to acquire a ii6ijiE^_^fi. JSQp-
erty sought to be reached before filing his bill to set_aside a
S-^^LlJbu.-*^ '^ ^^•
PREFERENCES 247
fraudulent conveyances The extent to which he must proceed ^
to do this will depend on the nature of the property. If it be
personal, there must be a levy, for until this is made he has no
lien. If it be real estate, it is enough to obtain judgment, and /
docket it in the county where the lands are situated. 1 Am/
Lead. Cas. 54, 55; 2 Barb. Ch. Pr. 160; Bump on Fraudulent
Conveyances, 523; Weightman v. Hatch, supra; Newman v.
Willetts, 52 111. 98 ; Vasser v. Henderson, supra; Dodge v. Gris-
wold, 8 N. H. 425 ; Tappan v. Evans, 11 N. H. 311 ; Cornell v.
Radway, 22 Wis. 260; Clarkson v. De Peyster, 3 Paige, 320;
Dunham v. Cox, 10 N. J. Eq. 437-466. The lien on the land,
and the right to sell it in satisfaction of the debt, is the basis
of the right to have the deed set aside.
This was a suit to set aside a fraudulent conveyance of real
estate executed by the judgment debtor, and hence falls within
the second class. It follows from what has been said that it was \
not necessary to issue an execution at all before commencing
the present action. Hence it is wholly immaterial that it does
not appear that it was directed to the county where the debtor
resided. In our view the complaint is good.
Order reversed.
<.
J
2. PREFERENCES 3^
Note. — ' ' There is a large class of cases falling under the in-
fluencej though not under the language until recent times, of
bankruptcy laws, in which conveyances, transfers, and payments
by debtors to any of their creditors, even when made with express
intent to defeat other creditors equally entitled to payment,
have from the beginning been treated as not within the statute
of Elizabeth. If one went no further than the statute itself,
one might well suppose that here the doctrine of liberal construc-
tion had been rejected. Why, it might naturally be asked, were
such cases relegated to bankruptcy laws, nay to actual proceed-
ings in bankruptcy or winding-up, — for even the bankruptcy
laws do not meet these cases except in bankruptcy proceedings?
There is nothing^ either in the letter or in the spirit in the
statute ^JgUzabeth to require tha rourts to hold that it has no
application to sucE"casesj and yet it has always been held that
30 — Under the bankruptcy law sirable to cover here the subject in
preferences are important in sev- all its phases, rather than to split
eral connections. It has seemed de- it up.
248 PREREQUISITES TO ADJUDICATION
I the statute of Elizabeth was not a statute touching bankruptcy
or insolvency.
"'The explanation of the apparent anomaly sometimes given,
that a debtor ought to have the right to pay creditor A in pref-
erence to creditor B, if he choose to so, is not satisfactory; for
that is virtually saying that the debtor may defraud B, The
true explanation appears to be that there existed already, at
the time the statute of Elizabeth was passed, an Act of Bank-
ruptcy, and that another Act of the kind was passed in the very
same year with our statute. Questions of preference of course
fell within either of these other statutes. Still there is reason
to regret that the statute of Elizabeth was not so construed as
to cover all cases of bankruptcy not deemed to be covered by
the bankruptcy laws, such as preferences by an insolvent arising
in other proceedings than those of bankruptcy or winding-up."
Bigelow on Fr. Conv. (Knowlton's ed.) 73, et seq. See also
Shelley v. Boothe, ante, p. 200.
^jy^ • A, (O') Being Insolvent
A^^rT^^t^ "^^ 144 Fed. 142
s ^ ^ - '*^ [See this case given cmte, p. 111.]
■> . •^•■'"/A ^ f 6; y^itUn Four Months
>^ \\0ESER V. SAVINGS DEPOSIT BANK & TRUST CO.
>^^^**''^ 148 Fed. 975, 78 C. C. A. 597
^ '^-t;>^ I^Circuit Court of Appeals, Sixth Circuit. November 22, 1906)
^ ^// ' LURTON, Circuit Judge. The question in this case is as to
1L t* whether Mrs. Chadwick's chattel mortgage securing a past in-
\^ / debtedness to the Savings Deposit & Trust Company of $37,000
is invalid as a preference under § 60a of the Bankruptcy Law of
July 1, 1898 (30 Stat. 562, c. 541 [U. S. Comp. St. 1901, p.
3445]), as amended by Act. Feb. 5, 1903, c. 487, § 13, 32 Stat.
799 [U. S. Comp. St. Supp. 1905, p. 689].
^'" This mortgage was made April 27, 1904. By an agreement
between the parties it was withheld from record until November
22, 1904, on which day the mortgagee took actual possession of
the mortgaged property and put the mortgage to record. On
December 1, 1904, proceedings in bankruptcy were begun against
^
i(A J(, ■■ ^5 ^'^^^s^sfAXMJiX.. iVJI ^ ^^ <
PREFERENCES 249
Mrs. Chadwiek, and in due course she was adjudged a bankrupt.
By agreement the mortgaged property was placed in the hands
of the bankrupt receiver for purpose of sale, the rights of the
mortgagee in the fund to be reserved and adjudicated by the
court. Thereupon the bankrupt trustee filed a petition attack-
ing the mortgage as a preference voidable under the bankrupt
law. The bank consented to the jurisdiction and entered its
appearance, and filed a cross-petition asserting its right to en-
force the lien of its said mortgage, and that its claim, when
determined, be awarded priority by virtue of the lien of its
said mortgage against the fund in the possession of the court,
the proceeds of the sale by the trustee of the chattels covered
by the mortgage. The Disrict Court denied this relief, and the
cross-petitioner has appealed. The property mortgiC^ea included
Mrs, Chadwiek 's entire chattel estate, and consisted of house-
hold furniture, china, bric-a-brac, pictures, jewels, an automo-
bile, and all chattels in her residence on Euclid avenue,
Cleveland, and in her barns.
The transcript recites that it was conceded by the mortgagee
bank on the hearing below:
"That at the time the chattel mortgage was executed by
Cassie L, Chadwiek, to-wit: April 27, 1904, and delivered to
J. C. Hill, its president, that said Cassie L. Chadwiek was
insolvent, and that said J. C. Hill as president of said bank had
reasonable cause to believe at that time that she was insolvent
and that such condition existed on the 22d day of November,
1904. It also appeared from the evidence that the effect of
enforcing such chattel mortgage, if held valid, will be to enable
said bank to obtain a greater percentage of its debt than any
other of the bankrupt creditors of the same class."
The concession brings this transfer squarely within the defi-
nition of a voidable preference, provided it was such a transfer
as under the law of Ohio was ' ' required " to be recorded within
the meaning of § 60a of the bankrupt law of 1898 as amended
by the act of February 5, 1903. District Judge Tayler, who
heard this case in the court below, was of opinion that under
the laws of Ohio, the state wherein the mortgaged property was
situated, a chattel mortgage is not "required" to be recorded
within the meaning of the amendment referred to, and that the
preference related to the date of the actual execution of the
transfer, and was, therefore, valid as a preference made more
than four months before the filing of the petition. To support
250 PREREQUISITES TO ADJUDICATION
this conclusion he cites § 4150, Ohio Rev. St. 1906, Francisco v.
Ryan, 54 Ohio St. 307, and In re Shirley, 112 Fed. 301, 50 C. C.
A. 252, as to the validity of an unrecorded chattel mortgage
"not accompanied by an immediate delivery and followed by an
actual and continual change of possession," as against all per-
sons except "creditors of the mortgagor, subsequent purchasers
and mortgagees in good faith." To support the proposition that
an unrecorded lien, good as between the parties under the law
of the state, is good against a bankrupt trustee, if the lien ante-
dates the filing of the petition more than four months, the cases
of Humphrey v. Tatman, 198 U. S. 91, 25 Sup. Ct. 567, 49 L.
ed. 956, and Rogers v. Page et al., 140 Fed. 596, 72 C. C. A. 164,
decided by this court, are cited. As to the construction of
§ 60a before the amendment of 1903, Meyer Brothers Drug Co.
V. Pipkin Drug Co., 136 Fed. 396, 69 C. C. A. 240, an opinion
arising under the recording statute of Texas, and decided by
the Circuit Court of Appeals of the Fifth Circuit, is cited as
holding that the law has not been changed by the amendment
of February 5, 1903. It must be conceded that, under the settled
law of Ohio, this mortgage was valid without recording, as be-
tween the parties and became good when recorded against all
creditors who had fastened no lien thereon before, questions of
actual fraud in withholding it from record out of the way. It
must also be conceded that prior to the amendment of the bank-
rupt law by the amending act of February 5, 1903, the pref-
erence, if free from actual fraud, would relate to the date of
the making and delivery of the instrument creating it, and, if
that date was more than four months before the filing of the
petition for adjudication in bankruptcy, the lien would be good
against the trustee. Humphrey v. Tatman and Rogers v. Page
et al., cited above. Both of the cases last cited arose under
preferences given before the amendment of February 5, 1903.
What has been the effect of that amendment ? This fact was re-
ferred to by Mr. Ray of the House Judiciary Committee, who
explained the amendment in question, when proposed in Con-
gress, as intended to prevent preferences under unrecorded
instruments given more than four months before the filing of
the petition. Touching this he said :
"By adding to 'A' a clause which shall be equivalent to
that found in § 3B (1) Act July 1, 1898, c. 541, 30 Stat. 546
[U. S. Comp. St. 1901, p. 3422]. It seems that as § 60A now
stands a preferential mortgage may be given and the creditor
PREFERENCES 251
preferred, by withholding it from record four months be able'
to dismiss the trustee suit to recover the same though the paper \
was actually recorded within the four months period. See In re
Wright (D. C. Ga.) 96 Fed. 187; In re Mersman (N. Y.) 7 Am.
Bankr. Rep. 46." Volume 35, part. 7, Cong. Record, 6,943.
Before this amendment § 60a read as follows: ,--
"A person shall be deemed to have given a preference if,
being insolvent, he has procured or suffered a judgment to be
entered against himself in favor of any person, or made a trans-
fer of any of his property, and the effect of the enforcement of
such judgment or transfer will be to enable any one of his cred-
itors to obtain a greater percentage of his debt than any other
of such creditors of the same class, ' '
This section, in its original form, was construed in the cases
of Humphrey v. Tatman and Rogers v. Page et al., cited above,
and in several other reported cases as avoiding no preference
•which originated under an unrecorded transfer made more than
four months before the beginning of bankruptcy proceedings
against the maker. Subsequently Mr. Ray became district judge
for the Northern District of New York, and in the case styled
In re Hunt (D, C) 139 Fed. 283, he quotes from Collier on
Bankruptcy (5th Ed.) p, 453, a statement that the amendment
as offered added after the word * ' required ' ' the words ' ' or per-
mitted, ' ' and ' ' that the Senate for some reason struck out these
words, ' ' Judge Ray, from this history, held that because under
the laws of New York an unrecorded conveyance was good as
against everybody except subsequent purchasers without notice,
that it was not ' ' required " to be recorded in order to be effectual
against a bankrupt trustee. Independently of this legislative
history. Judge Archbald, in English v, Ross (D. C.) 140 Fed.
630, and the Circuit Court of Appeals for the Eighth Circuit,
in First National Bank v. Connett (C. C. A.) 142 Fed. 33,
reached an opposite conclusion and held that a recording stat-
ute, which required a conveyance or transfer to be recorded to
be effectual against a certain class or classes of persons, was a
law which * ' required ' ' the recording of the transfer in question,
within the meaning of § 60a as amended. With this conclusion
we agree.
Among the reasons which justify this interpretation are these :
(1) A preference which is an act of bankruptcy by § 3
should in an harmonious law be voidable by the trustee. By
that section a transfer made by one "while insolvent" of any
252 PREREQUISITES TO ADJUDICATION
portion of his property to oue or more of liis creditors "with
intent to prefer such creditors over his other creditors" is made
an act of bankruptcy, and a petition may be filed against such
person "within four months after the commission of such act."
With respect to the date of the commission of such act of bank-
ruptcy, subdivision (1) of the same section provides that the
date from which the four months begins to run shall be "the
date of the recording or registering of the transfer or assignment
when the act consists in having made a transfer of any of his
property * * * for the purpose of giving a preference as
hereinbefore provided, * * * if by law such recording or
registering is required or permitted, or, if it is not, from the
date when the beneficiary takes notorious, exclusive or continu-
ous possession of the property unless the petitioning creditors
have received actual notice of such transfer or assignment. ' ' By
§ 60a, a definition of a " preference ' ' is given which under § 3
would constitute an act of bankruptcy and by § 60b, a ' ' prefer-
ence" so defined is made voidable by the trustee. But, as we
have seen heretofore, §§ 60a and 60b did not make a preference
voidable by the trustee unless the preference, whether under a
recorded or unrecorded instrument, was given within four
months prior to the filing of a petition in bankruptcy. Thus a
r 'preference ' ' under § 3, as defined by § 60a, might constitute
an act of bankruptcy and justify an adjudication if given by an
j unrecorded instrument more than four months prior to bank-
j ruptcy and the preference itself be enforced as a perfectly valid
\act. The plain purpose of the amendment of § 60a was to bring
^t into harmony with § 3, by making the same period of time the
test as to whether a preference may be avoided by the trustee,
under the former, or may constitute an act of bankruptcy under
r%he latter. The construction given to § 3 should be carried for-
l ward and given to § 60a as amended ; thus bringing them into
\consistent relations. "The two," said Judge Arch bald, in Eng-
lish V. Ross, cited above, ' ' are intimately related, the one in this
particular being the basis of and dominating the other, and it is
the failure to realize this and to draw them together as they
should be that is responsible for any misapprehension. What
is thus 'required' in the way of recording in the one is also
'required' as a conveyance in the other and for the same
purpose. ' '
(2) The evil to be corrected was that of secret preferences,
given by withholding from record instruments which by the
PREFERENCES 253
whole policy of recording statutes should be recorded. This evil
was pointed out by the author of the amendatory act of 1903
and the object of the amendment of 60a was stated to be the
remedying of this evil. The law, as it stood, encouraged such
secret liens and preferences, for, if they could be concealed for
four months, though acts of bankruptcy, they were not voidable
by the trustee. If we say that unless the law of the state where
the transfer is made makes void all such transfers as to all the
world, that it is not a law which "requires" recording, the evil
will continue and judges will continue to bewail the iniquity of
a law which makes such a secret transfer an act of bankruptcy
and yet holds the preference valid against the bankrupt's estate
because made more than four months before starting bankrupt
proceedings against the maker. See the lament of Judge Ray
In re Hunt, 139 Fed. 286, 287.
(3) Some effect should be given to the amendment of § 60a
if the language of the provision will permit. If ' ' required ' ' be
construed as applying only to a law which makes every such
transfer absolutely void as to all persons, the amendment will
be of no effect, for no recording statute, of which we have any
knowledge, makes void transfers or conveyances as between the
parties and all of them give effect to such instruments as against
some classes of persons having actual notice. The amendment
would be idle, and the evil sought to be remedied would flourish
as before and the legislative purpose be frustrated.
(4) In view of all of the foregoing considerations, we reach
the conclusion that the word ' ' required, ' ' as used in the amend-
ment, refers to the character of the instrument giving the pref-
erence or making the transfer, without reference to the fact that
as to certain persons or classes of persons it may be good or bad
according to circumstances. If to be valid against certain classes
of persons, the law of the state ' ' requires ' ' the constructive notice
of registration it is a transfer which under the amendment is
"required" to be recorded. This takes account of the purpose
and policy of recording acts, remedies the evil which flourished
under the law before the amendment, gives effect to the plain
purpose of Congress, and gives some effect and force to a pro-
vision which would otherwise be meaningless, and brings § 3
and 60a and 60b into harmony of purpose and meaning. '
(5) We do not ignore the argument that in § 3 the word "re-
quired" is followed by the words "or permitted," and that the
latter words are omitted from the amendment, and that the
254 PREREQUISITES TO ADJUDICATION
words "or permitted" were in the act as introduced by the
author of the bill and retained in the amendment as it passed
the House, but was dropped in the Senate.
It is a fact of which we may take notice that it is common to
recording statutes to set out a list of contracts, conveyances, and
transfers which may be registered, or as "entitled" or "permit-
ted" registration. But, if an instrument is not "entitled" or
"permitted" by law to be recorded, its record is of no effect as
constructive notice. The effect of recording statutes is limited
to such instruments as the statute permits record of. Burck v.
Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 578 ; Lynch v.
Murphy, 161 U. S. 247, 16 Sup. Ct. 523, 40 L. ed. 688 ; Blake v.
Graham, 6 Ohio St. 580, 67 Am. Dec. 360 ; 24 Encyclopedia of
Law, p. 142, and cases cited. The Ohio statute concerning the
recording of chattel mortgages does not require that such mort-
gages shall be recorded in order to be valid as against the parties
or purchasers with notice. Only creditors and purchasers with-
out notice can ignore an unrecorded chattel mortgage, and they
cannot do so if there immediately followed a delivery and no-
torious change of possession. Yet the mortgagor or mortgagee
is entitled or "permitted" to record the instrument, though not
essential to its validity as against certain classes of persons.
'■""niVe conclude from the general purpose and policy of record-
ing statutes that the words "or permitted" are of no vital signi-
fication in § 3. If the instrument giving the preference is one
which is "permitted" to be recorded in order to give it validity
as against certain classes of persons, though perfectly valid with-
out record as to other classes, it is an instrument "required" to
be recorded within the meaning of the word as there used. The
words "required" and "permitted" in the connection used are
of synonymous legal meaning. The dropping of the words "or
permitted" by the Senate is, therefore, of no vital signification
if we are right in regarding § 3 and § 60a as closely connected
provisions. It is only in extremely doubtful matters of interpre-
tation that the legislative history of an act of Congress becomes
important. If the word "required," as used in §§ 3 and 60a, is
used as referring to the character of the instrument giving the
preference, and not as to the persons as between whom it may be
valid without recording or the persons as to whom it is void
for failure to record, the words ' ' or permitted " in § 3 were
surplusage, and the Senate might well omit them from the
amendment, the plain purpose being to tie the two provisions
PREFERENCES 265
together. Why they were omitted from the bill as it finally
passed we can only conjecture. If they had been retained, no
one would question that the amendment made the preference,
constituting an act of bankruptcy by § 3, voidable by the trustee
under §§ 60a and 60b. To say that this plain purpose has failed
because ' ' or permitted ' ' was inserted by one house and stricken
out by the other, would be to make nothing of the amendment.
We should so construe the act as to give it vitality if the words
of the act will permit.
Under § 4150, Rev. St. Ohio 1906, a mortgage of chattels, not
followed by immediate delivery and no actual and notorious
change of possession, is "required" to be recorded. Otherwise
it is invalid as to some persons and valid as to others. That such
a mortgage is "required" by the law of Ohio to be recorded
within the meaning of § 60a as amended, we have no doubt.
# * *
The decree of the court below must be reversed, and the case
remanded, with direction to proceed in accordance with this
opinion. ^ y
InreBECKHAUS 7^ ^i ^A^^"^
RASMUSSEN v. McKEY ^u^ , \ -^ ^^
A^r^ Jr^^ ^r^,
177 Fed. 141, 100 C. C. A. 561 A y-^ ^y^^^^ ' oA
(Circuit Court of Appeals, Seventh Circuit. January 4, 1910) ^ ,» ^^
In October, 1907, Beckhaus was adjudged a bankrupt, and' ^^*^
respondent came into possession of property consisting of a stock i ^^^
of merchandise, fixtures, book accounts, etc., as the property of ///'
the bankrupt. Rasmussen, petitioner here, filed a petition in the p \J^^^
District Court, asking that respondent be ordered to surrender k^
the property to the petitioner. The petition was based on a j W"^^
written agreement entered into on March 6, 1907, by Beckhaus, -fv^^
of the first part, Rasmussen, of the second part, and certain of \ Jf^
the pre-existing creditors of Beckhaus, of the third part, whereby '^SP^
Beckhaus transferred the property to Rasmussen to hold, use,
and ultimately dispose of for the benefit of the first and thu:d
parties. On issues joined the District Cpurt found that on
March 6, 1907, at and before the time the agreement was made,
Beckhaus was insolvent, and so remained; that the agreement
was never recorded; that Rasmussen never took notorious, ex-
clusive, or continuous possession of the property, but Beckhaus
|.A>^*
256 PREREQUISITES TO ADJUDICATION
o -^ . . . . . .
was permitted to remain, and did remain, in possession until the
petition in bankruptcy was filed and respondent came into pos-
session, first as receiver, and then as trustee ; that Beckhaus
intended to prefer said third parties, and said third parties had
reasonable cause to believe that Beckhaus intended by such
transfer to give them a preference ; and that the effect of the
enforcement of such transfer would be to enable said third par-
ties as creditors of Beckhaus to obtain a greater percentage of
their debts than any other of Beckhaus 's creditors of the same
class. Being of the opinion that the agreement of transfer,
within the meaning of § 60a of the bankruptcy act (Act July 1,
1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]), as
amended in 1903 (Act Feb. 5, 1903, e. 487, § 13, 32 Stat. 799
[U. S. Comp. St. Supp. 1909, p. 1314]), was "required" to be
recorded under the law of Illinois, the District Court adjudged
^^that the petitioner take nothing. * * •
§ 1, c. 95, 2 Starr & C. Ann. St. 111. : "Be it enacted by the
people of the state of Illinois, represented in the General As-
sembly, that no mortgage, trust deed or other conveyance of
personal property having the effect of a mortgage or lien upon
such property, shall be valid as against the rights and interests
of any third person, unless possession thereof shall be delivered
to and remain with the grantee, or the instrument shall provide
for the possession of the property to remain with the grantor,
and the instrument is acknowledged and recorded as hereinbe-
fore directed ; and every such instrument shall, for the purposes
of this act, be deemed a chattel mortgage."
BAKER, Circuit Judge (after stating the facts as above).
1. On the basis that the Illinois statute, as construed by the
courts of the state, does not declare unrecorded chattel mort-
gages void except as against the rights and interests of innocent
purchasers or mortgagees and attachment or execution cred-
itors; that no such "third person" is concerned in these proceed-
ings; and that the respondent has no standing except as the
representative of the bankrupt and his general creditors, against
whom an unrecorded chattel mortgage is valid — the petitioner
contends that the contract here involved (considered as the
equivalent of an unrecorded chattel mortgage) , having been
executed over four months before the petition in bankruptcy
was filed, cannot be assailed by the respondent as a voidable
PREFERENCES 257
preference, because it was not "required by law" to be recorded
within the meaning of amended § 60a.
The contention mainly rests on a comparison of original § 3b
with the history of the amendment to § 60a. § 3b provided that
the four months within which an act of bankruptcy was avail-
able as the basis of a petition against an insolvent should "not
expire until four months after the date of the recording, or
registering of the transfer * * * when the act consists in
having made a transfer * * * for the purpose of giving a
preference * * * if by law such recording or registering is
reqiiired or permitted, or, if it is not, from the date when the
beneficiary takes notorious, exclusive or continuous possession
of the property. ' ' The last sentence of § 60a, * ' Where the pref-
erence," etc., was added by the amendment of 1903. As passed
by the House the sentence did not end with "required." The
continuation was "or permitted, or, if it is not, from the date
when the beneficiary takes notorious, exclusive, or continuous
possession of the property transferred. ' ' These last-quoted words
were stricken out by the Senate. Inasmuch as the present case
does not involve "possession," but turns wholly upon "record-
ing," the inquiry is limited to the effect of the excision of the
words "or permitted" after "required"; and the particular
question concerns the soundness of the petitioner's proposition
tliat such excision compels a construction of the amendment as
adopted, whereby a chattel mortgage, which a trustee in bank-
ruptcy is assailing as a voidable preference, is not required to be
recorded unless an examination of the local law shows that the
chattel mortgage, to be impregnable, must be recorded as notice
to the persons presently represented by the trustee.
If, as we are inclined to believe, the Court of Appeals for the
Sixth Circuit, in In re Loeser (148 Fed. 975), was correct in
concluding that "the words 'required' and 'permitted' in the
connection used are of synonymous legal meaning," no effect
could be attributed to the dropping of the redundant word.
If they are not synonymous, the omission of "permitted"
does not imply inevitably (on the basis that no other inference
can fairly be drawn) that the lawmakers intended that "re-
quired" should be qualified or limited to less than it would have
meant if the clause in § 3b and in the original draft of the amend-
ment to § 60a had ended with "required"; for Congress may
well have conceived that an insolvent debtor and a diligent cred-
itor were not necessarily to be dealt with in the same way. That
H. & A. Bankruptcy — 17
'\CZtJ
258 PREREQUISITES TO ADJUDICATION
is, in the interest of fair and open dealing by those who do busi-
ness on credit, it might have been thought that an insolvent
debtor who does not cause a chattel mortgage given to some of
his creditors, to the exclusion of others, to be recorded, whether
recording be "required" or only "permitted" by the local law,
should be liable to be thrown into bankruptcy ; while the diligent
creditor (diligence being usually favored in the law) should be
permitted, after four months, to retain his security, if on tak-
ing it he did all the law "required." See Little v. Hardware
Co. (133 Fed. 874).
Whether the words be deemed synonymous or not, the drop-
ping of "permitted" only eliminated whatever idea pertained to
that word — it could not affect "required," for "required"
stands full and untouched, without adverb or clause to cut it
down. The primal canon of statutory construction is that the
language actually used be given its full and fair meaning, that
unqualified words be taken without qualification, and that in the
absence of ambiguity extraneous matters be not considered. Un-
der this canon probably nothing more can profitably be said
than, if recording is required, it is required. If required for
any purpose, or without purpose, how can it be said to be not
required? If recording be not required, unless required for all
purposes, it could never be said to be required where the instru-
ment is valid between the immediate parties without recording.
We are further restrained by what seems to us to be the absurd
consequences of any other ruling. If a good-faith second mort-
gage had been taken, then according to the petitioner's theory
the trustee could avoid the preference. But if, as is frequently
the case, each mortgage was large enough to exhaust the mort-
gaged property, why should the trustee consume the free assets
in his hands in carrying on one end of a lawsuit between the
mortgagees? The trustee could gain nothing for the general
creditors whichever way the litigation ended, but would be spend-
ing their pittances to benefit a preferred creditor. The same
would be true even if the recorded second mortgage was less than
the value of the mortgaged property ; for, on the hypothesis that
the trustee has no right to resist the unrecorded first mortgage
on behalf of the general creditors, the surplus above the second
mortgage would have to be applied upon the first mortgage.
Preferential mortgagees and lienholders are "adverse claim-
ants," entitled to have their rights determined in plenary suits.
They seek to withhold or diminish the fund which otherwise
PREFERENCES 259
would be shared among the general creditors, and the general
creditors are in fact interested in resisting that reduction. Now
if the trustee may not assail preferences except in favor of one
preferred creditor as against another, and if the general cred-
itors have no interest in such contests except to pray that their
fund be not therein completely consumed in costs and fees, the
amendment to § 60a not merely failed to accomplish any bene-
fit— it brought about a positive injustice.
"W^hen the amended section is read against the background of
the nature and purpose of the act, our interpretation, we be- ^
lieve, is confirmed. The act is a national act. It practically ""^^"^yC^
supplants the state insolvency laws. We think it clear that Con- ^i^ ^^ ,
gress recognized the vast sweep of interstate commerce and meant ^Cf- C
to free interstate traders from the confusion and harassment *'
attendant upon a multiplicity of variant local laws. Therefore
the act in all its parts ought to be interpreted in a national view,
doing away as far as possible with the variances in the local
laws. To release an insolvent debtor from his debts is an act of
grace. Through the whole law runs the clear purpose of extend-
ing grace only to honest debtors. Honesty, fairness, equity is
the whole spirit of the law. Nothing is more abhorrent to equity
than deceitful appearances covering secret preferences. So the
diligent creditor who obtains security must not help the debtor
to be dishonest, unfair, secretive; he can hold his security only'
on condition that he give his fellow creditors a four-months op-
portunity to determine whether or not they will file a petition!
in bankruptcy against the debtor. The openness and fairness
of the preferred creditor are made the terms upon which he may
retain his preference. In this view the only inquiry is: Does
the local law require instruments of the kind in question to be
recorded? There is no need of further investigation into the
scope or purposes of the local law. There is no concern whether
or not the trustee represents innocent purchasers, mortgagees,
attachment or execution creditors. No issue is to be made with
respect to the validity of the lien claims supposed to be repre-
sented by the trustee. § 60b, which authorizes the trustee to
' ' recover the property or its value, ' ' says nothing about the rep-
resentation of the trustee. It is enough on this point that the
trustee is trustee, and that the preferred creditor has failed to
record the instrument of transfer, if by the local law instru-
ments of that kind are required for any purpose to be recorded.
260 PREREQUISITES TO ADJUDICATION
Only by this interpretation can this national law be administered
with anything like uniformity respecting preferences.
2. Even if the true interpretation of § 60a compelled us to
decide this ease upon the meaning of the Illinois statute, with
due regard to the construction thereof by the Illinois courts, we
could not agree with the petitioner.
Recording a mortgage of chattels left in the possession of the
mortgagor is required "as against the rights and interests of
any third person." The term "third person" is broad enough
to include everybody outside of the immediate parties to the
j instrument and their privies. A simple contract creditor who
1 has not obtained a judgment is just as much a ' ' third person, ' '
1 is just as much a stranger to the mortgage, as is the simple con-
1 tract creditor who has obtained a judgment. Both have the right
"to enforce payment, if that can be done. The interests of both
are prejudiced if the debtor's property is covered by a fraudu-
lent transfer. If at the time of the fraudulent transfer one
creditor has obtained a judgment and the other has not, the only
difference is that one has proceeded farther than the other in
the enforcement of his rights and the protection of his interests.
And when it is said that a fraudulent transfer is void only as
to judgment creditors the expression means no more than that
a creditor cannot seize his debtor's property until he has ob-
tained some process which authorizes the seizure. As stated in
Skilton V. Codington, 185 N. Y. 80, 77 N. E. 790, 113 Am. St.
Rep. 885 :
"The rule that a creditor must first recover a judgment is
simply one of procedure and does not affect the right. There-
fore, where the recovery of a judgment becomes impracticable,
it is not an indispensable requisite to enforcing the rights of
the creditor."
^•" Our examination of the Illinois cases has led us to conclude
KW* -» that the Illinois courts have not decided, independently of pro-
v*^' cedure and having regard solely to rights, that simple contract
r^X y^- creditors, irrespective of the progress they may have made in
r j^ suing their debtor, are not "third persons" within the meaning
and intent of the recording statute. Indeed, we think that the
case of Long v. Cockern^i goes quite a way towards holding
that they are. But at all events we consider that the question
31—128 lU. 29, 21 N. E. 201.
^^'.
Y'
PREFERENCES 261
is open, and that we are therefore at liberty to adopt the con-
struction we believe to be sound and righteous.
The petition to review and revise is dismissed.
(c) Procuring, Suffering or Permitting a Judgment , t^j»,H.*, ^
f
L
WILSON BROTHERS v. NELSON i , <
183 U. S. 191, 46 L. ed. 147, 22 Sup. Ct. 74
(United States Supreme Court. December 9, 1901)
The Circuit Court of Appeals for the seventh circuit certified
to this court the following statement of facts and questions of,
law. [The facts appear sufficiently in the opinion.] * * *
*'The questions of law upon which this court [the Circuit
Court of Appeals] desires the advice and instruction of the
Supreme Court are:
"1. Whether the said Cassius B. Nelson, by failure to file his
voluntary petition in bankruptcy before the sale under such
levy, and to procure thereon an adjudication of bankruptcy, or
by his failure to pay and discharge the judgment before the sale
under such levy, committed an act of bankruptcy, within the
meaning of § 3a, subd. (3), of the bankrupt act.
"2. Whether the judgment so entered and the levy of the
execution thereon was a preference 'suffered' or 'permitted' by
the said Nelson within the meaning of clause (3) of § 3a of the
bankrupt law.
"3. Whether the failure of Nelson to vacate and discharge
the preference so obtained, if it was one, at least five days before
the execution sale, was an act of bankruptcy."
Mr. Justice GRAY, after stating the facts, delivered the opin-
ion of the court:
On February 5, 1885, Nelson, in consideration of so much
money then lent to him by Sarah Johnstone, executed and de-
livered to her his promissory note for the sum of $8,960, payable
in five years, with interest until paid. Attached to that note
was an irrevocable power of attorney, executed by Nelson, in the
usual form, authorizing any attorney of a court of record in his
name to confess judgment thereon after its maturity. The in-
terest on the note was paid until November 1, 1898. At that
date Nelson, as he well knew, was, and long had been, and ever
since continued to be, insolvent. On November 21, 1898, Sarah
262 PREREQUISITES TO ADJUDICATION
Johnstone caused judgment to be duly entered in a court of
Wisconsin upon the note and the warrant of attorney for the
face of the note and costs. Upon that judgment, execution was
issued to the sheriff, who on the same day levied on Nelson's
goods, and on December 15, 1898, sold the goods by auction, and
applied the proceeds thereof in part payment of the judgment.
This proceeding left Nelson without means to meet any other of
•nhis obligations. The judgment was entered and the levy made
without the procurement of Nelson and without his knowledge
or consent. The judgment and levy were unassailable in law,
and could not have been vacated or discharged by any legal pro-
ceedings, except by his voluntary petition in bankruptcy. On
December 10, 1898, a petition in bankruptcy was filed against
Nelson; and the questions certified present, in various forms,
the question whether Nelson committed an act of bankruptcy
within the meaning of § 3, cl. 3, of the bankrupt act of 1898.
In considering these questions, strict regard must be had to
the provisions of that act, which, as this court has already had
occasion to observe, differ in important respects from those of
the earlier bankrupt acts. Bardes v. First Nat. Bank, 178 U. S.
524, 44 L. ed. 1175, 20 Sup. Ct. Rep. 1000 ; Bryan v. Bernheimer,
181 U. S. 188, 45 L. ed. 814, 21 Sup. Ct. Rep. 557; Wall v. Cox,
181 U. S. 244, 45 L. ed. 845, 21 Sup. Ct. Rep. 642 ; Pirie v. Chi-
cago Title & T. Co., 182 U. S. 438, 45 L. ed. 1171, 21 Sup. Ct.
Rep. 906.
In § 3 of the bankrupt act of July 1, 1898, c. 541, acts of
bankruptcy are defined as follows: "Acts of bankruptcy by a
person shall consist of his having (1) conveyed, transferred,
concealed, or removed, or permitted to be concealed or removed,
any part of his property with intent to hinder, delay, or defraud
his creditors, or any of them; or (2) transferred, while insolvent,
any portion of his property to one or more of his creditors, with
intent to prefer such creditors over his other creditors; or (3)
suffered or permitted, while insolvent, any creditor to obtain a
preference through legal proceedings and not having, at least
five days before a sale or final disposition of any property af-
fected by such preference, vacated or discharged such preference ;
or (4) made a general assignment for the benefit of his creditors ;
or (5) admitted in writing his inability to pay his debts and his
willingness to be adjudged a bankrupt on that ground." [30
Stat, at L. 544.]
In the first and second of these an intent on the part of the
PREFERENCES 263
bankrupt, either to hinder, delay, or defraud his creditors, or to
prefer over other creditors, is necessary to constitute the act of
bankruptcy. But in the third, fourth, and fifth no such intent
is required.
The third, which is that in issue in the case at bar, is in these
words : " (3) suffered or permitted, while insolvent, any creditor
to obtain a preference through legal proceedings, and not having,
at least five days before a sale or final disposition of any prop-
erty affected by such preference, vacated or discharged such
preference. ' '
By the corresponding provision of the bankrupt act of 1867,
any person who, being bankrupt or insolvent, or in contempla-
tion of bankruptcy or insolvency, ' ' procures or suffers his prop-
erty to be taken on legal process, with intent to give a preference
to one or more of his creditors," "or with the intent, by such
disposition of his property, to defeat or delay the operation of
this act," was deemed to have committed an act of bankruptcy.
Act of March 2, 1867, c. 176, § 39, 14 Stat, at L. 536 ; Rev. Stat.
§ 5021.
The ^ctj)f 1898 differs from that of 1867 in wholly omitting
the clauses, ' ' with intent to give a preference to one or more of
his creditors" or "to defeat or delay the operation of this act;"
and in substituting for the words ' * procures or suffers his prop-
erty to be taken on legal process," the words "suffered or per-
mitted, while insolvent, any creditor to obtain a preference
through legal proceedings,", and not having, five days before a
sale of the property affected, "vacated or discharged such pref-
erence. ' '
There is a similar difference in the two statutes in regard to
the preferences declared to be avoided.
The act of 1867 enacted that if any person, being insolvent, or
in contemplation of insolvency, within four months before the
filing of the petition by or against him, "with a view to give a
preference to any creditor or person having a claim against him,
or who is under any liability for him, procures or suffers any
part of his property to be attached, sequestered, or seized on
execution," or makes any payment, pledge, or conveyance of
any part of his property, the person receiving such payment,
pledge, or conveyance, or to be benefited thereby, "or by such
attachment," having reasonable cause to believe that such per-
son is insolvent and that the same is made in fraud of this act,
the same should be void and the assignee might recover the prop-
264 PREREQUISITES TO ADJUDICATION
erty. Act of March 2, 1867, c. 176, § 35, 14 Stat, at L. 534 ;
Rev. Stat. §5128.
The corresponding provisions of the act of 1898 omit the req-
uisite of the act of 1867, "with a view to give a preference."
§ 60 of the act of 1898, relating to ' ' preferred creditors, ' '
begins by providing that ''a person shall be deemed to have
given a preference, if, being insolvent, he has procured or suf-
fered a judgment to be entered against himself in favor of any
person, or made a transfer of any of his property, and the effect
of the enforcement of such judgment or transfer will be to
enable any one of his creditors to obtain a greater percentage
of his debt than any other of such creditors of the same class."
§ 67, relating to * ' liens, ' ' provides, in subd. c, as fol-
lows: "A lien created by, or obtained in, or pursuant to, any
suit or proceeding at law or in equity, including an attachment
upon mesne process, or a judgment by confession, which was
begun against a person within four months before the filing of
the petition in bankruptcy by or against such person, shall be
dissolved by the adjudication of such person to be a bankrupt,
if (1) it appears that said lien was obtained and permitted while
the defendant was insolvent, or [and] that its existence and en-
forcement will work a preference, or (2) the party or parties to
be benefited thereby had reasonable cause to believe the defend-
ant was insolvent and in contemplation of bankruptcy, or (3)
that such lien was sought and permitted in fraud of the pro-
visions of this act."
The same section provides, in subd. /, "that all levies, judg-
ments, attachments, or other liens obtained through legal pro-
ceedings against a person who is insolvent, at any time within
four months prior to the filing of a petition in bankruptcy against
him, shall be deemed null and void, in ease he is adjudged a
bankrupt. ' ' This provision evidently includes voluntary, as well
as involuntary, bankrupts; for the 1st clause of the 1st section
of the act, defining the meaning of words and phrases used in
the act, declares that " 'a person against -^hom a petition has
been filed' shall include a person who has filed a voluntary
petition. ' '
Taking together all the provisions of the act of 1898 on this
subject, and contrasting them with the provisions of the act of
1867, there can be no doubt of their meaning.
/'The 3d clause of § 3, omitting the word "procure," and the
/phrase "intent to give a preference," of the former statute,
PREFERENCES 265
c
makes it an act of bankruptcy if the debtor has ''suffered or
permitted, Avhile insolvent, any creditor to obtain a preference
through legal proceedings, ' ' and has not ' ' vacated or discharged
such preference" five days before a sale of the property. By
§ 60 he is " deemed to have given a preference ' ' if, being insol-
vent, he has "suffered a judgment to be entered against himself
in favor of any person, * * * and the effect of the enforce-
ment of such judgment * * * will be to enable any one of
his creditors to obtain a greater percentage of his debt" than
other creditors. By § 67, subd. c, a lien obtained in any suit,
"including an attachment upon mesne process, or a judgment
by confession," begun within four months before the filing of
the petition in bankruptcy, is dissolved by the adjudication in
bankruptcy, not only if "such lien was sought and permitted
in fraud of the provisions of this act, ' ' but also if "its existence
and enforcement will work a preference." And by subd. / of
the same section "all levies, judgments, attachments, or other
liens obtained through legal proceedings against a person who
is insolvent," within the four months, shall be deemed null and
void in case he is adjudged a bankrupt.
The act of 1898 makes the result obtained by the creditor, and
not the specific intent of the debtor, the essential fact.
In the case at bar, the warrant of attorney to confess judg-
ment was indeed given by the debtor nearly thirteen years be-
fore. But being irrevocable and continuing in force, the debtor
thereby, without any further act of his, "suffered or permitted"
a judgment to be entered against him, within four months be-
fore the filing of the petition in bankruptcy, the effect of the en-
forcement of which judgment would be to enable the creditor to
whom it was given to obtain a greater percentage of his debt
than other creditors; and the lien obtained by which, in a pro-
ceeding begun within the four months, would be dissolved by
the adjudication in bankruptcy, because "its existence and en-
forcement will work a preference." And the debtor did not,
within five days before the sale of the property on execution,
vacate or discharge such preference, or file a petition in bank-
ruptcy. By failing to do so, he confessed that he was hopelessly
insolvent, and consented to the preference that he failed to
vacate.
The cases on which the appellee relies, of Wilson v. City Bank,
17 Wall. 473, 21 L. ed. 723 ; Clark v. Iselin, 21 Wall. 360, 22 L.
ed. 568 ; and Tenth Nat. Bank v. Warren, 96 U. S. 539, 24 L.
266 PREREQUISITES TO ADJUDICATION
ed. 640, have no application, because they were decided under
the act of 1867, which expressly required the debtor to have
acted with intent to give a preference.
The case of Buckingham v. McLean, 13 How. 150, 14 L. ed.
90, arose under the still earlier Bankrupt Act of August 19, 1841,
c. 9, § 2 (5 Stat, at L. 442). And the point there decided was
that a power of attorney to confess a judgment was an act of
the bankrupt creating a ' ' security, ' ' which that bankrupt act in
express terms declared void only if made in contemplation of
bankruptcy and for the purpose of giving a preference or
priority over general creditors.
The careful change in the language of the provisions of the
Bankrupt Act of 1898 from those of the former Bankrupt Acts
upon the subject must have been intended by congress to pre-
vent a debtor from giving a creditor an irrevocable warrant of
attorney which would enable him, at any time during the in-
solvency of the debtor, and within four months before a peti-
tion in bankruptcy, to obtain a judgment and levy the execution
on all the property of the bankrupt, to the exclusion of his other
creditors.
The answer to the second and third questions certified must
be that the Judgment so entered and the levy of the execution
thereon were a preference "suffered or permitted" by Nelson,
within the meaning of clause 3 of § 3 of the bankrupt act ; and
that the failure of Nelson to vacate and discharge, at least five
days before the sale on execution, the preference so obtained,
was an act of bankruptcy ; and it becomes unnecessary to answer
the first question.
Second cmd third questions answered m the affirmative.^^
1 ^^ ^' CITIZENS BANKING CO. v. RAVENNA NAT. BANK
%^ . (United States Supreme Court. June 8, 1914)
p- "JV Mr. Justice VAN DEVANTER delivered the opinion of the
■X/^ court :
Upon a petition filed in the District Court for the Northern
District of Ohio by one of her creditors, Cora M. Curtis was ad-
ji 32 — The Chief Justice, Mr. Jus- The dissenting opinion by Mr. Jus-
11 tice Shiras, Mr, Justice Brewee, tice Shiras is omitted.
and Mr. Justice Peckham dissented. In Duncan v. Landis, 106 Fed.
PREFERENCES 267
judged a bankrupt. In addition to matters not requiring notice,
the petition charged that within four months next preceding its
filing the respondent committed an act of bankruptcy, in that
(a), while insolvent, she suffered and permitted the Citizens
Banking Company to recover a judgment against her for
$1,598.78 and costs, in the Common Pleas Court of Erie County,
Ohio, and to have an execution issued under the judgment and
levied on real estate belonging to her, whereby the company ob-
tained a preference over her other creditors, and (b) at the
time of the filing of the petition, which was one_day less than
four months after the levy of the execution, she had not vacated
or discharged the levy and resulting preference.
The company appeared in the bankruptcy proceedings and
challenged the petition on the ground that it disclosed no act of
bankruptcy, but the court, deeming that such an act was charged,
overruled the objection, and, there being no denial of the facts
stated in the petition, g^judged the respondent a bankrupt. The
company appealed to the Circuit Court of Appeals, and that
court, having briefly reviewed the opposing views touching the
point in controversy (121 C. C. A. 250, 202 Fed. 892), certified
the case here, with a request that instruction be given on the
following questions :
"(1) Whether the failure by an insolvent judgment debtor,
and for a period of one day less than four months after the levy
of an execution upon his real estate, to vacate or discharge such
levy, is a 'final disposition of the property' affected by the levy,
under the provisions of § 3a (3) of the bankruptcy act of 1898
[30 Stat, at L. 546, c. 541, U. S. Comp. Stat. 1901, p. 3422].
"(2) Whether an insolvent debtor commits an act of bank-
ruptcy, rendering him subject to involuntary adjudication as a
bankrupt under the bankruptcy act of 1898, merely by inaction ^ 0
for the period of four months after the levy of an execution
upon his real estate."
It will be observed that no reference is made to an accom-
^ished or impending disposal of the property in virtue of the
levy, although the mode of disposal prescribed by the local law
is by advertisement and sale. 2 Bates's Anno. Stat. (Ohio)
§§ 5381, 5393.
839, the Court of Appeals for tbe elusion as the dissenting Justices
Third Circuit, by a vote of two to above,
one, had arrived at the same con-
re
'-^^^^
268 PREREQUISITES TO ADJUDICATION
The answers to the questions propounded turn upon the true
construction of J 3.a (3) of the bankruptcy act, which declares:
"Acts of bankruptcy by a person shall consist of his having
* * * (3) suffered or permitted, while insolvent, any creditor
to obtain a preference through legal proceedings, and not having
at least five days before a sale or final disposition of any prop-
erty affected ^yy such preference vacated or discharged such
preference." 30 Stat, at L. 544, c. 541, U. S. Comp. Stat. 1901,
p. 3418.
Looking at the terms of this provision, it is manifest that the
act of bankruptcy which it defines consists of three elements.
/ The first is the insolvency of the debtor ; the second is suffering
A^ij^^ * or permitting a creditor to obtain a preference through legal
proceedings; that is, to acquire a lien upon property of the
debtor by means of a judgment, attachment, execution, or kindred
proceeding, the enforcement of which will enable the creditor
to collect a greater percentage of his claim than other creditors
of the same class; and the third is the failure of the debtor to
vacate or discharge the lien and resulting preference five days
before a sale or final disposition of any property affected. Only
through the combination of the three elements is the act of
bankruptcy committed. Insolvency alone does not suffice, nor
is it enough that it be coupled with suffering or permitting a
creditor to obtain a preference by legal proceedings. The third
element must also be present, else there is no act of bankruptcy
within the meaning of this provision. All this is freely conceded
by counsel for the petitioning creditor.
The questions propounded assume the existence of the first two
elements, and are intended to elicit instruction respecting the
proper interpretation of the clause describing the third ; namely,
"and not having, at least five days before a sale or final dis-
position of any property affected by such preference, vacated or
discharged such preference." It is to this point that counsel
have addressed their arguments.
Without any doubt this clause shows that the debtor is to have
until five days before an approaching or impending event within
which to vacate or discharge the lien out of which the preference
arises. What, then, is the event which he is required to antici-
pate! The statute answers, "a sale or final disposition of any
property affected by such preference. ' ' As these words are part
of a provision dealing with liens obtained through legal proceed-
ings, and as the enforcement of such a lien usually consists in
PREFERENCES 269
selling some or all of the property aif eeted, and applying the pro-
ceeds to the creditor's demand, it seems quite plain that it is to
such a sale that the clause refers. And as there are instances in
which the property affected does not require to be sold, as when
it is money seized upon execution or attachment, or reached by
garnishment, * * * it seems equally plain that the words
"or final disposition" are intended to include the act whereby
the debtor's title is passed to another when a sale is not re-
quired. No doubt, the terms "sale or final disposition," ex-
plained as they are by the context, are comprehensive of every
act of disposal, whether by sale or otherwise, which operates as
an enforcement of the lien or preference.
But we do not perceive anything in the clause which suggests
that the time when the lien is obtained has any bearing upon
when the property must be freed from it to avoid an act of bank-
ruptcy. On the contrary, the natural and plain import of the
language employed is that it will suffice if the lien is lifted five |>Y v^>>
days before a sale or final disposition of any of the property f f^
affected. This is the only point of time that is mentioned, and *
the implication is that it is intended to be controlling.
To enforce a different conclusion counsel for the petitioning
creditor virtually contends that the clause has the same meaning
as if it read, "and having failed to vacate or discharge the
preference at least five days before a sale or final disposition of
any of the property affected, or, at most, not later than five days
before the expiration of four months after the lien was obtained. ' '
But we think such a meaning cannot be ascribed to it without
rewriting it, and that we cannot do. The contention puts into
it an alternative which is not there, either in terms or by fair
implication, and to which Congress has not given assent. Indeed, ^
it appears that in the early stages of its enactment the bank- I
ruptcy bill contained a provision giving the same effect to a fail- '
ure to discharge the lien within a prescribed period after it
attached as to a failure to discharge it within a designated num-
ber of days before an intended sale; and that during the finaj,-^
consideration of the bill that provision was eliminated and the
one now before us was adopted. This, of course, lends strength
to the implication otherwise arising that the clause names the
sole test of when the lien must be vacated or discharged to avoid
an act of bankruptcy.
The contention to the contrary is sought to be sustained
by a reference to §§ 3b, 67c, and 67f. But we perceive noth-
^^cf,
270 PREREQUISITES TO ADJUDICATION
ing ill those sections to disturb the plain meaning of § 3a (3).
It defines a particular act of bankruptcy, and purports to be
complete in itself, as do other subsections defining other acts
of bankruptcy. § 3b deals with the time for filing petitions in
bankruptcy and limits it to four months after the act of bank-
ruptcy is committed. It says nothing about what constitutes
an act of bankruptcy, but treats that as elsewhere adequately
defined. §§ 67c and 67f deal with the retrospective effect of
adjudications in bankruptcy, the former declaring that certain
liens obtained in suits begun within four months before the
filing of the petition shall be dissolved by the adjudication,
and the latter that certain levies, judgments, attachments, and
other liens obtained through legal proceedings within the same
period shall become nuU and void upon the adjudication. Both
assume that the adjudication will be grounded upon a sufficient
, act of bankruptcy, as elsewhere defined, and give to every ad-
( judication the same effect upon the liens described, whether it
be grounded upon one act of bankruptcy or another. And what
is more in point, there is no conflict between § 3a (3) and the
sections indicated. All can be given full effect according to
their natural import without any semblance of interference be-
tween § 3a (3) and the others.
But it is said that unless § 3a (3) be held to require the ex-
tinguishment of the lien before the expiration of four months
from the time it was obtained the result will be that in some in-
stances the lien will not be dissolved or rendered null through
the operation of §§ 67c and 67f, because occasionally the full
four months will intervene before an act of bankruptcy is com-
mitted, and therefore before a petition can be filed. Conceding
i that this is so, it proves nothing more than what is true of all
liens obtained through legal proceedings more than four months
prior to the filing of the petition. And while it may be true, as
is suggested, that if the debtor is not restricted to less than four
months within which to extinguish the lien there will be in-
stances in which general creditors will be affected disadvan-
tageously, it must be reflected that there also will be instances
in which an honest and struggling debtor will be able to ex-
tinguish the lien the requisite number of days before a sale or
final disposition of any of the property affected, and thereby to
avoid bankruptcy, without injury to any of his creditors. But
with this we are not concerned. The advantages and disadvan-
PREFERENCES 271
tages have been balanced by Congress, and its will has been ex
pressed in terms which are plain and therefore controlling.
Lastly, it is said that the term ''final disposition" is not used
in the sense hereinbefore indicated, but as denoting the status
which a lien acquires through the lapse of four months before
the filing of a petition in bankruptcy. This is practically a
reiteration of the contention already noticed, but probably is
intended to present if from a different angle. It overlooks, as
we think, the influence which rightly must be given to the con-
text, and also the manifest inaptness of the term to express the
thought suggested. When one speaks of a sale or fiTial disposition
of property, he means by final disposition an act having sub-
stantially the effect of a sale, — a transfer of ownership and con-
trol from one to another, — and especially is this true when he
is referring to a sale or final disposition in the enforcement of a
lien. We regard it as entirely clear that the term is so used in
this instance, and that it signifies an affirmative act of dispc^a^l,
not a mere lapse of time which leaves the lien intact and still
requiring enforcement. To illustrate, let us take the instance
of a provisional attachment of real property, which the creditor
is not entitled to enforce unless he sustains the demand which is
the subject of the principal suit; and let us suppose that the
debtor defends against the demand, and that the suit is pend-
ing and undetermined four months after the levy. Of course,
an adjudication in bankruptcy upon a petition filed thereafter
would not disturb the attachment. But could it be said that
the property attached was finally disposed of at the end of the
four months? An affirmative answer seems quite inadmissible.
We conclude that both of the questions propounded by the
Circuit Court of Appeals should be resolved in the negative.
As shown by the reported cases, some diversity of opinion has
arisen in other Federal courts in disposing of similar questions
(Re Rome Planing MiU, 96 Fed. 812, 815 ; Re Vastbinder, 126
Fed. 417, 420; Re Tupper, 163 Fed. 766, 770; Re Windt, 177
Fed. 584, 586; Re Crafts-Riordon Shoe Co., 185 Fed. 931, 934;
Folger V. Putnam, 114 C. C. A. 513, 194 Fed. 793, 797; Re
Truitt, 203 Fed. 550, 554), and so we deem it well to observe
that the conclusion here stated has been reached only after full
consideration of those cases.
Questions answered "No."
s^
272 PREREQUISITES TO ADJUDICATION
(d) Transfer of Bankrupt's Property
i * ^ ^\^' JAQUITH V. ALDEN
^ 189 U. S. 78, 47 L. ed. 717, 23 Sup. Ct. 649
(United States Supreme Court. April 27, 1903)
Statement by Mr. Chief Justice FULLER:
F. N. Woodward et al. filed their petition in bankruptcy, and
were adjudicated bankrupts November 26, 1901. They had
become insolvent August 15, and on that day were not indebted
to G. Edwin ^Iden, who afterwards, in ignorance of the in-
solvency, made sales to Woodward et al., and received payments
from them therefor in the regular course of business, and with-
out any idea or intention on the part of Alden of obtaining a
preference thereby, the sales and payments being as follows :
Sales
Rubber $289.46
" 657.89
" 644.28
*' 535.99
Cartage .50
Asbestine 10.40
Payments
Payment of bill Aug. 17 $289.46
Payment of bill Aug. 28 657.89
Payment of bill Sept. 30 644.28
The merchandise sold Woodward et al. was manufactured by
them, and the result of the transactions was to increase their
estate in value. Alden^ petitioned to be allowed to^proye his
claim of $546.89.
The referee disallowed the claim unless at least the amount of
$633.88 was surrendered to the estate. The district judge re-
versed the judgment of the referee and allowed the claim, and
the decree of the District Court was aflSrmed by the Circuit Court
of Appeals (118 Fed. 270) on the authority of Dickson v.
Wyman, 55 L. R. A. 349, 49 C. C. A. 574, 111 Fed. 726. There-
upon an appeal to this court was allowed and a certificate granted
under § 25, 6, 2.
Mr. Chief Justice FULLER delivered the opinion of the court :
The facts found established that on August 15 the aggregate
Aug.
17, 1901
28, -
Sept.
30, -
Oct.
18, "
Oct.
18, -
31, "
Sept.
4, 1901.
Sept.
28, 1901.
Oct.
29, 1901.
PREFERENCES 273
of the property of the bankrupts was not, at a fair valuation,
suflB.cient in amount to pay their debts, but that Alden was
ignorant of this, and, in good faith and in the regular course of
business, sold material to the bankrupts, and received payment
therefor several times between August 15 and November 26,
when the petition was filed, on which day the amount of $546.89
for material delivered shortly before had not been paid. All the
material so sold to them was manufactured by the bankrupts,
and increased their estate in value.
The question is whether the payments made to Alden (or
either of them) were preferences within § 60 of the bankruptcy
act of 1898 [30 Stat, at L. 562, c. 541, U. S. Comp. Stat. 1901, p.
3445], which must be surrendered, under § 575^, before his claim
could be allowed. * * *
In Pirie v. Chicago Title & T. Co., 182 U. S. 438, 45 L. ed.
1171, 21 Sup. Ct. Rep. 906, the Circuit Court of Appeals for the
Seventh Circuit had affirmed an order of the District Court for
the Northern District of Illinois, rejecting a claim of Carson,
Pirie, & Company against the estate of Frank Brothers, bank-
rupts, and the case was then brought to this court on findings
of fact and conclusions of law of the Circuit Court of Appeals,
made and filed "pursuant to the requirements of subdivision 3,
rule 36 of General Orders in Bankruptcy." The first three of
the findings were as follows:
*"' First. That on February 11, 1899, August Frank, Joseph
Frank, and Louis Frank, trading as Frank Brothers, were duly
adjudged bankrupts.
"Second. That for a long time prior thereto appellants
carried on dealings with the said bankrupt firm, said dealings
consisting of a sale by said appellants to said Frank Brothers of
goods, wares, and merchandise amounting to the total sum of
$4,403.77.
"Third. That said appellants, in the regular and ordinary
course of business, and within four months prior to the adjudi-
cation in bankruptcy herein, did collect and receive from said
bankrupts as partial payment of said account for such goods,
wares, and merchandise so sold and delivered to said Frank
Brothers, the sum of $1,336.79, leaving a balance due, owing and
unpaid, amounting to $3,093.98."
It was further found that, at the time this payment was made,
Frank Brothers were hopelessly insolvent, to their knowledge;
but that Carson, Pirie, & Company had no knowledge of such
H. & A. Bankruptcy — 18
^'
274 PREREQUISITES TO ADJUDICATION
insolvency, nor had reasonable cause to believe that it existed;
nor did they have reasonable cause to believe that the bank-
rupts, by the payment, intended thereby to give a preference;
and that they had refused to surrender to the trustee the amount
of the payment made to them by the bankrupts, as a condition
of the allowance of their claim. Upon the facts the Circuit
Court of Appeals concluded, as matter of law, that the payment
made ' ' at the time and in the manner above shown ' ' constituted
a preference ; and that, by reason of the failure and refusal of
Carson, Pirie, & Company to surrender the preference, they were
not entitled to prove their claim.
The judgment below was affirmed by this court, and it was
held that a payment of money was a transfer of property, and
when made on an antecedent debt by an insolvent was a prefer-
ence within § 60a, although the creditor was ignorant of the in-
solvency, and had no reasonable cause to believe that a prefer-
ence was intended. The estate of the insolvent, as it existed at
the date of the insolvency, was diminished by the payment, and
the creditor who received it was enabled to obtain a greater per-
centage of his debt than any other of the creditors of the same
class.
In the present case all the rubber was sold and delivered after
theTjankrupts' property had actually become insufficient to pay
their debts, and their estate was increased in value thereby to
an amount in excess of the payments made. The account was a
running account, and the effect of the payments was to keep it
alive by the extension of new credits, with the net result of a
gain to the estate of $546.89, and a loss to the seller of that
amount, less such dividends as the estate might pay. In these,
circumstances the payments were no more preferences than if
the purchases had been for cash, and, as parts of one continuous
bona fide transaction, the law does not demand the segregation
of the purchases into independent items so as to create distinct
pre-existing debts, thereby putting the seller in the same class as
creditors already so situated, and impressing payments with the
character of the acquisition of a greater percentage of a total
indebtedness thus made up.
We do not think the slight variation in the dates of sales and
payments affords sufficient ground for the distinction put for-
ward by counsel between the payments of September 4 and 28
and the payment of October 29 (which he concedes should be
upheld) in their relation to the rubber furnished August 17 and
PREFERENCES 275
28 and September 30. All the material was sold and delivered
after August 15, and neither of the items can properly be
singled out as constituting outstanding indebtedness, payment
of which operated as a preference. ,.
The facts as found in Pirie_V;_Chicago Title & T. Co. were so ' i ^ ^ *
entirely different from those existing here that this case is not "^
controlled by that. In view of similar vital differences it has been
held by the Circuit Court of Appeals for the first circuit (Dick-
son V. Wyman, 55 L. R. A. 349, 49 C. C. A. 574, 111 Fed. 726),
second circuit (Re Sagor, 9 Am. Bankr. Rep. 361), third cir-
cuit (Gans V. EUison, 52 C. C. A. 366, 114 Fed. 734), eighth
circuit (Kimball v. Rosenham Co., 52 C. C. A. 33, 114 Fed. 85),
that payments on a running account, where new sales succeed
payments, and the net result is to increase the value of the es-
tate, do not constitute preferential transfers under § 60a.
Judgment affirmed.^^
Mr. Justice WHITE and Mr. Justice McKENNA, not being
able to concur in the reasons by which the court, in the opinion
just announced, distinguishes this ease from that of Pirie v.
Chicago Title & T. Co., and deeming the latter case controlling
in this, dissent.
NEW YORK COUNTY NATIONAL BANK v. MASSEY /) ' ^^
192 U. S. 138, 48 L. ed. 380, 24 Sup. Ct. 199 "^^ )1,
(United States Supreme Court. January 4, 1904)
Mr. Justice DAY delivered the opinion of the court:
This is an appeal from the judgment of the Circuit Court of
Appeals for the second circuit, reversing the order of the District
Court affirming the order of the referee in bankruptcy, allowing
a claim against the estate of Stege & Brother. This claim was|
allowed against the contention of the trustee of the bankrupt, I
that it could not be proved until the bank should surrender a J
certain alleged preference given to it in contravention of the^
bankrupt act. The Circuit Court of Appeals reversed the order
of the District Court, holding that the bank must first surrender
the preference before it could be allowed to prove its claim.
33 — See Yaple v. Dahl-Millikan
Grocery Co., 193 U. S. 526; Wild & -i
Co. V. Trust Co., 153 Fed. 562. f ' ' ^JUa*.
276 PREREQUISITES TO ADJUDICATION
54 C. C. A. 116, 116 Fed. 342. The Circuit Court of Appeals
made the following findings of fact :
"For a number of years past the bankrupts, George H. Stege
and Frederick H. Stege, were engaged, in the city and county
of New York, in the business of dealing in butter, eggs, etc., at
wholesale, under the firm name and style of Stege & Brother.
On January 27, 1900, they filed a voluntary petition of bank-
ruptcy in the District Court, with liabilities of $67,232.49 and
assets of $20,729.66, and upon the same day were duly adju-
dicated bankrupts. Among their liabilities there was an in-
debtedness of $40,000 to the New York County National Bank
for money loaned upon four promissory notes for $10,000 each.
The money was loaned to the bankrupts and the notes were
originally given as follows:
"April 26, 1899, $10,000, 6 months, due October 26, 1899.
"April 26, 1899, $10,000, 7 months, due November 26, 1899.
"June 26, 1899, $10,000, 4 months, due October 26, 1899.
"August 2, 1899, $10,000, 4 months, due December 2, 1899.
"None of these notes were paid when they fell due, but were
all renewed as follows :
"October 26, 1899, $10,000, 3 months, due January 26, 1900.
"November 26, 1899, $10,000, 75 days, due February 9, 1900.
"October 26, 1899, $10,000, 3 months, due January 26, 1900.
"December 2, 1899, $10,000, 69 days, due February 9, 1900.
* ' On January 23, 1900, in the morning, the bankrupts went to
the New York County National Bank and asked the officers to
have the two notes of $10,000 each, which fell due on January
26, extended. The bankrupts at that time informed the bank
officers that they were unable to pay the notes then about to fall
due. In the afternoon of the same day, January 23, 1900, the
bankrupts again called upon the bank officers, and at that time
they delivered to them a statement of their assets and liabilities,
which statement was not delivered until after the deposit of
$3,884.47 had been made on that day. This statement as of
January 22, 1900, showed their assets to be $19,095.67 and their
liabilities $65,864.61.
* ' The bankrupts kept their bank account in the New York
County National Bank since May 6, 1899. On January 22, 1900,
their balance in the bank was $218.50, On the same day they
deposited in that account $536.83; on January 23, 1900, $3,-
884.47 ; on January 25, 1900, $1,803.95, making a total of $6,-
225.25 deposited in the three days mentioned. Of this amount
>s^/
PREFERENCES 277
there was left in the bank account on the day of the adjudica-
tion in bankruptcy, January 27, 1900, the sum of $6,209.25, the
bank having honored a check of Stege Brothers after the date of
all these deposits.
"At the first meeting of creditors, February 9, 1900, the New
York County National Bank filed its claim for $33,790.25.
* * In its proof of claim the bank credited upon one of the notes /?
which became due on January 26, 1900, the deposit of $6,209.25. ,/^<-
The claim was allowed by the referee in the sum of $33,750.25, "^"^ /J.
being $40,000 less the amount on deposit in bank ($6,209.25) *"'".->
and a small rebate of interest on the unmatured notes. Some
of the creditors at this meeting reserved the right to move to
reconsider the claim of the New York County National Bank;
the referee granted this request. Afterwards the trustee, as the
representative of the creditors, moved before the referee to dis-
allow and to expunge from his list of claims the claim of the ^>
New York County National Bank unless it surrendered the 1 ' *y
amount of the deposit, namely, $6,209.25, which had been credited 4<-
by the bank upon one of the notes. The referee denied that
motion, and an appropriate order was made and entered. The
trustee thereupon duly filed his petition to have the question
certified to the district judge. The district judge on the 25th
day of November, 1901, made an order affirming the order of
the referee. From that order an appeal was duly taken by the
trustee to the Circuit Court of Appeals. The deposits were made
in the usual course of business ; at the time they were made Stege
Brothers were insolvent."
As a conclusion of law, the Court of Appeals held that the
deposit would amount to a transfer enabling the bank to obtain
a greater percentage of the debt due to it than other creditors
of the same class, and that allowance of the claim should be
refused unless the preference was surrendered. This case re-
quires an examination of certain provisions of the bankrupt law.
§ 68 of that law provides :
" § 68. Set-offs and counterclaims :
*' (a) In all cases of mutual debts or mutual credits between
the estate of a bankrupt and a creditor, the account shall be
stated and one debt shall be set off against the other and the
balance only shall be allowed or paid. <iAy >j^T ' <
*' (b) A set-off or counterclaim shall not be allowed in favor
of any debtor of the bankrupt which (1) is not provable against
the estate, or (2) was purchased by or transferred to him after
278
PREREQUISITES TO ADJUDICATION
- u>^'
^.
!a^
•Ct-^-^
the filing of the petition or within four months before such filing,
with a view to such use and with knowledge or notice that such
bankrupt was insolvent or had committed an act of bankruptcy. ' '
§ 60 provides (prior to the amendment of February 5, 1903) :
" § 60. Preferred creditors : a. A person shall be deemed to
have given a preference if, being insolvent, he has * * *
made a transfer of any of his property, and the effect of the
• • * transfer will be to enable any one of his creditors to
obtain a greater percentage of his debt than any other of such
creditors of the same class. ' '
§ 57gr provides (prior to amendment of February 5, 1903) :
"Claims of creditors who have received preferences shall not be
allowed unless such creditors shall surrender their preferences. ' '
Considering, for the moment, § 68, apart from the other sec-
tions, subdivisions a contemplates a set-off of mutual debts or
credits between the estate of the bankrupt and the creditor, with
an account to be stated and the balance only to be allowed and
paid. Subdivision h makes certain specific exceptions to this
allowance of set-off, and provides that it shall not be allowed in
favor of the debtor of the bankrupt upon an unproved claim or
one transferred to the debtor after the filing of the petition in
bankruptcy, or within four months before the filing thereof, with
a view to its use for the purpose of set-off, with knowledge or
notice that the bankrupt was insolvent or had committed an act
of bankruptcy. Obviously, the present case does not come
within the exceptions to the general rule made by subdivision b.
It cannot be doubted that, except under special circumstances,
or where there is a statute to the contrary, a deposit of money
upon general account with a bank creates the relation of debtor
and creditor. The money deposited becomes a part of the gen-
eral fund of the bank, to be dealt with by it as other moneys, to
be lent to customers, and parted with at the will of the bank,
and the right of the depositor is to have this debt repaid in
whole or in part by honoring checks drawn against the deposits.
It creates an ordinary debt, not a privilege or right of a fiduciary-
character. National Bank v. Millard, JU Wall. 152, 19 L. ed.
897. Or, as defined by Mr. Justice White, in the case of Davis
V. Elmira Sav. Bank, 161 U. S. 288, 40 L. ed. 702, 16 Sup. Ct.
Rep. 505: "The deposit of money by a customer with his
banker is one of loan, with the superadded obligation that the
money is to be paid, when demanded, by a check. ' ' Scammon v.
Eimball, 92 U. S. 369, 23 L. ed. 485. It is true that the findings
PREFERENCES 279
of fact in this case establish that at the time these deposits were
made the assets of the depositors were considerably less than
their liabilities, and that they were insolvent, but there is noth-
ing in the findings to show that the deposit created other than
the ordinary relation between the bank and its depositor. The
check of the depositor was honored after this deposit was made,
and for aught that appears Stege Brothers might have required
the amount of the entire account without objection from the
bank, notwithstanding their financial condition.
We are to interpret statutes, not to make them. Unless other
sections of the law are controlling, or, in order to give a har-
monious construction to the whole act, a different interpretation
is required, it would seem clear that the parties stood in the
relation defined in § 68a, with the right to set off mutual debts,
the creditor being allowed to prove but the balance of the debt.
§ 68« of the bankruptcy act of 1898 is almost a literal repro-
duction of § 20 of the act of 1867. [14 Stat, at L. 526, c. 176.]
So far as we have been able to discover the holdings were uniform
under that act that set-off should be allowed as between a bank
and a depositor becoming bankrupt. Re Petrie, 7 Nat. Bankr.
Reg. 332, 5 Ben. 110, Fed. Cas. No. 11,040 ; Blair v. Allen, 3 Dill.
101, Fed. Cas. No. 1,483 ; Scammon v. Kimball, 92 U. S. 362, 23
L. ed. 483. In Traders' Nat. Bank v. Campbell, 14 Wall. 87, 20
L. ed. 832, the right of set-off was not relied upon, but a deposit
was seized on a judgment which was a preference.
But it urged that under § 60a this transaction amounts to
giving a preference to the bank, by enabling it to receive a
greater percentage of its debts than other creditors of the same
class. A transfer is defined in § 1 (25) of the act to include the
sale and every other and different method of disposing of or
parting with property, or the possession of property, absolutely
or conditionally, as a payment, pledge, mortgage, gift, or se-
curity. While these sections are not to be narrowly construed so
as to defeat their purpose, no more can they be enlarged by
judicial construction to include transactions not within the scope
and purpose of the act. This section, 1 (25), read with §§ 57 g
and 60a, requires the surrender of preferences having the effect
of transfers of property "as payment, pledge, mortgage, gift,
or security which operate to diminish the estate of the bankrupt
and prefer one creditor over another. ' '
The law requires the surrender of such preferences given to
the creditor within the time limited in the act before he can
^/,
280 PREREQUISITES TO ADJUDICATION
prove his claim. These transfers of property, amouuting to
preferences, contemplate the parting with the bankrupt's prop-
erty for the benefit of the creditor, and the consequent diminu-
tion of the bankrupt's estate. It is such transactions, operating
to defeat the purposes of the act, which, under its terms, are
preferences.
As we have seen, a deposit of money to one's credit in a bank
does not operatteto diminish the estate of the depositor, for when
he parts with the money he creates at the same time, on the
part of the bank, an obligation to pay the amount of the deposit
as soon as the depositor may see fit to draw a check against it.
It is not a transfer of property as a payment, pledge, mortgage,
gift, or security. It is true that it creates a debt, which, if the
creditor may set it off under § 68, amounts to permitting a
creditor of that class to obtain more from the bankrupt's estate
than creditors who are not in the same situation, and do not
hold any debts of the bankrupt subject to set-off. But this does
^ ^^ "jjiiot, in our opinion, operate to enlarge the scope of the statute
l]rr /'defining preferences so as to prevent set-off in cases coming
■- ^<^^ l| within the terms of § 68a.. If this argument were to prevail, it
^ix.^ CK would, in cases of insolvency, defeat the right of set-off recog-
nized and enforced in the law, as every creditor of the bankrupt
holding a claim against the estate subject to reduction to the full
amount of a debt due the bankrupt receives a preference in the
fact that, to the extent of the set-off, he is paid in full.
It is insisted that this court in the case of Pirie v. Chicago
Title & T. Co., 182 U. S. 438, 48 L. ed. 1171, 21 Sup. Ct. Rep.
906, held a payment of money to be a transfer of property within
the terms of the bankrupt act, and when made by an insolvent
within four months of the filing of the petition in bankruptcy,
to amount to a preference, and that case is claimed to be de-
cisive of this. In the Pirie Case the turning question was
whether the payment of money was a transfer within the mean-
ing of the law, and it was held that it was. There the payment
of the money within the time named in the bankrupt law was a
parting with so much of the bankrupt's estate, for which he re-
ceived no obligation of the debtor but a credit for the amount
on his debt. This was held to be a transfer of property within
the meaning of the law. It is not necessary to depart from the
ruling made in that case, that such payment was within the
operation of the law, while a deposit of money upon an open
account subject to check, not amounting to a payment, but
PREFERENCES 281
creating an obligation upon the part of the bank to repay upon
the order of the depositor, would not be. Of the case of Pirie
V. Chicago Title & T. Co., it was said in Jaquith v. Alden, 189
U. S. 78, 82, 47 L. ed. 717, 719, 23 Sup. Ct. Rep. 649,650: "The
judgment below was aflSrmed by this court, and it was held that
a payment of money was a transfer of property, and when made
on an antecedent debt by an insolvent was a preference within
§ 60a, although the creditor was ignorant of the insolvency, and
had no reasonable cause to believe that a preference was intended.
The estate of the insolvent, as it existed at the date of the in-
solvency, was diminished by the payment, and the creditor who
received it was enabled to obtain a greater percentage of his
debt than any other of the creditors of the same class. ' '
In other words, the Pirie Case, under the facts stated, shows
a transfer of property to be applied upon the debt, made at the
time of insolvency of the debtor, creating a preference under
the terms of the bankrupt law. That case turned upon entirely
different facts, and is not decisive of the one now before us.
It is true, as we have seen, that in a sense the bank is permitted
to obtain a greater percentage of its claim against the bankrupt
than other creditors of the same class, but this indirect result is
not brought about by the transfer of property within the mean-
ing of the law. There is nothing in the findings to show fraud
or collusion between the bankrupt and the bank with a view to
create a preferential transfer of the bankrupt's property to the
bank, and in the absence of such showing we cannot regard the
deposit as having other effect than to create a debt to the bank-
rupt, and not a diminution of his estate.
In our opinion the referee and the District Court were right
in holding that the amount of the deposit could be set off against \ ^{^
the claim of the bank, allowing it to prove for the balance, and
the Circuit Court of Appeals, in holding that this deposit
amounted to a preference, to be surrendered before proving they
debt, committed error. -^
Judgment of the Circuit Court of Appeals reversed, and that
of the District Court affirmed; cause remanded to latter court.
Mr. Justice McKENNA dissents.^*
34 — See Studley v. Boylston Nat. Cf. In re Starkweather & Albert,
Bank, 229 U. S. 523, where the de- 206 Fed. 797; In re National Lum-
positor paid the notes by checks ber Co., 212 Fed. 928; Merchants'
drawn on the account. Nat. Bank v. Ernst, 231 U. S. 60.
/^
282 PREREQUISITES TO ADJUDICATION
Uj'^f^^^^^ THOMPSON V. FAIRBANKS
196 U. S. 516, 49 L. ed. 577, 25 Sup. Ct. 306
(United States Supreme Court. February 20, 1905)
The plaintiff in error, by this writ, seeks to review a judgment
of the Supreme Court of the State of Vermont in favor of the
defendant in error. 75 Vt. 361, 56 Atl. 11. The facts upon
which the judgment rests are as follows: On the 30th day of
June, 1900, Herbert E. Moore, of St. Johnsbury, in the State of
Vermont, filed his voluntary petition in bankruptcy in the United
States District Court for the District of Vermont, and on the
3d day of July, 1900, Moore was by the court duly adjudged a
bankrupt, and on the 15th of September, 1900, the plaintiff in
error was appointed a trustee in bankruptcy of Moore's estate,
and duly qualified. He commenced this action in the County
Court of Caledonia County, in the State of Vermont, on the first
Tuesday of June, 1901, against the defendant Fairbanks, to
recover from him the value of certain personal property alleged
to have belonged to the bankrupt Moore on the 16th day of
May, 1900, and which was, as alleged, sold and converted by
Fairbanks, on that day, to his own use, the value of the property
being $1,500, as averred in the declaration. The defendant filed
his plea and gave notice that upon the trial of the case he would
give in evidence and rely upon, in defense of the action, certain
special matters set up in the plea. The case was, by order of
the County Court, and by the consent of the parties, referred
to a referee to hear the cause and report to the court. It was
subsequently heard before the referee, who filed his report, find-
ing the facts upon which the decision of the case must rest. He
found that before June, 1886, the bankrupt Moore bought a
livery stock and business in St. Johnsbury village, in the State
of Vermont. At the time of this purchase the defendant was
the lessor of the buildings in which the business was conducted,
and it continued to be carried on in those buildings. Moore, in
making the purchase, had assumed a mortgage then outstanding
on the property, and a short time before March 1, 1888, the
defendant assisted him to pay this mortgage by signing a note
with him for $1,425, payable to the Passumpsic Savings Bank of
St. Johnsbury. Subsequently defendant signed notes, which,
with accrued interest, were merged in one, dated March 1, 1900,
for $2,510.75, due on demand to said savings bank, signed by
PREFERENCES 283
the bankrupt and by the defendant as his surety. This note had
not been paid when the case was referred to the referee. The
defendant also signed other notes payable to the First National
Bank of St. Johnsbury, which were merged into one, and, by
various payments made by Moore, it was reduced to $525, and
on June 4, 1900, it was paid by the defendant. All these notes
had been signed by the defendant to assist Moore in carrying
on, building up, and equipping his livery stable and livery busi-
ness, and as between them the notes belonged to Moore to pay.
On April 15, 1891, Moore gave the defendant a chattel mort-
gage on the livery property to secure him for these and other
debts and liabilities. The property was described in the mort-
gage as follows : ' ' All my livery property, consisting of horses,
wagons, sleighs, vehicles, harnesses, robes, blankets, etc., also all
horses and other livery property that I may purchase in mv
business or acquire by exchange."
The condition contained in the mortgage was, that if Moore
should ' ' well and truly pay, or cause to be paid, to the said Henry
Fairbanks all that I now owe him, or may owe him hereafter by
note, book account, or in any other manner, and shall well and
truly save the said Henry Fairbanks harmless, and indemnify
him from paying any commercial paper on which he has become
or may hereafter become holden in any manner for my benefit
as surety, indorser, or otherwise, then this deed shall be void;
otherwise of force."
This mortgage was acknowledged, and the affidavit, as pro-
vided by the Vermont statute, was appended, showing the justice
of the debt and the liability contemplated to be secured by the
mortgage, and the mortgage was duly recorded on the 18th day
of April, 1891, in the St. Johnsbury clerk's office, by the town
clerk thereof. On March 5, 1900, Moore gave the defendant an-
other chattel mortgage on this livery stock, which, on March 23,
1900, defendant assigned to the Passumpsic Savings Bank, and
that bank has ever since been its holder and owner. This mort-
gage was given to secure defendant against all his liabilities for
Moore.
On the 7th of May, one John Ryan sued out a writ in assump-
sit against Moore to recover some $500, and an attachment on
the livery stock was levied in that suit by the deputy sheriff.
This attachment remained in force until dissolved by the bank-
ruptcy proceedings, and the suit is still pending in the State
Court of Vermont.
284 PREREQUISITES TO ADJUDICATION
Uuder the agreement contained in the chattel mortgage of
April, 1891, Moore made sales, purchases, and exchanges of
livery stock to such an extent that on March 5, 1900, there only
remained of the livery property on hand April 15, 1891, two
horses. These sales, exchanges, and purchases were sometimes
made by Moore without communication with or advice from the
defendant, and frequently after consultation with him. The
livery stock, as it existed on May 16, 1900, was all acquired by
exchange of the original stock, or with the avails of the old
stock, or from the money derived from the business. Some years
after the execution of the chattel mortgage of April 15, 1891,
Moore became embarrassed, and finally, shortly prior to March
5, 1900, he became and continued wholly insolvent. On May
16, 1900, the defendant, acting under the advice of counsel, and
with the consent of Moore, took possession, under the mortgage
of April 15, 1891, of all the livery property then on hand, and
on June 11, 1900, caused the same to be sold at public auction
by the sheriff. It is for the net avails of this sale, amounting to
$922.08, which the sheriff paid over to the defendant, that this
suit is brought. The Passumpsic Savings Bank on September
15, 1900, proved its note of $2,510.75 as an unsecured claim
against the bankrupt estate of Moore, as the mortgage held by
the bank as security had been given by Moore in March, 1900, to
defendant, and by him assigned to the bank within four months
of the filing of the petition in bankruptcy.
For the purpose of defeating the effect of the defendant taking
possession of the livery property under his chattel mortgage of
April, 1891, the trustee in bankruptcy presented a petition to
the United States District Court of Vermont for leave to inter-
vene as plaintiff in the Ryan attachment suit, and to have the
lien of Ryan's attachment preserved for the benefit of the gen-
eral creditors. This petition was dismissed by that court. The
referee found that the defendant and his counsel knew, when he
took possession of the livery property, under his mortgage, that
Moore was insolvent, and was considering going into bankruptcy.
The referee also found that he did not intend to perpetrate any
actual fraud on the other creditors, or any of them, but he did
intend thereby to perfect his lien on the livery property, and
make it available for the payment of his debt before other com-
plications by way of attachment or bankruptcy arose, and he
understood at that time that it was probable that the Ryan at-
tachment would hold good as against his mortgage. All the prop-
PREFERENCES 285
erty of which defendant took possession was acquired by Moore
with the full understanding and intent that it should be covered
by the defendant's mortgage of April 15, 1891.
Mr. Justice PECKHAM, after making the foregoing state-
ment of facts, delivered the opinion of the court:
This is a contest between a trustee in bankruptcy representing
the creditors of the bankrupt, and the defendant, the mortgagee
in a chattel mortgage dated and executed April 15, 1891, and
duly recorded April 18 of that year. The defendant has paid
some $500 of the indebtedness of the bankrupt for which de-
fendant was liable as indorser on a note, and he remains liable
to pay the note of $2,510.75, held by the Passumpsic Savings
Bank, which was signed by him as surety.
The property taken possession of by the defendant under the
chattel mortgage was sold by a deputy sheriff on the 11th of
June, 1900, and the net avails of the sale, amounting to $922.08,
have been paid over by the officer who made the sale, to the
defendant.
This suit is brought by the trustee to recover from the defend-
ant those net avails on the theory that the action of the defend-
ant in taking possession and making the sale of the property
was unlawful under the provisions of the bankrupt act.
The defendant had assisted the bankrupt in the purchase of
the property and had indorsed notes for him in order to enable
him to carry on the business of conducting a livery stable. This
mortgage, to secure him for these payments and liabilities, was
given some seven years before the passage of the bankrupt act,
and at the time it was given it was agreed by the parties to it that
the bankrupt might sell or exchange any of the livery stock cov-
ered by it, as he might desire, and should, by purchase or ex-
change, keep the stock good, so that the defendant's security
should not be impaired, and it was also agreed that all after*
acquired livery property should be covered by the mortgage as
security for the debts specified therein.
* * •
There is no pretense of any actual fraud being committed or
contemplated by either party to the mortgage. Instead of tak-
ing possession at the time of the execution of the mortgage, the
defendant had it recorded in the proper clerk's office, and the
record stood as notice to all the world of the existence of the lien
as it stood when the mortgage was executed, and that the de-
286 PREREQUISITES TO ADJUDICATION
fendant would have the right to take possession of property sub-
sequently acquired, as provided for in the mortgage. The bank-
rupt was, therefore, not holding himself out as unconditional
owner of the property, and there was no securing of credit by
reason of his apparent unconditional ownership. The record
gave notice that he was not such unconditional owner. There
was no secret lien, and if defendant cannot secure the benefit
of this mortgage, which he obtained in 1891, as a lien upon the
after-acquired property, yet prior to the title of the trustee for
the benefit of creditors, it must be because of some provision of
the bankruptcy law, which we think the court ought not to con-
strue or endeavor to enforce beyond its fair meaning.
In Vermont it is held that a mortgage such as the one in
question is good. The Supreme Court of that state has so held
in this case, and the authorities to that effect are also cited in
the opinion of that court. And it is also there held that when
the mortgagee takes possession of after-acquired property, as
provided for in this mortgage, the lien is good and valid as
against every one but attaching or judgment creditors prior to
the taking of such possession.
At the time when the defendant took possession of this after-
acquired property, covered by the mortgage, there had been a
breach of the condition specified therein, and the title to the
property was thereby vested in the mortgagee, subject to the
mortgagor's right in equity to redeem. This has been held to
be the law in Vermont (aside from any question as to the effect
of the bankrupt law), both in this case and in the cases also
cited in the opinion of the Supreme Court of Vermont. The
taking of possession of the after-acquired property, under a
mortgage such as this, is held good, and to relate back to the
date of the mortgage, even as against an assignee in insolvency.
Peabody v. Landon, 61 Vt. 318, 15 Am. St. Rep. 903, 17 Atl. 781,
and other cases cited in the opinion of the Supreme Court.
Whether and to what extent a mortgage of this kind is valid
is a local question, and the decisions of the state court will be
followed by this court in such case. Dooley v. Pease, 180 U. S.
126, 45 L. ed. 457, 21 Sup. Ct. Rep. 308.
The question that remains is whether the taking of possession,
after condition broken, of these mortgaged chattels before al-
though within four months of filing the petition in bankruptcy,
was a violation of any of the provisions of the bankrupt act.
The trustee insists that such taking possesMon of the after-
PREFERENCES 287
acquired property, under the mortgage of 1891, constituted a
preference under that act. He contends that the defendant did
not have a valid lien against creditors, under that act ; that his
lien might, under other circumstances, have been consummated
by the taking of possession, but, as that was done within four
months of the filing of the petition in bankruptcy, the lien was
not valid.
Did this taking of possession constitute a preference within
the meaning of the act?
It was found by the referee that when the defendant took
possession of the property he knew that the mortgagor was in-
solvent and was considering going into bankruptcy, but that he
did not intend to perpetrate any actueil fraud on the other cred-
itors, or any of them, but did intend thereby to perfect his lien
on the property, and make it available for the payment of his
debts before other complications, by way of attachment or bank-
ruptcy, arose. He then understood that Ryan 's attachment would
probably hold good against his mortgage. The question whether
any conveyance, etc., was in fact made with intent to defraud
creditors, when passed upon in the state court, is not one of a
Federal nature. McKenna v. Simpson, 129 U. S. 506, 32 L. ed.
771, 9 Sup. Ct. Rep. 365 ; Cramer v. Wilson, 195 U. S. 408, 25
Sup. Ct. Rep. 95, 49 L. ed. 256. It can scarcely be said that the
..fipforcement of a lien by the taking possession, with the consent
of the mortgagor, of after-acquired property covered by a valid
mortgage, is a conveyance or transfer within the bankrupt act.
There is no finding that, in parting with the possession of the
property, the mortgagor had any purpose of hindering, delay-
ing, or defrauding his creditors, or any of them. Without a find-
ing to the effect that there was an intent to defraud, there was
no invalid transfer of the property within the provisions of
§ 67e of the bankruptcy law. Sabin v. Camp, 98 Fed. 974.
In the case last cited the court, upon the subject of a prefer-
ence, held that though the transaction was consummated within
the four months, yet it originated in October, 1897, and there
was no preference under the facts of that case. "What was done
was in pursuance of the pre-existing contract, to which no ob-
jection is made. Camp furnished the money out of which the
property, which is the subject of the sale to him, was created.
He had good right, in equity and in law, to make provision for
the security of the money so advanced, and the property pur-
chased by his money is a legitimate security, and one frequently
288 PREREQUISITES TO ADJUDICATION
employed. There is always a strong equity in favor of a lien
by one who advances money upon .the property which is the
product of the money so advanced. This was what the parties
intended at the time, and to this, as already stated, there is,
and can be, no objection rn^la-gi^r in morals. And when,
at a later date, but still prior to the filing of the petition in
bankruptcy, Camp exercised his rights, under this valid and
equitable arrangement, to possess himself of the property, and
make sale of it in pursuance of his contract, he was not guilty
of securing a preference under the bankruptcy law. ' '
The principle that the taking possession may sometimes be
held to relate back to the time when the right so to do was
created is recognized in the above case. So in this case, although
there was no actual existing lien upon this after-acquired prop-
erty until the taking of possession, yet there was a positive
agreement, as contained in the mortgage and existing of record,
under which the inchoate lien might be asserted and enforced,
and when enforced by the taking of possession, that possession
under the facts of this case, related back to the time of the
execution of the mortgage of April, 1891, as it was only by vir-
tue of that mortgage that possession could be taken. The Su-
preme Court of Vermont has held that such a mortgage gives
an existing lien by contract, which may be enforced by the
actual taking of possession, and such lien can only be avoided
by an execution or attachment creditor whose lien actually
attaches before the taking of possession by the mortgagee. Al-
though this after-acquired property was subject to the lien of
an attaching or an execution creditor, if perfected before the
mortgagee took possession under his mortgage, yet, if there
were no such creditor, the enforcement of the lien by taking
possession would be legal, even if within the four months pro-
vided in the act. There is a distinction between the bald crea-
tion of a lien within the^oiiniionths, and tKe enforcement of
one provided for in a mortgage executed years before the pas-
sage, of the act by virtue of which mortgage, and because of
the condition broken, the title to the property becomes vested
in the mortgagee, and the subsequent taking possession becomes
valid, except as above stated. A trustee in bankruptcy does not,
in such circumstances, occupy the same position as a creditor
levying under an execution, or by attachment, and his rights,
in this exceptional ease, and for the reasons just indicated, are
PREFERENCES 289
somewhat different from what they are generally stated. Muel-
ler V. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269.
It is admitted on the part of the counsel for the plaintiff in
error that the rule in Vermont, in cases of chattel mortgages of
after-acquired property (where possession by the mortgagee
is necessary to perfect his title as against attaching or execu-
tion creditors), is that, although such possession be not taken
until long after the execution of the mortgage, yet the posses-
sion, when taken (if it be before the lien of the attaching or
execution creditor), brings the property under the cover and
operation of the mortgage as of its date, — ^the time when
the right of possession was first acquired. It was also admitted
that the Supreme Court of Vermont has held that when a
chattel mortgage requiring possession of the mortgaged prop-
erty to perfect it as to third persons was executed more than
four months before the commencement of insolvency proceed-
ings, the taking of actual possession of the mortgaged property
within the four months' period brought that property under
the mortgage as of its date, and so did not constitute a pref-
erence voidable by the trustee, although the other elements con-
stituting a preference were present. Many decisions of the
Supreme Court of Vermont are cited to this effect. It will be
observed, also, that the provisions of the state insolvency law in
regard to void and voidable preferences and transfers were
identical with similar provisions of the bankruptcy act of 1867.
Gilbert v. Vail, 60 Vt. 261, 14 Atl. 542.
Under that law it was Held that the assignee in bankruptcy
stood in the shoes of the bankrupt, and that "except where,
within a prescribed period before the commencement of pro-
ceedings in bankruptcy, an attachment has been sued out against
the property of the bankrupt, or where his disposition of his
property was, under the statute, fraudulent and void, his as-
signees take his real and personal estate, subject to all equities,
liens, and encumbrances thereon, whether created by his act or
by operation of law." Yeatman v. New Orleans Sav. Inst., 95
U. S. 764, 24 L. ed. 589. See also Stewart v. Piatt, 101 U. S.
731, 25 L. ed. 816 ; Hauselt v. Harrison, 105 U. S. 401, 26 L. ed.
1075. Under the present bankrupt act, the trustee takes the
property of the bankrupt, in cases unaffected by fraud, in the
same plight and condition that the bankrupt himself held it, and
subject to all the equities impressed upon it in the hands of the
bankrupt, except in cases where there has been a conveyance or
H. & A. Bankruptcy — 19
290 PREREQUISITES TO ADJUDICATION
encumbrance of the property which is void as against the
trustee by some positive provision of the act. Re Garcewich, 53
C. C. A. 510, 115 Fed. 87, 89, and cases cited.
It is true that in the case in 95 U. S. 764, 24 L. ed. 589, the
savings institution had a special property in the certificates
which were the subject of dispute, and had possession of them
at the time of the bankruptcy proceedings, and it was held that
the institution was not bound to return them, either to the bank-
rupt, the receiver, or the assignee in bankruptcy, prior to the
time of the payment of the debt for which the certificate was
held. So the state court held in this case, where the defendant
took possession under the circumstances detailed, by virtue of
his mortgage, and where he had the legal title to the property
mortgaged, after condition broken, that the possession thus taken
related back to the date of the giving of the mortgage, and in
thus enforcing his lien there was not a violation of any of the
provisions of the bankruptcy act.
In Wilson Bros. v. Nelson, 183 U. S. 191, 46 L. ed. 147, 22
Sup. Ct. Rep. 74, it was held that the bankrupt had committed
an act of bankruptcy, within the meaning of the bankrupt law,
by failing, for at least five days before a sale on the execution
issued upon the judgment recovered, to vacate or discharge the
judgment, or to file a voluntary petition in bankruptcy. The
judgment and execution were held to have been such a prefer-
ence, "suffered or permitted" by the bankrupt, as to amount to
a violation of the bankrupt act. Although the judgment was
entered upon the power of attorney given years before the pass-
age of the bankrupt act, it was nevertheless regarded as ' ' suffer-
ing or permitting" a preference, within that act. This is not
such a case. As we have said, there is no finding that the de-
fendant had reasonable cause to believe that by the change of
possession it was intended to give a preference. As the state
court has said, it was rather a recognition of what was regarded
as a right under the previous agreement contained in the
mortgage.
Nor does the existence of the Ryan attachment, or the chattel
mortgage of March 5, 1900, executed by the bankrupt, and de-
livered to the defendant, and by him assigned, on the 23d of
March, 1900, to the bank, create any greater right or title in
the trustee than he otherwise would have. The trustee moved
under § 67/, [30 Stat, at L. 565, c. 541, U. S. Comp. Stat.
1901, p. 3450], on notice to the defendant, for an order that the
PREFERENCES ' 291
right or lien under the Ryan attachment should be preserved,
so that the same might pass to the trustee for the benefit of the
estate, as provided for in that section. This was denied. And
unlessi such permission had been granted, the lien of the attach-
ment was not preserved by the act, but, on the contrary, it was
dissolved under § 67c_.
The mortgage assigned to the bank, and the attachment ob-
tained by Ryan, having been dissolved by the bankrupt proceed-
ings, the defendant's rights under his mortgage of April 15,
1891, stood the same as though there had been no subsequent
mortgage given, or attachment levied. This is the view taken
by the state court of the effect of the dissolution of the mort-
gage and attachment liens under the bankrupt act, and we think
it is the correct one. It is stated in the opinion of the state
court as follows:
"It is urged that with the annulment of the attachment, the
property affected by it passed to the trustee as a part of the
estate of the bankrupt under the express provisions of § 67/.
There would be more force in this contention were it not for the
provision that, by order of the court, an attachment lien may be
preserved for the benefit of the estate. If there is no other
lien on the property, there can be no occasion for such order;
for, on the dissolution of the attachment, the property, unless
exempt, would pass to the tnistee anyway. It is only when the
property for some reason may not otherwise pass to the trustee
as a part of the estate that such order is necessary. We think
such is the purpose of that provision, and that unless the lien
is preserved, the property, as in the case at bar, may be held
upon some other lien, and not pass to the trustee. Re Sentenne
& Green Co., 120 Fed. 436."
We think the judgment of the Supreme Court of Vermont
was right, and it is affirmed.^''
In re CUTTING
145 Fed. 388
(District Court, W. D. New York. May 7, 1906)
HAZEL, District Judge. The report of the special master
herein finds that the alleged bankrupt, Benjamin W. Cutting,
35— C/. In re Eeynolds, 153 Fed. v. Hand, 206 U. S. 415, 423; Taney
295. See Security Warehousing Co. v. Penn Nat. Bank, 232 U. S. 174.
292 PREREQUISITES TO ADJUDICATION
committed an act of bankruptcy in transferring, while insolvent,
certain personal property, by executing and delivering chattel
mortgages thereon, with intent to create an unlawful preference
under the bankrupt act. The undisputed facts are as follows:
The opposing creditors, Lazell & Co., at different times, begin-
ning in the year 1899, loaned and advanced money to the bank-
rupt, accepting as security therefor a chattel mortgage upon
si)ecified personal property. Such chattel mortgage was exe-
cuted and delivered on April 24, 1901, and on February 8, 1902,
another mortgage was given in renewal thereof to secure amounts
due and to become due covering the property specified in the
former mortgage. Subsequently, on March 12 and 13, 1903, re-
spectively, the debtor gave to said secured creditors two chattel
mortgages to secure the sum of about $3,000, the amount then
due, as appears by the testimony of Cutting, which mortgages
covered the property theretofore mortgaged to them, and in
addition a so-called Hartman machine, not enumerated in the
prior incumbrance. The mortgage liens were duly recorded or
filed in the town clerk's office, as required by the statute of the
state. It is claimed, however, that the mortgages of March 12
and 13, 1903, were not continued of force against the creditors
of the mortgagor or subsequent purchasers or mortgagees in
good faith, in that c. 528, p. 460, of the Laws of 1896, which
requires that a statement describing the mortgage, and the
time and place of its filing, be filed within the 30 days, was
not complied with. There exists some contrariety of decisions
in relation to the effect of an omission to strictly comply with
the provisions of the statute as to whether a mortgage ceased to
be valid against a creditor at large of the mortgagor, or if a cred-
itor must be in a situation to seize the mortgaged property pur-
suant to a lien upon it. This proposition I conceive to be
definitely decided in the Matter of New York Economical Print-
ing Co., 110 Fed. 514, 49 C. C. A. 133, where the state court
authorities are cited and examined by the Circuit Court of Ap-
peals for this circuit, and which holds that:
"Only such creditors can take advantage of it [the statute]
as are armed with some legal process authorizing the seizure
of the mortgaged property, and are thereby in a position to
enforce a lien upon it."
The cases hold that a trustee in bankruptcy takes the property
in the same plight and condition that the bankrupt himself held
it, assuming the transaction free from fraud and subject to
PREFERENCES 293
the existing equities. Hewit v. Berlin Machine Works. 194 U. S.
296, 24 Sup. Ct. 690, 48 L. ed. 986 ; Thompson v. Fairbanks, 196
U. S. 516, 25 Sup. Ct. 306, 49 L. ed. 577. And as between the
alleged bankrupt and the mortgagees, giving due consideration
to the facts of this case, it is thought that the mortgages in
question were neither void nor fraudulent. The contesting cred-
itors contend that such mortgages were practically j:gnewals
and covered the identical property; that they were not void as
against the mortgagees, though given as collateral security for a
pre-existing debt owing from the bankrupt, and no statement
having been filed in accordance with the state enactment men-
tioned. The evidence satisfies me that the transaction was not in
bad faith, and that no intention existed to defeat the operation
of the bankrupt act. Hence, it is immaterial that Cutting was,
or that the mortgagees had reason to believe him, insolvent. The
bankrupt act does not forbid the giving of other or different
security within the four months period to replace security pre-
viously given, if such security is a valid one and of equal value
as that previously given. The mortgagor might have surren-
dered the possession of the property of the mortgagees just prior
to making the new mortgages. Indeed, the mortgagees could
legally have taken possession thereof in payment of their lien,
though there had been no compliance with the statute regard-
ing refiling. As said in Sawyer v. Turpin, 91 U. S. 114, 23 L. ed.
235:
' ' The mortgage covered the same property. It embraced noth-
ing more. It withdrew nothing from the control of the bank-
rupt, or from the reach of the bankrupt's creditors, that had
not been withdrawn by the bill of sale. Giving the mortgage in
lieu of the biU of sale, as was done, was therefore a mere ex-
change in the form of the security. In no sense can it be re-
garded as a new preference. The preference, if any, was
obtained on the l^f}} of Mav. ^l;|en t.hf> bill qf salp. Yf^a giygTi^
more than four months before the petition in bankruptcy was
filed. It is too well settled to require discussion that an exchange j
of securities within the four months is not a fraudulent pref- |
erence within the meaning of the bankrupt law, even when the
creditor and the debtor know that the latter is insolvent, if the
security given up is a valid one when the exchange is made, and
if it be undoubtedly of equal value with the security substituted
for it."
This language, in a ease where the lacts were only slightly
294 PREREQUISITES TO ADJUDICATION
different, is not thought inapplicable here. It was held in Re
Shepherd, 6 Am. Bankr. Rep. 725, that where a new chattel
mortgage, which was duly recorded, was given within four
months of filing the petition, in place of a prior mortgage and
for a valuable consideration, the new mortgage operates as a
continuance of the prior incumbrance, and, as no lien inter-
vened before the bankruptcy, there was no illegal preference. In
Asbury Park Building & Loan Association v. Shepherd, 6 Am.
Bankr. Rep. 725, it is stated that :
''The mere exchange of securities within four mouths is not
a preference within the meaning of the bankrupt law; the rea-
sons being that the change takes nothing from the other
creditors. ' '
There a new mortgage was substituted for a prior security
within four months of the filing of the petition in bankruptcy.
The facts of that case are similar to thase here presented. See,
also, Stewart v. Piatt, 101 U. S. 731, 25 L. ed. 816. In this case
the same property was included in the mortgages given by
Cutting to replace prior ones to secure an indebtedness already
existing, and, as already stated, in addition thereto the Hart-
man machine, which inclusion was warranted by a present con-
sideration of $125, subsequently used by the bankrupt in pay-
ment of insurance. True, the referee found that the later
mortgage included property not enumerated in the earlier, but
a careful comparison of the two instruments indicates otherwise.
Various of the items were a little differently described, but the
schedule of personal property attached to the mortgage reason-
ably identifies the articles as practically the same, with the ex-
ception of the Hartman machine and the offspring of the stock
mentioned in the earlier mortgage.
* * #
The mortgages to Taylor & Wakeman, claimed to have been
unlawful transfers in contravention of the bankrupt act, were
also executed and delivered by the bankrupt as substitutes for
prior unpaid mortgage liens, and come under the views herein
expressed.
* * *
The petition for adjudication of Benjamin W. Cutting as a
bankrupt is therefore dismissed. So ordered.^^
36— C/. Becker Co. v. Gill, 206
Fed. 36.
PREFERENCES 295
In re GREAT WESTERN MFG. CO. ^ / ia^
152 Fed. 123, 81 C.C. A. 341
(Circuit Court of Appeals, Eighth Circuit. March 4, 1907)
SANBORN, Circuit Judge. The J. T. Royston Milling Com-
pany, a corporation, was adjudged a bankrupt upon a petition
filed on January 6, 1905. Prior to September 6, 1904. the Great
Western Manufacturing Company, a corporation, had sold, in-
stalled, and put in operation in the Royston Company's mill at '
Fremont, in the state of Nebraska, certain machinery and ma-
terial, for which at the time of their final acceptance it gave its
promissory notes for $10^^034.60 and an agreement that the title
and the right to the possession of the machinery and material
should remain in the vendor until the notes were paid, notwith-
standing any agreement or security that was or might be taken
for the performance of the agreement, and that the payment of
the notes should be secured by a mortgage on the mill and its
appurtenances, or equivalent security, at the election of the Great
Western Company. This agreement was first filed in the proper
county clerk's office on October 8. 1904. On October 10, 1904,
the vendee made a mortgage on the mill and its appurtenances
which was recorded in the office of the register of deeds of the
proper county on the same day. The mill and its appurtenances,
including the machinery and material sold by the Great Western
Manufacturing Company, were sold by order of the court below
for $16,400. The Great Western Company immediately there-
after filed its claim, and asked that it be paid in full out of the
proceeds of the sale inpreference to the claims of other creditors.
The referee allowed the claim for $10,532.50, and denied it any
preference. The District Court reversed this order, held that the
agreement was valid and the mortgage a voidable preference,
and directed that the vendor should be paid in preference to the
other creditors such a proportion of the $16,400 as the value of
the machinery and material it sold bore to the value of the mill
and appurtenances at the time of the sale of the latter. It now
presents its petition to revise this order because the court below
did not uphold the mortgage and sustain its claim for a pref-
erence thereunder for the entire amount of the bankrupt's debt
to it. The trustee moves to dismiss the petition because it was
filed more than 10 days after the order assailed was made, and
because it involves disputed questions of fact which it is alleged
296 PREREQUISITES TO ADJUDICATION
can only be determined by appeal, and the trustee prays that if
the merits of the case are considered the petitioner be denied
any preference whatever.
While it is true that counsel do not agree upon the facts, the
record fairly establishes those which have been stated, and upon
them the case will be determined. The agreement of conditional
sale whereby the vendor retained the title to the machinery and
material until its purchase price was paid did not create a pref-
erence voidable under the bankruptcy law because it was given
for a present consideration, for the machinery and material
which were and continued to be the property of the vendor, and
because it was made more than four months before the petition
in bankruptcy was filed. Agreements of this nature which are
not filed or recorded in the proper public ofiice are voidable by
purchasers, attaching creditors, and judgment creditors only, un-
der the statuteToTReBraska (Comp. St. 19U1, Neb. c. 32, § 26 ;
CampbeU Printing, etc., Co. v. Dyer, 46 Neb. 830, 836, 65 N. W.
904 ; McCormick Harvesting Machine Co. v. Callen, 48 Neb. 849,
67 N. W. 863), and there was none of either class when the peti-
jtion in bankruptcy was filed in this case. The contract was there-
fore valid and enforceable against the bankrupt and against his
ordinary creditors, and hence against the trustee, for he had no
better right or title to the property than they, and he suffered
no prejudice from the order of the court. Hewit v. Berlin Ma-
chine Works, 194 U. S. 296, 297, 303, 24 Sup. Ct. 690, 48 L. ed.
986; Thompson v. Fairbanks, 196 *U. S. 516, 25 Sup. Ct. 306,
49 L. ed. 577 ; York Mfg. Co. v. Cassell, 201 U. S. 344, 352, 26
Sup. Ct. 481, 50 L. ed. 782.
The Great Western Company insists, however, that it was en-
titled to payment of the entire amount of its claim out of the
proceeds of the trustee's sale of the mill and machinery, be-
cause the proportion of those proceeds which the value of the
machinery and material bore to the value of the mill and its
appurtenances was but one-third, and under the order of the
court it will sustain a heavy loss, and because it had a mortgage
upon the entire property given in execution of an agreement
made more than four months before the petition in bankruptcy
was filed. The vendor had the right to take the machinery and
material out of the mill and dispose of it as it saw fit. If it had
applied to the court to do so and its application had been denied,
it would have been entitled to recover of the trustee the value of
its right. But it presented no such claim and made no applica-
:^^
PREFERENCES 297
tion of that nature. The proceedings in bankruptcy were pend-
ing from January 6, 1905, until May 25, 1905, before the sale
was made. It was ordered on May 12, 1905, and the first act of
the Great Western Company was the filing of a claim for a pref-
erence in payment out of the proceeds after the sale had been
made. Its acquiescence in the sale of its property in the mill withi
that of the bankrupt estopped it from receiving out of the pro-l
ceeds of the sale of the entire lot any larger proportion than the*
value of its property bore to the value of the entire property sold. \
The mortgage was executed and recorded on October 10, 1904,
within the four months prior to the filing of the petition in bank- %
ruptcy. The mortgagor was then hopelessly insolvent. The
effect of the enforcement of the mortgage will be to enable the
mortgagee to obtain a greater percentage of its debt than any
of the bankrupt's other creditors of the same class can obtain,
and the referee and the court were of the opinion, in which we
concur, that the mortgagee had reasonable cause to believe when
the mortgage was made that it was intended to give a preference
thereby. But counsel persuasively argue that this mortgage
escapes the ban of § 60 of the bankruptcy law (Act July 1,
1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]), be-
cause it was made in the performance of the provision of the
agreement of conditional sale that the notes of the vendee should
**be secured by first mortgage on said premises and appurten-
ances (the mill site and mill), or equivalent security, at the y »
first party's (the vendor's) election," and the question arises, '^^^
is a mortgage or other transfer of an insolvent 's property within
the four months which is otherwise voidable as a preference pro- \-^
tected by an agreement to make it executed prior to the four / ^
months? The statutes regarding the filing and recording of
mortgages and transfers do not condition this issue in the case
before us, and their effect will not be farther noticed, because
the statutes of Nebraska do not avoid mortgages as against the
mortgagors and their ordinary creditors for failure to file or
record them. They make them voidable against attaching and
judgment creditors only. Comp. St. Neb, 1901, c. 32, § 14 ; For-
rester V. Bank, 49 Neb. 655, 68 N. W. 1059 ; Lancaster County
Bank V. Gillilan, 49 Neb. 165, 68 N. "W. 352.
Argument by analogy in support of an affirmative answer to
the question here at issue may well be drawn from In re J. P.
Grandy & Son (D. C.) 146 Fed. 318, Wilder v. Watts (D. C.)
138 Fed. 426, McDonald v. Daskam, 53 C. C. A. 554, 116 Fed.
298
PREREQUISITES TO ADJUDICATION
276, and In re Wittenberg Veneer & Panel Co. (D. C.) 108 Fed.
593, 595, in which assignments of policies of insurance within
the four mouths pursuant to agreements to make them, executed
prior to the four months, were sustained under peculiar circum-
stances and from Sabin v. Camp (C. C.) 98 Fed. 974, in which
a conveyance within the four months upon a payment of the
balance of the purchase price was sustained where it had been
made in performance of a contract executed prior to the four
months to the effect that the creditor should advance money to
purchase the property, should have a lien upon it, and the option,
which he exercised, to buy it at a specified price for the amount
of the money he had advanced and the cash balance requisite to
aggregate the required amount.
But the theory and purpose of the bankruptcy act were to dis-
j tribute the unexempt property which the bankrupt owned four
I months before the filing of the petition in bankruptcy against
' him, share and share alike, among his creditors of the same class.
To this end every judgment procured or suffered against him,
every transfer by an insolvent of any of his property, every con-
ceivable way of depleting it after the commencement of the four
months the effect of which is "to enable any one of his creditors
to obtain a greater percentage of his debt than any other of such
creditors of the same class," is declared to be a voidable pref-
erence if the creditor lias reason to believe that a preference is
intended thereby. Act July 1, 1898, c. 541, and Act, Feb. 5,
1903, c. 487, 30 Stat. 562, 32 Stat. 799 [U. S. Comp. St. 1901,
p. 3445 ; U. S. Corap. St. Supp. 1905, p. 689] ; Swarts v. Fourth
National Bank, 54 C. C. A. 387, 389, 117 Fed. 1, 3. An agree-
ment to mortgage or to transfer is not a mortgage or a transfer.
The title remains in the owner unincumbered by the mortgage
until the mortgage or transfer is effected. AVhen the agreement
is made before, and the mortgage or transfer within, the four
months, the title stands unincumbered by the latter at the com-
mencement of the four months, and the proceeds of that title are
pledged under the bankruptcy law for the benefit of all the
creditors pro rata. Any subsequent mortgage or transfer with-
draws that title or a portion of its value from these creditors,
and a just and fair interpretation and execution of the act de-
mands that such a mortgage or transfer should be adjudged
voidable if it is otherwise so, and that the mortgagee or trans-
feree should be remitted to his original agreement. In this way
the property at the commencement of the four months and its
PREFERENCES 299
value may be preserved for the general creditors, and the mort-
gagee or transferee may retain every lawful advantage his earlier
contract confers upon him. Any other course of decision opens
a new and enticing way to secure preferences, nullifies every
provision of the law to prevent them, and invites fraud and per-
jury. Hold that transfers within four months in performance
of agreements to make them before that time do not constitute)
voidable preferences, and honest debtors would agree with their/
favored creditors before the four months that they would subse-
quently secure them by mortgages or transfers of their property,!
and just before the petitions in bankruptcy were filed they would i
perform their agreements. Dishonest men who made no such
contracts might falsely testify that they had done so and thus
by fraud and perjury sustain preferential transfers and mort-
gages made within the four months to relatives or friends. The
great body of the creditors would be left without share in the
property of their debtor and without remedy, and a law con-
ceived and enacted to secure a fair and equal distribution of the
property of debtors among their creditors would fail to accom-
plish one of its chief objects. This court will hesitate long before
it approves a rule so fatal to the most salutary provisions of the
bankruptcy law, and our conclusion is :
A mortgage or transfer of his property by an insolvent debtor
within four months of the filing of a petition in bankruptcy
against him, which otherwise constitutes a voidable preference,
is not deprived of that character or made valid by the fact that
it was executed in performance of a contract to do so made
more than four months before the filing of the petition. Wilson
V. Nelson, 183 U. S. 191, 198, 22 Sup. Ct. 74, 46 L. ed. 147 ; In re
Sheridan (D. C.) 98 Fed. 406; In re Dismal Swamp Co. (D. C.)
135 Fed. 415, 417, 418; In re Ronk (D. C.) Ill Fed. 154; Pol-
lock V. Jones, 124 Fed. 163, 61 C. C. A. 555 ; Anniston Iron &
Supply Co. V. Anniston Rolling Mill Co. (D. C.) 125 Fed. 974;
Johnston v. Huff, Andrews & Moyler Co., 133 Fed. 704, 66 C. C.
A. 534; In re Mandel (D. C.) 127 Fed. 863.^7 In Wilson v.
Nelson, 183 U. S. 191, 198, 22 Sup.'Ct. 74, 46 L. ed. 147, the
debtor had given an irrevocable power of attorney to the creditor
to confess judgment many years before. Judgment was con-
fessed under it within the four months, and the Supreme Court
37— Citizens' Trust Co. v. Tilt.
200 Fed. 410, ace.
300 PREREQUISITES TO ADJUDICATION
'held it to be a voidable preference. In re Sheridan (D, C.)
98 Fed. 406, In re Ronk (D. C.) Ill Fed. 154, and In re Dis-
mal Swamp Co. (D. C.) 135 Fed. 415, 417, 418, mortgages ex-
ecuted within the four months in performance of agreements
to give them made more than four months before the filing of
the petitions in bankruptcy were held to be voidable prefer-
ences, and this view seems to be sustained by the terms of the
bankruptcy act, by the more cogent reasons, and by the weight
of authority. There was therefore no error in the decision below
that the mortgage constituted a voidable preference, and that the
/ limit of the vendor 's preferential right was to receive the pro-
/ portion of the proceeds of the sale justly attributable to the
\ machinery and the material the ownership of which it retained.^*
RICHARDSON v. SHAW
209 U. S. 365, 52 L. ed. 835, 28 Sup. Ct. 512
(United States Supreme Court. April 6, 1908)
Mr. Justice DAY delivered the opinion of the court :
This case comes here upon a writ of certiorari to the United
States Circuit Court of Appeals for the second circuit. The
petitioner, Richardson, brought suit in the District Court of
the United States for the southern district of New York, as
trustee in bankruptcy of J. Francis Brown, against John M.
Shaw and Alexander Davidson, respondents, to recover certain
alleged preferences.
Brown, the bankrupt, was a stockbroker transacting business
in Boston. The respondents, John M. Shaw and Alexander Da-
vidson, were partners and stockbrokers, transacting business in
New York as John M. Shaw & Company, and, as customers of
Brown, they transacted business with him on speculative account
for the purchase and sale of stocks on margin. The account was
carried on in Brown's books in the name of "Royal B. Young,
Attorney," as agent of Shaw & Company.
The transactions between Brown and Shaw & Company were
carried on for several months, from February to June, 1903. A
debit and credit account was opened February 10, when Shaw
& Company deposited with Brown $500 as margin, which was
38 — See Tomlinson v. Bank of
Lexington, 145 Fed. 824.
PREFERENCES 301
credited to them on the account, and Brown purchased for them
certain securities at a cost of $3,987.50, which was charged to
them on the account.
By agreement between the parties it was understood and
agreed that all securities carried on the account or deposited
to secure the same might be carried in Brown's general loans
and might be sold or bought at public or private sale, without
notice, if Brown deemed such sale or purchase necessary for his
protection. On the accounts rendered by Brown the following
memorandum was printed: "It is understood and agreed that
all securities carried in this account or deposited to secure the
same may be carried in our general loans and may be sold or
bought at public or private sale, without notice, when such sale
or purchase is deemed necessary by us for our protection."
Until the account was closed, on June 26, 1903, Shaw & Com-
pany from time to time paid to Brown various other sums of
money as margins, which were credited to them. They also
transferred to him various securities as margins in place of cash.
They were charged with interest upon the gross amount of the
purchase price, and credited with interest upon the margins they
had deposited with Brown. If at any time the total amount
of margins in securities or money exceeded 10 per cent, they had
the right to withdraw the excess. Brown was at no time left
with a margin less than 10 per cent. Shaw & Company kept a
"liberal margin," at times rising to 2Sy2 per cent.
According to the agreement the securities carried in this ac-
count or deposited to secure the same might be carried in
Brown's general loans, and such securities were so pledged by
him, and Young, as agent of Shaw & Company, was informed
of the fact. The stocks were figured at the market price every
day and statements rendered to Young.
The bankrupt. Brown, transacted much of his general busi-
ness with Brown, Riley & Company, of Boston. He pledged his
general securities with that company.
On June 24, 1903, Young, the agent of Shaw & Company, as
above stated, learned of Brown's precarious financial condition,
and demanded payment of $5,000 cash from Brown's agent,
Fletcher. At that time the margins already paid by Shaw &
Company exceeded the agreed 10 per cent, and Fletcher returned
to them $5,000 of such margin.
On the following day, June 25, Young demanded a final set-
tlement from Brown. At that time Brown was insolvent within
302 PREREQUISITES TO ADJUDICATION
the meauing of the bankrupt law, and had been for the two pre-
ceding months. On June 26 the liquidation of this account was
effected as follows: Brown, the bankrupt, indorsed to Brown,
Riley & Company, a note of $5,000, made by one of his debtors,
and gave them a check for $1,200, thereby increasing his margin
on the general loan, and agreed that $10,664.13 should be charged
against his margin and credited to Shaw & Company, and a
cheek was given by them, through the Beacon Trust Company, to
the order of Brown, Riley & Company, for $34,919.62, and the
securities to the value of $45,583.75 were turned over to them.
None of the certificates of stock which Brown delivered to Shaw
& Company were the identical certificates which they had deliv-
ered to Brown as margain. Two certain bonds, known as the
'"Shannon bonds," had been deposited with Brown. ''^
Among the creditors (customers) of Brown on the final day
of settlement there were a number of general customers upon
transactions in purchase and sale of stocks by Brown as broker,
similar to the transactions in the purchase and sale of stocks by
Brown as broker for Shaw & Company.
On July 27, 1903, Brown made an assignment, and was ad-
judicated a bankrupt within four months, and petitioner in this
case, Henry Arnold Richardson, was elected trustee.
It was conceded by plaintiff's counsel that it was the custom
of the market to deliver shares from broker to customer of the
same amount without regard to whether they were the identical
shares received.
This suit was brought to recover the $5,000 paid to Shaw &
Company June 24, 1903, which sum, it is alleged, was paid to
them as excessive margins, and, it is alleged, enabled them to
obtain a preference as one of the creditors of Brown. The second
cause of action in the suit states that Shaw & Company are in-
debted to Brown's estate in the sum of $10,664.13, being the
amount he transferred for their benefit, as above set forth.
At the close of the plaintiff's case he requested to go to the
jury upon the issue of defendant's knowledge of Brown's in-
solvency. The court held that no preference was shown, and
directed a verdict for defendants. The" judgment was afifirmed,
77 C. C. A. 643, 147 Fed. 659, 665.
The ground on which the counsel for the petitioner predicates
the alleged preferences in this case is that when the stockbroker
Brown was approached for the settlement of the transaction with
Shaw & Company, being insolvent and dealing with several eus-
PREFERENCES 303
tomers, as to each of whom he had pledged the stocks carried
for them, and, under the understanding of the parties, being
under obligation to each of them to redeem the stocks from the
loan for which they were pledged, this obligation created a right
of demanding the pledged stocks and securities on the part of
each of the customers, which put the broker in the debtor class
and the customers into the creditor class, so that, if the broker
used his assets to carry out such obligation to a particular cus-
tomer, whereby the latter was able to redeem his stock from such
pledge upon payment only of the amount of his indebtedness to
the broker, with the result that the broker could not carry out
similar obligations to other customers in like situation, a pref-
erence is created under § 60 of the bankrupt act, and this, says
the learned counsel in his brief, under any theory concerning
the relation of broker and customer, is ''the main proposition
upon which we hang our appeal."
This case, therefore, requires an examination of the relations
of customer and broker under the circumstances disclosed in
this record; at least, so far as it is necessary to determine the
question of preference in bankruptcy upon which the case turns.
* * *
The rule thus established by the courts of the state where such
transactions are the most numerous, and which has long been
adopted and generally followed as a settled rule of law, should
not be lightly disturbed, and an examination of the cases and
the principles upon which they rest lead us to the conclusion
that in no just sense can the broker be held to be the owner of
the shares of stock which he purchases and carries for his cus-
tomer. While we recognize that the courts of Massachusetts have
reached a different conclusion, and hold that the broker is the
owner, carrying the shares upon a conditional contract of sale,
and, while entertaining the greatest respect for the supreme judi-
cial court of that state, we cannot accept its conclusion as to
the relation of broker and customer under the circumstances
developed in this case. We say this, recognizing the difficulties
which can be pointed out in the application of either rule.
At the inception of the contract it is the customer who wishes
to purchase stocks, and he procures the broker to buy on his
account. As was said by Mr. Justice Bradley, speaking for the
court in Galigher v. Jones, 129 U. S. 193-198, 32 L. ed. 658, 659,
9 Supt. Ct. Rep. 335, a broker is but an agent, and is bound to
304 PREREQUISITES TO ADJUDICATION
follow the directions of his principal, or give notice that he
declines the agency.
The dividends on the securities belong to the customer. The
customer pays interest upon the purchase price, and is credited
with interest upon the margins deposited. He has the right at
any time to withdraw his excess over 10 per cent deposited as
margin with the broker. Upon settlement of the account he re-
ceives the securities. In this case the broker assumed to pledge
the stocks, not because he was the owner thereof, but because,
by the terms of the contract, printed upon every statement of
account, he obtained the right from the customer to pledge the
securities upon general loans, and in like manner he secured the
privilege of selling when necessary for his protection.
The risk of the venture is entirely upon the customer. He
profits if it succeeds ; he loses if it fails. The broker gets out of
the transaction, when closed in accordance with the understand-
ing of the parties, his commission and interest upon the advances,
and nothing else. That such was the arrangement between the
parties is shown in the testimony of the broker 's agent, who testi-
fied : "If these stocks carried for J. M. Shaw & Company made
a profit, that profit belongs to Shaw & Company over and above
what he owed us."
When Young, the agent of Shaw & Company, demanded the
stocks, their right of ownership in them was recognized, and,
while pledged, they were under the control of the broker, were
promptly redeemed, and turned over to the customer. Con-
sistently with the terms of the contract, as understood by both
parties, the broker could not have declined to thus redeem and
turn over the stock, and, when adjudicated a bankrupt, his
trustee had no better rights, in the absence of fraud or prefer-
ential transfer, than the bankrupt himself. Security Warehous-
ing Co. V. Hand, 206 U. S. 415, 423, 51 L. ed. 1117, 1122, 27
Sup. Ct. Rep. 720 ; Thompson v. Fairbanks, 196 U. S. 516, 526,
49 L. ed. 577, 586, 25 Sup. Ct. Rep. 306 ; Humphrey v. Tatman,
198 U. S. 91, 49 L. ed. 956, 25 Sup. Ct. Rep. 567 ; York Mfg. Co.
V. Cassell, 201 U. S. 344, 352, 50 L. ed. 782, 785, 26 Sup. Ct.
Rep. 481.
It is objected to this view of the relation of customer and
broker that the broker was not obliged to return the very stocks
pledged, but might substitute other certificates for those received
by him, and that this is inconsistent with ownership on the part
of the customer, and shows a proprietary interest of the broker
PREFERENCES 305
in the shares ; but this contention loses sight of the fact that the
certificate of shares of stock is not the property itself, it is but
the evidence of property in the shares. The certificate, as the
term implies, but certifies the ownership of the property and
rights in the corporation represented by the number of shares
named.
A certificate of the same number of shares, although printed
upon different paper and bearing a different number, repre-
sents precisely the same kind and value of property as does
another certificate for a like number of shares of stock in the
same corporation. It is a misconception of the nature of the
certificate to say that a return of a different certificate or the
right to substitute one certificate for another is a material change
in the property right held by the broker for the customer. Hor-
ton V. Morgan, 19 N. Y. 170, 75 Am. Dec. 311 ; Taussig v. Hart,
58 N. Y. 425 ; Skiff v. Stoddard, 63 Conn. 198, 218, 21 L. R. A.
102, 26 Atl. 874, 28 Atl. 104. As was said by the Court of Ap-
peals of New York in Caswell v. Putnam, 120 N. Y. 153, 157,
24 N. E. 287, "one share of stock is not different in kind or value
from every other share of the same issue and company. They
are unlike distinct articles of personal property which differ in
kind and value, such as a horse, wagon, or harness. The stock
has no earmark which distinguishes one share from another, so
as to give it any additional value or importance; like grain of
a uniform quality, one bushel is of the same kind and value as
another. ' '
Nor is the right to repledge inconsistent with ownership of
the stock in the customer. Skiff v. Stoddard, 63 Conn. 216, 219,
21 L. R. A. 102, 26 Atl. 874, 28 Atl. 104; Ogden v. Lathrop, 65
N. Y. 158. It was obtained in the present case by a contract
specifically made, and did not affect the right of the customer,
upon settlement of the accounts, to require of the broker the
redemption of the shares and their return in kind.
It is true that the right to sell, for the broker's protection,
which was not exercised in this case, presents more difficulty, and
is one of the incongruities in the recognition of ownership in
the customer; nevertheless it does not change the essential rela-
tions of the parties, and certainly does not convert the broker
into what he never intended to be and for which he assumes no
risk, and takes no responsibility in the purchase and carrying
of shares of stock.
The broker cannot be converted into an owner without a per-
il. & A. Bankruptcy — 20
306 PREREQUISITES TO ADJUDICATION
vei*sion of the understanding of the parties, as was pertinently
observed in the very able discussion already referred to in Skiff
V. Stoddard, 63 Conn. 216, 21 L. R. A. Ill, 26 Atl. 879: "So
long as the interpretation of the contract preserves as its dis-
tinctive feature the principal proposition that the customer pur-
chases merely the right to have delivery to him in the future,
at his option, of stocks or securities at the price of the day of
the agreement, and its corollary that the customer derives no
right, title, or interest in the stocks or securities until final per-
formance, the difficulties in the way of harmonizing the situation
are bound to exist. The fundamental difficulty grows out of the
necessary attempt in some way to transform the customer, who
enjoys all the incidents and assumes all the risks of ownership,
into a person who in fact has no right, title, or interest, and to
create out of the broker, who enjoys none of the incidents of
ownership, and assumes not a particle of its responsibility, a
person clothed with a full title and an absolute ownership."
We reach the conclusion, therefore, that, although the broker
may not be strictly a pledgee, as understood at common law, he
is essentially a pledgee, and not the owner of the stock, and turn-
ing it over upon demand to the customer does not create the
relation of a preferred creditor, within the meaning of the bank-
rupt law.
We cannot consent to the contention of the learned counsel
for the petitioner, that the insolvency of the broker at once con-
verts every customer having the right to demand pledged stocks,
into a creditor who becomes a preferred creditor when the con-
tract with him is kept and the stocks are redeemed and turned
over to him.
In the absence of fraud or preferential transfer to a creditor
the broker had a right to continue to use his estate for the re-
demption of the pledged stocks. As this court said in Cook v.
TuUis, 18 Wall. 332-340, 21 L. ed. 933-937 :
' ' There is nothing in the bankruptcy act, either in its language
or object, which prevents an insolvent from dealing with his
property, selling or exchanging it for other property at any time
before proceedings in bankruptcy are taken by or against him,
provided such dealings be conducted without any purpose to
defraud or delay his creditors or give preference to anyone, and
does not impair the value of his estate. An insolvent is not
bound, in the >misf ortune of his insolvency, to abandon all deal-
ing with his property ; his creditors can only complain if he waste
PREFERENCES 307
his estate or give preference in its disposition to one over another.
His dealing will stand if it leave his estate in as good plight
and condition as previously."
The bankrupt act, in § 60a, provides : "A person shall be
deemed to have given a preference if, being insolvent, he has,
within four months before the filing of the petition, or after the
filing of the petition and before the adjudication, procured or
suffered a judgment to be entered against himself in favor of
any person, or made a transfer of any of his property, and the
effect of the enforcement of such judgment or transfer will be
to enable any one of his creditors to obtain a greater percentage
of his debt than any other of such creditors of the same class. ' '
A creditor is defined to include anyone who owns a demand
or claim provable in bankruptcy. § 1, sub. 9, Bankruptcy Act
1898 (30 Stat, at L. 544, c. 541, U. S. Comp. Stat. 1901, p.
3419). It is essential, therefore, in order to set aside the alleged
preference, that Shaw & Company, at the time of the transfer,
should have stood in the relation of creditor to the bankrupt.
Of course, if the New York rule based upon Markham v,
Jaudon is correct, and the broker was the pledgee of the cus-
tomer's stock, there can be no question that, in redeeming these
stocks for the purpose of satisfying the pledge, no preferential
transfer under the bankruptcy act resulted.
In our view we think no different result is reached, so far as
a preference in bankruptcy is concerned, if the Massachusetts
cases could be taken to lay down the correct rule of the rela-
tions between broker and customer.
That rule is said to have its origin in Wood v. Hayes, 15 Gray,
375, decided in 1860, in which the opinion, though by Chief
Justice Shaw, is very brief. It was therein held that the broker
was a holder of the shares upon conditional contract to deliver
them to the customer upon the payment of so much money, and
until the money was paid the right to have performance did not
accrue.
In Covell V. Loud, 135 ^lass. 41, 46 Am. Rep. 446, the right
of the broker was considered after the customer had refused to
pay the necessary margin, and after the customer had recpested
the broker to do the l>est he could for him and to sell the stock
at the broker's board without notice, and it was held that under
such circumstances the broker was not liable for conversion.
In Weston v. Jordan, 168 Mass. 401, 47 N. E. 133, the question
was as to the relation between customer and broker after the
308 PREREQUISITES TO ADJUDICATION
broker had parted with the shares after repeated demands by the
customer and refusal by the broker to deliver the shares, and
it was held that a valid cause of action arose in favor of the
customer, whether for breach of contract, or for conversion, it
matters not.
In Chase v. Boston, 180 Mass. 459, 62 N. E. 1059, the opinion
is by Chief Justice Holmes, and the question directly decided
is whether a broker who held shares of stock in his own name,
and which he carried for his customer on margin, was required
to pay a city tax upon the value. It was held that he was. In
that case the learned justice said :
"No doubt, whichever view be taken, there will be anomalies,
and no doubt it is possible to read into either a sufficient number
of implied understandings to make it consistent with itself. Pur-
chases on margin certainly retain some of the characteristics of
ordinary single purchases by an agent, out of which they grew.
The broker buys and is expected to buy stock from third persons
to the amount of the order. Rothschild v. Brookman, 5 Bligh,
N. R. 165, 2 Dow & C. 188 ; Taussig v. Hart, 58 N. Y. 425. He
charges his customer a commission. He credits him with divi-
dends and charges him with assessments on stock. However the
transaction is closed, the profit or loss is the customer's. But
none of these features is decisive."
And while the rule dating back to the decision of Chief Justice
Shaw in 15 Gray was recognized as the law of Massachusetts,
there is nothing in the case decisive of the question now before us.
The case most relied upon as showing the preference is Weston
V. Jordan, supra. It was held in that case that Wheatland, the
broker (Weston was his assignee in insolvency) had become a
debtor to the customer Jordan, having parted with the control of
the shares and substituting none others for them after repeated
demands for them by the customer. And it was held that when
the insolvent broker went into the street and bought that kind of
stocks with his own money, and the customer took the stocks,
knowing of such purchase, the transaction amounted to a pref-
erence; and in course of the discussion Mr. Justice Allien,
referring to the contention of counsel that the Massachusetts rule
should be reconsidered in view of the rules adopted in New York
and other states, said:
"The defendant seeks to have these decisions reconsidered;
but the facts of the present case do not call for such reconsid-
eration of the general doctrine. Even if at the outset Jordan
PREFERENCES 309
were to be deemed a pledgor, and Wheatland a pledgee, of the
shares, that relation was changed by what happened after-
wards. * * * After Wheatland had parted with the control
of the shares, and after repeated demcmds for them hy Jordan,
and refusals by Wheatland ta deliver them, Jorda/n had a valid
ground of action against Wheatland, either for breach of (xm-
tract or for a conversion; it matters not which."
The facts in the present case are entirely different from those
disclosed in the case just cited. In the present case there was
no demand for the return of the stocks which was refused by
the broker ; but, recognizing the obligation of the contract, when
the stocks were demanded the broker proceeded to redeem them
from the pledge which he had made of them under the right
given by the contract between the parties, and turned them over
to the customer. In such case the relation of debtor and creditor
did not arise as it might upon the refusal, as in Weston v.
Jordan, to turn over the stocks upon demand.
After an examination of the Massachusetts cases, Judge Lowell
held In re Swift, 105 Fed. 493, while following the Massachu-
setts rule as between broker and customer, that no cause of action
arose until after demand by the customer. And the same view
was taken in the same case upon review in the Court of Appeals
for the first circuit in an opinion by Judge Putnam, 50 C. C. A.
264, 112 Fed. 315. While both courts held that under the law,
as defined in the Massachusetts cases, bankruptcy excused de-
mand, they held that the customer did not become a creditor
upon insolvency, but only after demand and refusal or its
equivalent.
How then stood the parties at the time of the demand for
the return of these shares of stock? They were held upon a
contract, which required the broker, upon demand, to turn over
the shares purchased, or similar shares, to the customer upon
payment of advancements, interest, and commissions. These
stocks were redeemed and turned over to him ; as a consequence
the relation of debtor and creditor as between the broker and
customer did not arise.
Upon the principles heretofore discussed, we think the pay-
ment of the $5,000, on June 24, was not a preferential payment
to a creditor! The customerhad demanded settlement, the
broker had paid^the $5,000, and on the following day this sura
was taken into account in settling the account before turning over
310 PREREQUISITES TO ADJUDICATION
to the customer the stock belonging to him, according to the
understanding of the parties.
We find no error in the judgment of the Court of Appeals,
and the same is affirmed.^ ^
Mr. Justice HOLMES :
If I had been left to decide tliis case alone I should have
adhered to the opinion which, upon authority and conviction,
I helped to enforce in another place. I have submitted a mem-
orandum of the reasons that prevailed in my mind to my breth-
ren, and, as it has not convinced them, I presume that I am
wrong. I suppose that it is possible to say that, after a purchase
of stock is announced to a customer, he becomes an equitable
tenant in common of all the stock of that kind in the broker's
hands; that the broker's powers of disposition, extensive as they
are, are subject to the duty to keep stock enough on hand to
satisfy his customers' claims; and that the nature of the stock
identifies the fund as fully as a grain elevator identifies the grain
for which receipts are out. It would seem to follow that the
customer would have a right to demand his stock of the trustee
himself, as well as to receive it from tlie bankrupt, on paying
whatever remained to be paid. A just deference to the views of
my brethren prevents my dissenting from the conclusion reached,
although I cannot but feel a lingering doubt.
-rr'
^ih^^ jt^ CLARKE V. ROGERS
228 U. S. 534, 57 L. ed. 953, 33 Sup. Ct. 587
(United States Supreme Court. May 5, 1913)
Mr, Justice McKENNA delivered the opinion of the court:
Petition by appellee as trustee in bankruptcy of the estate of
John 0. Shaw to recover a preference.
The facts are these : The bankrupt, John O. Shaw, was, for
a long time prior to the adjudication in bankruptcy, trustee
under the will of Samuel Parsons, late of Newton, in the county
of Middlesex, Massachusetts, of two trusts; one for the benefit
of Charles A., James H., and Henry B. Parsons, and the other
for the benefit of E. F. and E. A. Parsons.
39— See Sexton v. Kessler, 225 kiss, 231 U. S. 50; In re Hollins &
U, S. 90; Gorman v. Littlefield, 229 Co., 212 Fed. 317; Sharp t. Simo-
U. S. 19; Nat. City Bank v. Hotch- nitseh, 107 Minn. 133.
PREFERENCES 311
After proceedings in bankruptcy had been commenced, Shaw
resigned the trusts, and his resignation was accepted by the
Probate Court of Middlesex county on the 25th of March, 1908,
and appellant, George Lemist Clarke, was appointed trustee of
the trusts and duly qualified.
In the month of January, 1908, and within four months before "\
the filing of the petition in bankruptcy against him, and whilst
he was insolvent, Shaw was largely indebted to each of the trusts »
and to himself as trustee, and transferred from himself individu- 1 i
ally to the trusts and to himself as trustee thereof as follows • '
To the trust for C. A. Parsons et al., seven of the $1,000 col-
lateral trust 4 per cent bonds of the American Telephone & Tele-1
graph Company (numbers specified) and two $1,000 Chicago,
Burlington & Quincy Railroad Company 31/^ per cent Illinois
Division (numbers specified) : to the trust of E. F. and E, A.
Parsons, twelve $1,000 Northern Pacific-Great Northern 4 per
cent joint bonds, Chicago, Burlington & Quincy collateral.
The transfers were made by Shaw with knowledge of his
insolvency, and with intent to prefer the trusts and himself as
trustee, and the effect (it is alleged) of such preference, if not
avoided, will be to enable the trust estates and himself as trustee
thereof (being one of his individual creditors) to obtain a greater
percentage of his debts than any other of his creditors of the
same class.
The petition prayed that the bonds be declared to be the bonds
of petitioner, appellee here, and that Clarke, appellant here, be
ordered to execute such instruments as might be necessary to
transfer the title to and possession of all the bonds to petitioner.
The answer of appellant denied only that the transfers were
made within four months of the bankruptcy, that Shaw was, at
the time of the transfer, insolvent, that all the trusts were his
creditoi*s then or have becom.e so since, within the meaning of
the statute, and denies that he intended by the transfers to give
a preference, or that they constitute a preference.
The decree of the district judge was that five of the seven
Telephone and twelve of the Northern Pacific-Great Northern
Railroad Company 4 per cent joint bonds, and all of the cou-
pons thereon payable after January, 1908, were the property
of the trustee in bankruptcy, appellee here.
It was further adjudged that the American Telephone & Tele-
graph Company collateral trust 4 per cent bonds (numbered
20,818 and 20,819) were in part the property of the appellant
312 PREREQUISITES TO ADJUDICATION
as trustee and of appellee as trustee. The bonds were directed
to be sold. The decree was affirmed by the Circuit Court of
Appeals. [183 Fed. 518, 106 C. C. A. 64.]
The District Court found the facts. They are summarized in
its opinion as follows:
''The bankrupt, being insolvent, and knowing himself to be
'insolvent, was discovered by the surety on his bond as trustee
under the Parsons wiU, not to be in possession of some of
the securities which formed a part of the trust estate, and which
should have been in his possession as trustee. He was being
urged by the surety to make good this shortage. For the pur-
pose of doing so, he placed the bonds in question in a safe-deposit
box, taken and agreed on by himself and the surety as a separate
place of deposit for the securities belonging to this trust. In
the box were placed also those securities belonging to the trust
funds which had not gone out of his possession. All the securi-
ties thus placed in the box and held as constituting the trust
funds have since remained there. The bankrupt has been re-
moved as trustee, and the respondent, his successor in the trust,
has at present the possession and control of the contents of
the box, including the bonds in question.
"The bankrupt had at the time more than twenty-five other
trust estates in his charge as trustee. There was, in the case of
each, a shortage for which he was responsible, and he knew the
fact to be so. The total amount of these shortages exceeded
$350,000.
"It has not been shown that any of the bonds used as above
to make good the shortage in the Parsons trust estate, or that
any of the money wherewith the bankrupt purchased those
bonds, can be identified as belonging to any one of the other
trust estates in the bankrupt's charge. He drew 0]it and used
to purchase certain of the bonds a savings bank deposit of $1,500
belonging to one of the Parsons trust funds; but with that ex-
ception the money wherewith the bonds were bought as well as
the bonds themselves must, for the purposes of the questions to
be decided, be regarded as the bankrupt's individual property
ftt the time he set them apart in the manner stated, to be there-
after held as trust property."
The question in the case is. Do these facts show a preference
within the meaning of the Bankruptcy Law?
Putting to one side the identity of Shaw as an individual and
Shaw as the trustee of the trusts, there are the elements of a
PREFERENCES 313
preference. In other words, there is indebtedness ; Shaw is in- /
debted to all of the estates of which he was trustee. He used I
his individual property to pay the indebtedness to the Parsons l
trust, and he thus gave that trust a preference over the others. •
It was enabled to the extent of the property transferred to obtain
a greater percentage of its debts than the other trusts. What,
then, stands in the way of setting the transfer aside ? The debt";
was n2t-a_provable one in bankruptcy, it is contended, and on
that contention the case is rested, and to it we ma^~3irect our \
considerations, and in that the provisions of the statute become J
necessary elements.
Section 60a, as amended, is as follows:
**A person shall be deemed to have given a preference, if,
being insolvent, he has, within four months before the filing of
the petition, * * * made a transfer of any of his property,
and the effect of the enforcement of such * • * transfer
will be to enable any one of his creditors to obtain a greater
percentage of his debt than any other of such creditors of the
same class."
A creditor is defined to be "anyone who owns a demand or
claim provable in bankruptcy [and] may include his duly au-
thorized agent, attorney, or proxy."
Debt includes any debt, demand, or claim provable in bank- 1
ruptcy. Transfer includes the sale and every other and differ- /
ent mode of disposing of or parting with property, or the pos-
session of property, absolutely or conditionally, as a payment, \
pledge, mortgage, gift, or security. '
Appellant deduces from these definitions that no question of
a preference can arise except when the transfer is made to the
owner of a provable claim, or to his agent, and that no claim is
provable except when enumerated in § 63a, and none other can
be liquidated under paragraph b. Of the claims enumerated in
§ 63a, the fourth is the only one with which we are concerned.
It is as follows: " (4) Founded on an open account, or upon a
contract, express or implied. ' ' The final contention of appellant
is that one, to receive a preference, must be a creditor of the
bankrupt upon a contract, express or implied. It is not enough
that there be some kind of legal or equitable claim against the
bankrupt. These postulates laid down, he builds upon them an
argument of great technicality to show that the trusts of Shaw
were not his creditors, and therefore could not receive from him
a preference. An obligation to the trusts is not denied, but it is
314 PREREQUISITES TO ADJUDICATION
ail obligation, it is asserted, which was represented entirely by
his bond, and had no remedy but by a suit on the bond. The
liability of Shaw, it is further contended, considered inde-
pendently of the bond, was in the nature of a pure tort liability
which could not be waived and the remedies of a contract
availed of.
That some torts may be waived and be the bases of provable
I claims is decided in Crawford v. Burke, 195 U. S. 176, 187, 49
L. ed. 147, 151, 25 Sup. Ct. Rep. 9. Crawford and one Valentine
were stockbrokers and dealers in investments. They had in their
possession certain shares of stock which they held as a pledge
and security for the amount due them by Burke on the stock.
They sold Burke's reversionary interest in the stock, whereby
it was wholly lost. He sued them in trover. They set up their
discharge in bankruptcy. It was held, the court speaking
through Mr. Justice Brown, to be clear that the debt of Burke
was embraced within the provisions of paragraph a, as one
"founded upon an open account, or upon contract, express or
implied," and might have been proven had he chosen to AKaije
thetortand take his place with other creditors of the estate.
Thedischarge in bankruptcy was held on other provisions of
the act to be a defense. The case was applied and followed
in Tindle v. Birkett, 205 U. S. 183, 186, 51 L. ed. 762, 764, 27
Sup. Ct. Rep. 493, in an action to recover damages claimed to
have been sustained by false and fraudulent representations.
I It was decided that the claim was one provable under § 63a as
' ' * founded upon an open account or upon a contract, express or
implied." It is, however, said that these cases are explained
and limited in Frederic L. Grant Shoe Co. v. W. M. Laird Co.,
212 U. S. 445, 53 L. ed. 591, 29 Sup. Ct. Rep. 332, to instances
"where there is a claim arising out of a contract, but of such a
nature that there is at the same time an independent remedy in
tort." To make this distinction available, appellant must es-
tablish his contention that there was no contractual relation,
either between Shaw and his trusts or the cestuis que trust of
the trusts ; in other words, that the sole liability was upon Shaw's
bond. There is no other remedy, is the repeated insistence, and
that only after a final accounting has been had in the Probate
Court, showing a liquidated balance due from the accountant.
Then, and not until then, as we understand appellant, a creditor
emerges with a provable claim. Appellant, however, halts some-
what at the logic of his argument, and ventures to say that a
PREFERENCES * 315
decision in his favor does not necessarily involve a decision that
a claim upon the bond of the defaulting trustee could not be
proved for a dividend in the name of the probate judge. But is
not this concession in opposition to the relation asserted to exist
between a provable debt and a transfer of property on account
of it being a preference?
We have considered the contentions of appellant somewhat
minutely, so as to fully present them. The lower courts, while
giving attention to the technical elements of appellant's argu-
ments, cut through them to apply the fundamental purpose of
the Bankruptcy Law; that is, equality between creditors. The
District Court, following Bush v. Moore, 133 Mass. 198, decided
in 1882 under a provision of the Massachusetts insolvency law
which w^as similar to the provision in the Bankruptcy Act of the
United States, found no difficulty in the same person, considered
in different capacities, acting as giver and receiver of a fraudu-
lent preference. The Court of Appeals met the contention of
appellant that there must be a contractual relation, and decided
that it existed, both on account of the bond and independently
of the bond. The court said : " It is true that, in the ordinary
course, enforcing the bond would be at the end of the proceed-
ings, and not at the beginning. Notwithstanding, as the equita-
ble rules which govern bankrupts always look to the end, and
disregard the intervening details as only steps to reach the end,
there was in this case a contract from the beginning, — that is,
the bond, — which was capable of liquidation on the rules ex-
plained in Tindle v. Birkett, 205 U. S. 183, 51 L. ed. 762, 27
Sup. Ct. Rep. 493. * * * Aside from this and independently
of the bond, we believe there is an obligation resting on a de- \
faulting testamentary trustee to restore the value of the assets \
embezzled, which is of contractual character." '
But this, appellant contends, is to evolve 'jtwo moral persons
out of one embezzler." The criticism only can be made by put-
ting out of view wliat the "one embezzler" represents. He is
one being, but acts in more than one capacity, and in all of his
capacities he has duties and obligations. The relation of a trustee
to the trust property is not the same as his relation to his in-
dividual property. He certainly may incur obligations to the
trust. He can only satisfy the obligations out of his individual
property, and by doing so may deplete it, make it deficient, to
satisfy its obligations. These are realities, not fictions. We must
overlook essential things to disregard them, and hence the de-
316 PREREQUISITES TO ADJUDICATION
cision in Bush v. Moore, supra. Moore was the guardian of his
son, and wrongfully appropriated to his own use the moneys of
his ward. Within six months preceding his insolvency, and
being insolvent, intending to restore the funds he had appro-
priated, he deposited in the defendant bank the necessary sum
derived from his private property. His assignees in insolvency
sued in equity to recover the sum as a preference, alleging that
he at the time was insolvent, and acted in contemplation of in-
solvency. The Massachusetts statute made void any payment or
conveyance of property by an insolvent "to any creditor or
person having a claim against him" and gave power to the
assignee to recover the property.
These contentions were made: (1) The ward was not a
creditor of the guardian or a person having a claim against him.
(2) The act of the guardian did not constitute a preference which
was avoidable by reason of his insolvency. (3) Had the mis-
appropriation continued, there would have been no claim by
the ward which could have been the foundation of a suit.
(4) His remedy was to summons the guardian into the Probate
Court, and then, upon adjudication there, or if he failed to
account, there would have been only the remedy for failure to
account or to comply with the decree of the court.
The contentions, it will be observed, were like those made in
the case at bar. They were all rejected. It was held that the
title to the property continued in the ward, the guardian having
its custody only, and, he having wrongfully used it, there was a
just claim on the part of the ward that the integrity of the fund
should be restored. The court said : ' ' The title to the property
of one under guardianship continues always in the ward; the
guardian has its custody merely. If, availing himself of that
custody, he wrongfully uses it, there is a just claim on the part
of the ward that the integrity of the fund shall be restored. It
is not important in what form the ward is compelled to seek
his remedy, or that the wrongful act of the guardian will not
immediately afford a ground of action aigainst him. Even if,
upon a settlement in the Probate Court, it might have been held
that the lawful and proper charges of the guardian would ex-
ceed the amount of his spoliations, there was not the less a just
claim that the ward's property which had been unlawfully dealt
with should be replaced."
To the contention that two persons were necessary to consum-
mate a preference, one to transfer and the other to receive the
PREFERENCES 317
property, the court answered: ''But where the same person
acts as the giver and receiver of the security, the concurrence
and participation of two parties to the fraudulent preference
exists. * * * One individual acting in two capacities, as
debtor and on behalf of the creditor, may constitute the two per-
sons contemplated by the statute. ' ' And, supplying the element
of knowledge of the insolvency and the preference required by
the statute, the court said that the ward was bound by the knowl-
edge of his guardian.
The case is certainly determinative of appellant's contention
that accounting in the Probate Court was necessary as a condi-
tion to a provable claim, or that a suit on a bond was the only
remedy available for the misappropriation of the funds by a
guardian. This applies as well to a trustee ; and that there may
be a contractual obligation of one trust to another under the
laws of Massachusetts is decided in Bremer v. Williams, 210
Mass. 256, 96 N. E. 687. In that case a person who was the sole
trustee of two separate estates paid the taxes due from one of
them with money embezzled from the other. It was held that
the new trustee of the latter could maintain suit in equity to
recover from another unjustly enriched by the embezzlement.
The liability of the lafter to the former, the court said, grew out
of an implied or constructive obligation, and did not rest upon
an express trust: and, being such, the statute of limitations
would be a bar in equity as well as in law. In other words, the
court recognized that from the misuse of the funds the law would
imply an ohligfation to repay. This ruling brings the case at
bar within Crawford v. Burke and Tindle v. Birkett, even if
their application be as limited as appellant contends. It may
be questioned if they are so limited. They recognize the rela-
tion of § 63a to § 17. § 17 excludes certain debts from discharge ;
among others, those created by the bankrupt's "fraud, em-
bezzlement, misappropriation, or defalcation while acting as an
officer or in any fiduciary capacity. ' ' It was said in Crawford v.
Burke: "If no fraud could be made the basis of a provable
debt, why were certain frauds excepted from the operation of
the discharge?" The question was pertinent in view of the lan-
guage of the section. It provides that "a discharge in bank-
ruptcy shall release a bankrupt from all of his provable debts,
except such as," etc. The relation of the section was also recog-
nized in Friend v. Talcott, 228 U. S. 27, 57 L. ed, 718, 33 Sup.
Ct, Rep. 505. It is there declared that § 17 enumerates the
"iUN
318 PREREQUISITES TO ADJUDICATION
debts provable under § 68a which are not discharged. Aiiioug
them, we have seen, are those created by fraud, embezzlement,
misappropriation, or defalcation in any fiduciary capacity. It
would seem, therefore, to follow that the conversion of trust
funds creates a liability provable in bankruptcy.
The Court of Appeals expressed the hardship of a contrary
conclusion. "Moreover," the court said, "it will be a great
hardship if the various estates of which Shaw was trustee can-
not recover any part of their loss of about $350,000 by sliaring
in his bankrupt estate. This might, of course, in this instance,
be but a very small dividend ; but in another instance it might
be very near the face of the default. Any construction which
would leave such a result as that cannot, of course, be accepted
unless fairly forced upon us." [106 C. C. A. 69, 183 Fed. 523.]
In this, we think, the court was right. Equality between credit-
ors is necessarily the ultimate aim of the Bankrupt Law, and to
obtain it we must regard the essential nature of transactions,
not their forms or accidents. As we have said, there may be
an unity of the person in the individual and the trustee, of the
individual and the guardian; we must look beyond it to the
difference in his capacities and the duties and obligations result-
ing from it. These duties and obligations are as distinct and
insistent as though exercised by different individuals, and have
the same legal consequences. The unity of the person h£is, of
course, an effect. It constitutes such relationship between the
different capacities exercised as to impute knowledge of their
exercise and for what purpose exercised. Bush v. Moore, 133
Mass. 198 ; Atlantic Cotton Mills v. Indian Orchard Mills, 147
Mass. 282, 9 Am. St. Rep. 698, 17 N. E. 496 ; Rogers v. Palmer,
102 U. S. 263, 26 L. ed. 164; Atlantic Bank v. Merchants' Bank,
10 Gray, 532, cited in United States v. State Nat. Bank, 96 U. S.
30, 36, 24 L. ed. 647, 648.
Decree affirmed.
Mr. Justice HOLMES concurs in the result.
IN RE BANKS
207 Fed. 662
^(District Court, N. D. New York. September 15, 1913)
RAY, D, J. The referee has allowed the claim of John
Quencer at the sum of $792.03 and the claim of Philip Quencer
at the sum of $701.26. The allowance of these claims is chal-
d
^ ' yl , rt ^ 't^^Jt-t^t^^uL^^tJL^ f .Lx^ CLv.
PREFERENCES 319
lenged on the ground that they were barred by the six years'
statute of limitations at the time the petition in bankruptcy was
filed, and that the bar of the statute had not been removed by
part payment or by an acknowledgment of the debt in writing, as
provided by § 395 of the Code of Civil Procedure of the state of
New York, which provides that :
' ' An acknowledgment or promise contained in a writing, signed
by the party to be charged thereby, is the only competent evi-
dence of a new or continuing contract, whereby to take a case
out of the operation of this title. But this section does not alter
the effect of a payment of principal or interest."
On the 7th day of September, 1912, the bankrupt, Ira 0.
Banks, signed and verified his petition and schedules in voluntary
bankruptcy, which were filed September 12, 1912, and adjudi-
cation made. In the schedules of debts owing the bankrupt
listed, "Philip Quencer, WatertOAvn, N. Y., note, $250," and
''John Quencer, Perch River, N. Y., note, $250," and no men-
tion was made therein of any other debt owing them or either
of them or of the consideration for the note, if there was one.
After the trustee was appointed and qualified, and September
25, 1912, Philip Quencer filed his verified claim for :
71 tons of hay at $9.50 $674.50
September, 1904, by cash 200.00
$474.50
Interest for 8 years 227.76
$702.26
1912. Received 1.00
Balance due $701.26
October 14, 1912, John Quencer filed his claim with the referee
for:
66 tons of hay at $11 $726.00
Interest to April 1, 1905 xj.i. ,, 23.23
$749.23
April 1, 1905, cash 200.00
$549.23
320 PREREQUISITES TO ADJUDICATION
Interest to September 1, 1912 244.40
$793.68
September, 1912, cash 1.00
$792.63
— ^with interest from September 1, 1912.
In the verified claims filed there is no mention of or reference
to a note or notes. The claims state : ^
"That the consideration of said debt is as folllows: 'Goods,
wares and merchandise sold and delivered to the said bankrupt
at his special instance and request. ' * * * Nor has any note
or other evidence of said debt been received except as herein
stated. ' '
As stated no note is mentioned in the claim. The total of all
claims of other creditors proved is $721.69.
As to the claim of Philip Quencer it is asserted that on the
10th or 11th of September, 1912, some five days after the petition
was verified and one or two days before it was filed. Banks paid
to Quencer the sum of $1 and stated to him that he wanted to
pay him the dollar to renew the debt. As to the claim of John
Quencer, it is asserted that on the 10th or 11th day of Septem-
ber, 1912, Banks paid to him the sum of $1 and stated that he
paid it to him for the purpose of renewing the debt. What debt
was not mentioned.
It is, of course, true that until a bankrupt files his petition in
bankruptcy, he is the owner of all his property and may sell or
incumber it, except in fraud of creditors or in violation of some
provision of law, as he sees fit. Even after the petition is filed
and down to the time of the adjudication, the title remains in
the bankrupt, but during that time he holds in a sort of trust
capacity for creditors.
A debtor as a general rule may at any time acknowledge a
debt against which the statute of limitations has run and renew
same by a promise in writing which identifies the debt or by a
partial payment of the specific debt. A recognition of the debt
by a part payment thereof operates as a new promise to pay the
remainder. If, as against the trustee and the creditors, this
renewal of the debt cannot be effected by an acknowledgment of
the debt made in the schedules and filed with the petition, still
if the acknowledgment in writing is made before the petition is
filed or a part payment of the specific debt is made before the
PREFERENCES 321
filing of the petition, in the absence of fraud on the law or col-
lusion, I see no reason why the transaction is not valid, unless
made under such circumstances as to amoimt to a preference.
If within four months of filing a petition the debtor makes a
payment on an outlawed debt intending at the time to go into
bankruptcy knowing his insolvency, and the person receiving
the payment knows^^fijosolvency and has reasonable cause~fo^
belie Yg that a preference is intended, i^3'6^td^^tjt»e7such a pay:^
ment as would renew the debt. The transaction would be in.
fraud of the Bankruptcy_Act. The transaction could be repu-
diated by the trustee and the payment recovered.
By § 60a of the Bankruptcy Act, as amended, it is provided
that:
' ' A person shall be deemed to have given a preference if, being
insolvent, he has, within four months before the filing of the
petition * * * or made a transfer of any of his property,
and the effect of the enforcement of such * * * transfer
wiU be to enable any one of his creditors to obtain a greater
percentage of his debt than any other of such creditors of the
same class."
And § 60b provides that :
" If a bankrupt shall * * * have made a transfer of any
of his property, and if, at the time of the transfer, * * *
the bankrupt be insolvent and * * * the transfer then
operates as a preference, and the person receiving it or to be
benefited thereby, or his agent acting therein, shall then have
reasonable cause to believe that the enforcement of such * * *
transfer would effect a preference, it shall be voidable by the
trustee and he may recover the property or its value from such
person, ' '
§ 57g of the act provides that :
**The claims of creditors who have received preferences, void-
able under § 60, subdivision b, * * * shall not be allowed
unless such creditors shall surrender such preferences, convey-
ances, transfers, assignments, or incumbrances."
If, then, the payment to renew a debt be made on the eve of
bankruptcy (that is, the filing of a petition) and be made under
such circumstances and with such knowledge as to constitute the
giving and receipt of a preference, the claim cannot be allowed
unless the preference is surrendered. The amount of the pay-
ment is immaterial. If the payment is recovered (that is, was
H. & A. Bankruptcy — 21
322 PREREQUISITES TO ADJUDICATION
in fraud of the law), then how can it operate to renew the debt?
It leaves the whole matter as if no payment had been made.
It is plain that Banks knew his insolvency and intended to
prefer both John and Philip Queneer. "What knowledge did
they have? So far as appears, these claimants had not taken
any proceedings to collect or reduce their claims to judgment,
except one of them says he had spoken of the debt, we may
infer, when he met Banks. All deny that the claimants had any
knowledge of the contemplated bankruptcy proceedings prior to
the filing of the petition. All fail to remember anything that
was said at the time the $1 payments were made, except the
statement of Banks that he wanted to pay the $1 to renew the
debt.
The alleged renewal of the debts by listing claims in the
schedules, "creditors whose claims are unsecured, * * *
Philip Queneer, Watertown, N. Y., note, $250; John Queneer,
Perch River, N. Y., note, $250" — cannot be held to renew these
claims on accounts two years outlawed when it appears that no
note whatever was given. It appears in such case that the debtor
had notes in mind, not an account for goods, wares, and mer-
chandise sold and delivered. If he intended to renew a note, he
certainly did not intend to renew an account for hay for which
no note had been given.
"The general rule is that a new promise, whether made before
or after the bar is complete, will avoid the operation of the
statute of limitations." 25 Cyc. 1328; Winchell v. Hicks, 18
N. Y. 558 ; Esselstyn v. Weeks, 12 N. Y. 635 ; Wright v. Par-
menter, 23 Misc. Rep. 629, 52 N. Y. Supp. 99.
See the many cases cited in note, 25 Cyc. 1328.
"The general rule is that an acknowledgment or promise to
pay, in order to take the debt out of the statute, must satisfac-
torily and certainly appear to refer to the very debt in ques-
tion." Stafford v. Bryan, 3 Wend. (N. Y.) 532; Clark v.
Dutcher, 9 Cow. (N. Y.) 674; 25 Cyc. 1330, and cases there cited.
In re Currier (D. C.) 27 Am. Bankr. Rep. 597, 601, 602, 192
Fed. 695, the bankrupt filed his voluntary petition in bankruptcy
not knowing that he had sufl6.eient property to pay all his debts
when in fact he did have. He scheduled the valid existing
claims against him and included and scheduled an outlawed
claim. This was duly approved and allowed. Later the bank-
rupt discovered that he had property more than sufficient to pay
all his debts, and he (the bankrupt) then moved to expunge the
PREFERENCES 323
scheduled outlawed claim and that it be disallowed. No creditor
objected or had objected to the proof and allowance of that
claim, nor did the trustee in their behalf. This court discussed
the whole situation, but all that it decided was that under such
circumstances the bankrupt himself, and wholly in his own
interest and in order to secure for himself the balance of his
own estate after paying the claims which were not outlawed prior
to maMng his schedules, could not allege that a claim which he
scheduled as valid and subsisting was outlawed and barred by
the statute ; and that under the circumstances the creditor whose
claim was barred when the petition was filed could share in dis-
tribution only after the others were paid in full.
Here creditors are objecting through the trustee who repre-
sents them. Here the question of the effect of a partial pay-
ment on an outlawed claim on the eve of filing a voluntary peti-
tion in bankruptcy as between creditors, those whose claims were
and those whose claims were not barred by the statute of limi-
tations at that time, is in question. In re Currier the question
was between a solvent but alleged bankrupt in his own interest
and his creditors.
There are very substantial reasons why an insolvent person I
on the eve of going into voluntary bankruptcy should not be
permitted, as against his creditors whose claims are not barred
by the statute of limitations, to renew by a small partial pay-
m^ent thereon those claims which are barred by the statute.
Creditors whose claims are barred by the statute usually do not
seek to enforce them by suit and judgment as they feel assured
the debtor will plead the statute. If, then, a person who has
been out of business seven or eight or more years, and who has
no judgments against him and no claims against him which have
accrued due within six years but does owe debts to a large
amount barred by the statute, starts in business and obtains
credit and purchases and has in possession a large amount of
property recently purchased on credit, but finds himself unable
to meet his obligations, he may make a small payment on each
of his outlawed debts and then go into bankruptcy and both
ancient and modem creditors, so to speak, will share in the dis-
tribution of the proceeds of such recently acquired property.
This would operate as a fraud on his creditors whose claims were
not barred by the statute. Still if there was no collusion and
no reasonable cause on the part of the creditors receiving the
payments to believe that a preference was intended, and the
324 PREREQUISITES TO ADJUDICATION
defense of the statute is personal to the creditor until after a
petition is filed, how can the court hold that such renewal by
part payment is forbidden by any law ? § 67e of the bankruptcy
act provides that :
**A11 * * * transfers * * * of his property or any
part thereof made, or given by a person adjudged a bankrupt
under the provisions of this act subsequent to the passage of this
act and within four months prior to the filing of the petition
with the intent and purpose on his part to hinder, delay, or
defraud his creditors, or any of them, shall be null and void as
against the creditors of such debtor, except," etc.
And the property so transferred remains a part of the bank-
rupt's estate. It would seem, not from direct evidence but from
some statement or question asked, that some person had obtained
a judgment against Banks, and we may infer that this was the
reason of his going into bankruptcy. This is surmise, however.
Assume this to be the case, we further infer that Banks made
up his mind that all his creditors should share in his estate, those
whose claims were barred by the statute and those whose claims
were not so barred, and hence he made the payments referred
to after the execution of, but before filing, his petition. Assume
this to have been his purpose, was the transfer of the $1 on the
occasion in question one ' ' with the intent and purpose on his part
(Banks) to hinder, delay, or defraud his creditors or any of
them ? " I am not prepared so to hold. So far as this court is
informed, it has not been held that a payment made on account
or on a note for the express purpose of renewing an outlawed
claim of itself is or operates as a fraud on creditors within the
meaning of the statute.
Suppose we take the position that the payment of the $1 on
each of these claims, after the petition was verified but before it
was filed, was the creation of new debts or obligations, and I
am not able to find any law which wiU prevent their proof and
allowance. The status of the claim must be determined as it
existed at the time the petition was filed. Suppose the parties
had figured up the accounts and Banks had given promissory
notes intermediate the verification of the petition in bankruptcy
and its filing, would or would not the claim be provable ? I am
of the opinion that Banks, as against his other creditors, in the
absence of fraud and collusion, had the right to renew these
claims at any time before he filed his petition. It does not ap-
pear that the Quencers, or either of them, knew Banks was
PREFERENCES 325
insolvent. It seems to me that the law has not prohibited the
renewal of outlawed claims under such circumstances.
It is contended that there is nothing to show that the bank-
rupt intended to pay anything on an account or debt due for
hay sold and delivered, but that the evidence discloses an intent
to make a payment on a promissory note. A few days before
the payments were made, the bankrupt made up his schedules
of indebtedness which were attached to and formed a part of his
petition in bankruptcy. Here he stated that he owed to John
Quencer a note of $250 and to Philip Quencer a note of $250 ;
that is, debts evidenced by such notes. The consideration of
these notes is not mentioned in the schedules. It is evident that
Banks at that time had in mind claims against himself in favor
of the Quencers evidenced by notes, $250 to each. The date of
the notes was not given. So far as appears, this was his state of
mind and these the debts he had in mind when he went to the
Quencers on the occasions mentioned. There was no conversa-
tion as to any indebtedness except Banks handed to each $1 and
said he wanted to pay or paid the dollar to renew the debt. In
fact, so far as the proof goes, no note had been given to one of
the Quencers, but a note of $400 had been given to the other
which he had handed back, under what conditions and for what
reason does not appear. In fact, as the referee finds. Banks
owed a balance to each of the Quencers for hay sold and de-
livered and nothing else; the claim, however, being barred by
the statute. The contention is, nothing having been said regard-
ing the nature or character of the debt, that Banks had notes in
mind and intended to make a payment on notes and not on an
account or claims for hay sold and delivered. But if there was
only one claim or debt, and that for hay, is it material that
Banks supposed he had given a note for the debt when in fact
he had not ? It is only material that a specific indebtedness was
recognized and a payment made to apply on it as a partial pay-
ment of a greater indebtedness. If it was stated that the dollar
was paid to renew the debt, a larger debt than $1, and there
was but one debt, here is a plain recognition of a larger sum
due than the amount paid and an implied promise to pay the
remainder. If the debt was for hay, is it material that it was
not evidenced by a promissory note as Banks supposed? On
this subject see Crow v. Gleason, 141 N. Y. 489, 493, 494, 36 N.
E. 497. This case is cited and approved Brooklyn Bank v.
Barnaby, 197 N. Y. 210, 90 N. E. 834, 27 L. R. A. (N. S.) 843.
326 PREREQUISITES TO ADJUDICATION
See, also, Hughes v. Eddy Valve Co., 147 App. Div. 356, 131
N. Y. Supp. 744, and Murphy v. Walsh, 113 App. Div. 428, 99
N. Y. Supp. 346. I think the claimants brought themselves
within the principles enunciated in the cases cited.
I cannot hold that a payment made immediately before bank-
ruptcy, or filing a petition in bankruptcy, to renew an outlawed
debt and to enable the creditor to come in and share in the dis-
tribution, the one receiving it having no reasonable cause to be-
lieve it will operate as a preference, is a fraud on creditors or
the law. * * *
On the whole, I am of the opinion that the order of the referee
allowing the claims should be affirmed. So ordered.
(e) EiMbbling Creditor to Ohtam Greater Percentage Than
4/ Others of Same Class *^
SWARTS v. FOURTH NAT. BANK OF ST. LOUIS
117 Fed. 1, 54 C. C. A. 387
y fc^ (Circuit Court of Appeals, Eighth Circuit. July 21, 1902)
'y ^ On February 6, 1900, the Siegel-Hillman Dry Goods Company,
\/ a corporation, was adjudged a bankrupt on the petition of its
^ «L creditors, which was filed on X^eeember 30, 1899. Four months
f\ ^ before the filing of the petition, the Fourth National Bank of
* St. Louis held a claim of $60,000 against this corporation, which
was evidenced by a series of promissory notes signed by the
company, and indorsed by H, A. Loeb and B. Hillman, which
amounted to $35,000, and by another series of promissory notes
signed by the corporation, and indorsed by H. A. Loeb, B, Hill-
man, L. Regenstein, and F. Siegel & Bro., which aggregated
$25,000. All the indorsements were placed upon these notes
before they were discounted for the accommodation of the cor-
poration, and for the purpose of giving credit to the notes, so
that the indorsers stood in the relation of makers to the bank,
and of accommodation makers or sureties to the dry goods com-
pany. Within four months preceding the filing of the petition
; in bankruptcy, the dry goods company, while it was insolvent,
jmid-io the bank, which did not have reasonable cause to believe
', that it was intended thereby to give a preference, the sum of
40 — As to who is a "creditor"
see tn/ro, Tit. Provable Claims, pp.
384-476.
PREFERENCES 327
$My6QQL,upon some of the notes which were indorsed by Siegel
& Bro. On February 21, 1900, Siegel & Bro. paid the $10,400
and interest which remained unpaid upon the notes which they
had indorsed, and subsequently proved up this payment as a
claim against the estate of the bankrupt. The bank proved its
claim against the bankrupt's estate for $35,000 and interest,
based upon the notes which had been indorsed by Ivoeb and Hill-
man, but which did not bear the names of Regenstein or Siegel
& Bro. The trustee moved to expunge the claim of the bank .
unless it surrendered the $14,600 which it had received from I
the estate of the bankrupt within four months preceding the/
filing of the petition. The referee granted the motion. The Dis-
trict Court reversed this decision, and directed the referee to
deny the motion. From the decree to this effect, the trustee has
appealed to this court.
i
SANBORN, C. J., after stating the case as above, delivered
the opinion of the court.
May a creditor of a bankrupt whose claim is evidenced by *
numerous promissory notes secured by different indorsers or
accommodation makers accept from the insolvent, within four
months of the filing of the petition in bankruptcy against him,
payment in part of the notes secured by the solvent indorsers,
and then obtain the allowance of that portion of his claim
against the bankrupt upon which the solvent indorsers were not
liable, without a surrender of the payment he has thus obtained ?
This is the primary question which this case presents.
No one can become familiar with the bankrupt law of 1898
without a settled conviction that the two dominant purposes of
the framers of that act were : (1) The protection and discharge
of the bankrupt; and (2) the distribution of the unexempt
property which the bankrupt owned four months before the
filing of the petition in bankruptcy against him, share and share
alike, among his creditors. All the earlier sections of the act
are devoted to the security and relief of the bankrupt, and, when
the distribution of his property is reached, the provisions relat-
ing to it are all drawn from the standpoint of the insolvent, and
not from that of his creditors. The rights and privileges of the
bankrupt, and the equal distribution of his property, dominate
every provision, while the rights, wrongs, benefits, and injuries
of his creditors are always incidental, and secondary to these
controlling purposes. § 60a contains the legal and controlling
-} ''^\
328 PREREQUISITES TO ADJUDICATION
definition of the preference specified in |_57^ and the other parts
of the bankrupt act. 30 Stat. c. 541, pp. 562, 560; Kimball v.
E. A. Rosenham Co. (C. C. A.) 114 Fed. 85, 7 Am. Bankr. R.
718, 719 ; Pirie v. Trust Co., 182 U. S. 438, 21 Sup. Ct. 906, 45
L. ed. 1171. But this definition of a preference was not written
from the station of the creditor, but from that of the debtor.
It is not the act of the creditor, but the act of the debtor, which
gives it, — ^which produces it. The controlling thought is not
the benefit or injury to the creditor, but the equal distribution
of the property of the bankrupt among the holders of the prov-
able claims against him.
It is contended that there was no preference by the payment
by the bankrupt of the $14,600 to the bank on the notes of its
solvent indorsers, because the bank derived no benefit there-
from. It is said that the bank would have received the full pay-
ment of these notes from the indorsers of the bankrupt if noth-
ing had been paid upon them by the corporation. The argu-
ment assumes a fact which does not really exist, for the pre-
sumption always is that cash in hand is more valuable and useful
than the legal liability of any party to pay it. But, if the bank
had derived no benefit from this payment, its legal effect would
not have been different. When the authors of paragraph 60a
prepared the legal definition of a preference, they were neither
considering nor dealing with the promises, liabilities, payments,
or acts of others than the bankrupt. They were treating of his
property, and of the claims of his creditors against that prop-
erty. The dominant purpose of the prohibition of a preference
was not to benefit or injure, or to prevent the benefit or injury,
of any creditor or class of creditors, but to prevent the debtor
from making any disposition of his property which would pre-
vent its equal distribution, — to prevent him from doing anything
which would result in the payment out of his property of a
larger percentage upon any claim than others of the same class
would receive. The plain intention of Congress, and the legal
effect of the paragraph, were to make every transfer of any of
the insolvent's property, by means of which a larger percentage
would be paid out of his estate to any creditor, or on any claim,
than every other creditor and every other claim of the same
class would receive, a preference to be surrendered or avoided
under the other provisions of the statute. The meaning and
effect of § 60a are the same as though it declared every transfer
of his property by an insolvent to be a preference which has the
PREFERENCES 329
effect to "enable aity^One of his creditors to obtain a greater
percentage of his debt" out of the property of the insolvent
* ' than any other of such creditors of the same class. ' ' The test
of a preference, under the act, is the payment, out of the bank-
rupt's property, of a larger percentage of the creditor's claim
•than other creditors of the same class receive, and not the benefit
or injury to the creditor preferred. Marshall v. Lamb, 5 Q. B.
115, 126, 127.
Four months before the filing of the petition in bankruptcy,
the bank had a claim against the estate of the insolvent for
$60,000. Within that four months, it received $14,600 out of
his estate, so that, when the petition in bankruptcy was filed,
instead of a claim for $60,000 against the insolvent, it held $14,-
600 of his money, and a claim against him for $45,400. The
statement of these facts is itself a demonstration that if the bank
can retain this money, and procure the allowance of the balance
of its claim, it will receive a greater percentage of its debt out
of the estate of the insolvent than other creditors of the same
class who receive no such payments. The insolvent has in-
creased the funds of the bank $14,600, and it has diminished by
$14,600 the property to be distributed among its creditors ; and
it is the depletion of the estate, to pay a larger percentage upon
one claim against it than others of the same class will receive,
against which the provisions of § 60a and § 57g are specifically
leveled. The conclusion is irresistible that the payment to the
bank of the $14,600 gave it a preference over the other creditors
of the bankrupt of the same class.
It is, however, strenuously argued that, if the payment of this
$14,600 created a preference, the bank should not be required to
surrender it, because, after the adjudication in bankruptcy,
Si^el & Bro., the solvent indorsers, paid the $10,400 remaining
unpaid on the notes which they had indorsed, and proved this
payment as a part of their claim against the estate of the bank-
rupt, while the claim which the bank has presented consists en-
tirely of notes upon which Siegel & Bro. are not indorsers. But
how does the fact that, since the filing of the petition in bank-
ruptcy, the bank has assigned a portion of its claim to Siegel &
Bro., by operation of law or otherwise, relieve it from its dis-
ability to prove any of its claim until it surrenders its prefer-
ence? The bankrupt act prohibits the allowance of any claim
of a creditor who has received a preference unless he has sur-
rendered that preference. "The claims of creditors who have
330 PREREQUISITES TO ADJUDICATION
received preferences shall not be allowed unless such creditors
shall surrender their preferences. ' ' § 57 g. The unequivocal
language and the unquestionable legal effect of this section are
to prohibit the allowance of any claim of a creditor who has
received a preference, either upon that or upon any other claim
he holds against the estate of the bankrupt, unless he has first
surrendered his preference. Strobel & Wilken Co. v. Knost (D.
C.) 99 Fed. 409; Electric Corp. v. Worden, 39 C. C. A. 582, 99
Fed. 400; In re Conhaim (D. C.) 97 Fed. 924; In re Rogers
MilUng Co. (D. C.) 102 Fed. 687; Collier, Bankr. (3d ed.) pp.
318, 319.
Under the act of 1898, the rights of claimants to share in the
distribution of the estate of the bankrupt are fixed by the status
of their claims at the time of the filing of the petition in bank-
ruptcy. § 63 ; In re Bingham (D. C.) 94 Fed. 796. The petition
in this case was filed on December 30, 1899. At that time the
bank held a claim against the estate of the dry goods company
for $45,400, $35,000 of which was evidenced by the notes of the
bankrupt indorsed by Loeb and Hillman, while $10,400 was evi-
denced by the notes of the bankrupt indorsed by Loeb, Hillman,
Regenstein, and Siegel & Bro. Siegel & Bro. were the only sol-
vent indorsers. Our attention is here challenged to a late de-
cision of the Circuit Court of Appeals for the seventh circuit in
Doyle V. Bank, 24 Nat. Corp. Rep. 406, 116 Fed. 295, in which
it is held that a creditor who holds a promissory note of the
bankrupt, secured by an indorser, is in a different class from
one who holds the bankrupt's note without any indorser, within
the meaning of paragraph 60a, so that the bankrupt may pay
the former's note without creating any preference which must
be surrendered by the creditor before his claim based upon the
unindorsed note can be allowed. This decision is cited to sup-
port the position that the bank is in a different class with its
claim upon the $35,000, from that in which it is with its claim
for $10,400. It must be conceded that, if a creditor holding the
bankrupt 's note with no indorser is in a different class from one
holding it with one indorser, one holding his note with two in-
dorsers must be in a different class from either of the others,
because the third note is marked by exactly the same difference
from the second note as the second is from the first, the differ-
ence of one indorser, — ^while the difference between the first note
and the third note is twice as great. Nor, if it be conceded that
a creditor with one indorser is in a different class from one with
PREFERENCES
331
no indorser, can it be successfully contended that a creditor with
four indorsers, some of whom, are solvent, as is the case in
respect to the $10,400 here in question, is in a different class from
one with two indorsers who are insolvent, as in the case of the
notes for $35,000 under consideration. The character of the
court which rendered this decision, the learning and ability of
the judges who compose it, and the great respect its opinions
always command, have impelled us to a careful consideration of
the conclusion it announces, and of the opinion which support^
it. But their logical effect is to create such a multitude of classes
of creditors, to so confuse the administration of that portion of
the bankrupt law which treats of preferences, and to open so
plain a way to the nullification of paragraph 57g of the bank-
rupt act, that we hesitate to follow them. If a debtor may pay
his indorsed paper within four months of the filing of the peti-
tion in bankruptcy against him, without creating a preference
of the creditor so paid, that will bar the allowance of his claim
on open account or on unindorsed paper, the way to payments
and transfers by a bankrupt which will actually prefer credi-
tors, but which will not fall under the ban of the bankrupt law,
is plain and smooth. All that the debtor needs to do, to evade
the provisions of this act for the surrender of preferences, is to
give indorsed paper for the part of his debts which he proposes
to pay, and the creditor may then receive the actual, and escape
the legal, preference with impunity. We are not yet prepared
to adopt a rule fraught with such consequences.
While it is true that the bankrupt act does not define the word
"elassj^ nor in terms state what creditors are in the same class,
it creates some classes, and specifies others, and it seems to us
that the meaning of the word "class" in the act should, if pos-
sible, be derived from the statute itself. § 64, after directing the
payment of certain expenses of administration, creates three
classes of creditors, — parties to whom taxes are owing, employes
holding claims for certain wages, and those who, by the laws of
the states or of the United States, are entitled to priority.
§§ 56&, 57e, and 57/i provide for the treatment and disposition
of claims secured by property, and of claims which have priority.
The creditors who hold these various claims, and the general
creditors of the estate, constitute the classes of creditors of which
the bankrupt act treats. Now, if any one of these various classes
is taken by itself and examined, it will be seen that each one of
the creditors in the same class always receives the same per-
fe«
51
332 PREREQUISITES TO ADJUDICATION
centage upon his claim, out of the estate of the bankrupt, that
every other creditor of his class receives. "Where the estate is
insufficient to pay the claims of different classes in full, the
classes receive, out of the bankrupt estate, different percentages
of their claims, but creditors of the same class receive the same
percentage. The test of classification is the percentage paid upon
the claims out of the estate of the bankrupt.
Here, again, in considering this question of classification, it is
well to bear in mind that this act was drawn from the station of
the bankrupt, and that its primary purposes were to relieve the
bankrupt, and to distribute his property equally among his
creditors. The test of a preference, as we have seen, is whether
or not a transfer or payment will have the effect to pay on one
claim a larger dividend, out of the estate of the bankrupt than
that estate will pay on other claims of the same class. It is its
effect upon the equal distribution of the estate of the bankrupt,
not its effect upon the creditor, that determines the preference.
The same dominant thought controls and determines the classifi-
cation of the creditors. Those creditors who are entitled to re-
ceive out of the estate of the bankrupt the same percentage of
their claims are in the same class, however much their owners
may have the right to collect from others than the bankrupt.
Their relations to third parties, their right to collect of others,
the personal security they may have through indorsements or
guaranties, receive no consideration, no thought. It is the rela-
tion of their claims to the estate of the bankrupt, the percentages
their claims are entitled to draw out of the estate of the bank-
rupt, and these alone, that dictate the relations of the creditors
to the estate, and fix their classification and their preferences.
Now take the case in hand, or the simpler case of a creditor
who has one of the bankrupt 's notes with a solvent indorser and
another without any indorser. He is entitled to receive the same
percentage out of the estate of the bankrupt on his indorsed note
that he is on that which is not indorsed. It is true that he has
the right to collect the former of the indorser. But, if he does,
the indorser may prove the note, and receive exactly the same
percentage upon the claim that the original creditor would re-
ceive upon the note which was not indorsed. § 57t. The two
notes bear exactly the same relation to the estate of the bank-
rupt whether indorsed or not, — whether paid by the indorser or
not, — and for this reason they and their holders stand in the
same class. They are in the same class because it is the relation
PREFERENCES 333
of the creditors, and their claims to the estate of the bankrupt,
and not their relation to third parties, that determines their
rights, and fixes their status, under the bankrupt act of 1898.
We are not persuaded that a creditor who holds an indorsed note
of a bankrupt is in a different class from one who holds his note
without an indorsement, under § 60a of the bankrupt act, be-
cause the legal result of such a conclusion would lead to the
creation of new and numerous classes of creditors not specified
in the bankrupt act ; because that conclusion would open a plain
way to evade the provisions of § 57gr; because the definition of
the term "class" as used in the bankrupt act should be derived
from that statute itself; and because the true test of the classifi-
cation of creditors under that act is the percentage which, in
the absence of preferences, their claims are entitled to draw out
of the estate of the bankrupt, and the holder of an unindorsed
note is entitled to the same percentage from the estate as the
holder of an indorsed note. Creditors who, in the absence of
preferences, are entitled to receive the same percentage upon
their claims out of the estate of the bankrupt, are members of
the same class. Those who are entitled to different percentages
are of different classes. The result is that the bank as holder of
the notes for $10,400, upon which there were four indorsers,
was in the same class as it was as the holder of the notes for
$35,000, on which there were but two indorsers. On December
30, 1899, it had received a preference of $14,600, and it was
forbidden to prove any part of its claim until it surrendered this
preference.
These facts fastened upon the entire claim of the bank an
attribute of disqualification for allowance. The ban of the
statute was upon the claim. The act declares that the claims of
creditors who have received preferences shall not be allowed un-
less the creditors surrender their preferences. This disqualifica-
tion inheres in every part, every dollar, of the claim of the bank.
The holder of this claim could not qualify it for allowance by
transferring the whole or a part of it to another, nor could
Siegel & Bro. accomplish this result by paying the notes on
which they were indorsers, and becoming their owners by subro-
gation. Every part of the claim, whether retained by the bank
or assigned to another, remained, and will remain, disqualified
for allowance until the $14,600 whose payment constitutes the
preference is surrendered. The claim of the bank, therefore,
must be expunged unless it repays to the trustee the $14,600
334 PREREQUISITES TO ADJUDICATION
which it received from the insolvent within four months prior to
the filing of the petition in bankruptcy. * • •
\l>
(f) Intent to Prefer
TOOF V. MARTIN
13 Wall. 40
(United States Supreme Court. December Term, 1871)
Error to the Circuit Court for the District of Arkansas; the
case being thus :
The 35th section of the bankrupt act of 1867, thus enacts :
"That if any person, being insolvent, or in contemplation of
insolvency, with a view to give a preference to any creditor or
person having a claim against him * * * makes any as-
signment, transfer, or conveyance of any part of his property
* * * (the person receiving such assignment, transfer, or
conveyance, having reasonable cause to believe such person is
insolvent, and that such assignment or conveyance is made in
fraud of the provisions of this act) , the same shall be void, and
the assignee may recover the property, or the value of it, from
the person so receiving it or so to be benefited. ' '
With this enactment in force, Martin, assignee in bankruptcy
of Haines and Chetlain, filed a bill in the District Court for the
Eastern District of Arkansas, against J. S. Toof, C. J. Phillips,
and F. M. Mahan, trading as Toof, Phillips & Co. (Haines and
Chetlain being also made parties), to set aside and cancel cer-
tain conveyances alleged to have been made by these last in
fraud of the above-quoted act.
Haines and Chetlain were, in February, 1868, and had been
for some years before, merchants, doing business under the firm
name of W. P. Haines & Co., at Augusta, Arkansas. On the
29th of that month they filed a petition for the benefit of the
bankrupt act, and on the 28th of May following were adjudged
bankrupts, and the complainant was appointed assignee of their
estates. On the 18th of the previous January, which was about
six weeks before the filing of their petition, they conveyed an
undivided half-interest in certain parcels of land owned by
them at Augusta, to Toof, PhiUips & Co., who were doing busi-
ness at Memphis, in Tennessee, for the consideration of $1,876,
which sum was to be credited on a debt due from them to that
firm. At the same time they assigned to one Mahan, a member
X%A^A/i^\/Jf^^'^
PEEFERENCES 335
of that firm, a title-bond which they held for certain other real
property at Augusta, upon which they had made valuable im-
provements. The consideration of this assignment was two drafts
of Mahan on Toof, Phillips & Co., each for $3,034, one drawn
to the order of Haines, and the other to the order of Chetlain.
The amount of both drafts was credited on the debt of Haines
& Co. to Toof, Phillips & Co., pursuant to an understanding to
that effect made at the time. There was then due of the pur-
chase-money of the property, for which the title-bond was given,
about $700. This sum Mahan paid, and took a conveyance to
himself from the obligor who held the fee.
The biU. charged specifically that at the time these conveyances
were made the bankrupts were insolvent or in contemplation of
insolvency ; that the conveyances were made with a view to give
a preference to Toof, Phillips & Co., who were the creditors of
the bankrupts; that Toof, Phillips & Co. knew, or had reason-
able cause to believe, that the bankrupts were then insolvent,
and that the conveyances were made in fraud of the provisions
of the bankrupt act.
It also charged that the assignment of the title-bond to Mahan
was in fact for the use and benefit of Toof, Phillips & Co., for
the purpose of securing the property or its value to them in
fraud of the rights of the creditors, and that this purpose was
known and participated in by Mahan.
The answer, admitting a large amount of debts at the time
of the conveyances in question, denied that the bankrupts were
then "insolvent," asserting, on the contrary, "that at the time
aforesaid said Haines & Co. had available assets in excess of
their indebtedness to the extent of $16,000." It also denied
that there was a purpose to give a preference ; asserting that the
conveyances of the land were made because Haines & Co., not
having cash to pay the debt due Toof, Phillips & Co., were will-
ing to settle in property; and it denied that the title-bond was
assigned to Mahan for the benefit of Toof, Phillips & Co., or
that they paid for the same; but on the contrary averred that
Mahan bought the property and paid for it himself, and for his
own use and benefit, out of his own funds.
Appended to the bill were several interrogatories, the first of
which inquired whether at the time of making the transfers to
Toof, Phillips & Co. the indebtedness of W. P. Haines & Co. was
not known to be greater than their immediate ability to pay;
and to this Toof, Phillips & Co. answered that at the time of
336 PREREQUISITES TO ADJUDICATION
making these transfers they did not believe Haines & Co, were
able to pay their debts in money, but that they were able to do
so on a fair market valuation of the property they owned, and
of their assets generally.
Chetlain, one of the bankrupts, testified that on the 18th of
January, 1868, Haines & Co. could not pay their notes as they
came due; that previous to this time they had contemplated
bankruptcy, and that he had had several conversations with
Mr. F. M. Mahan, relative to their finances, and had told him
the amount, or near the amount, of their debts. His advice was
to get extensions, and he would help them get through; that
after his promises to advance them more goods, they concluded
not to go into bankruptcy, but to go on in business ; that he told
Mahan that Haines & Co. could not pay out ; and in a conversa-
tion with him previous to the transfer of the real estate, he,
Chetlain, told Mahan that such was the state of the finances of
Haines & Co. that if he would assume their liabilities, and give
them a receipt, Haines & Co. would turn over all their assets to
him. He did not accept.
He also testified that about the 1st of January, 1868, the
sheriff levied on the goods belonging to Haines & Co., in their
storehouse in Augusta, on an execution in favor of one Weghe,
which caused them to suspend business for a few days, until the
levy was dissolved by order of the sheriff, at or about the 15th
day of January, 1868. Mahan was in Augusta at the time of
this levy, and Haines & Co. had an interview with him in regard
to it.
During the entire autumn and winter preceding these trans-
fers, Haines & Co. did not pay, except to Toof, Phillips & Co.,
more than $500 on all their debts; and in the latter part of
December, 1867, and the first part of January, 1868, some of
the creditors sent agents to collect money from them, but got
none, because Haines & Co. had no funds to pay them.
A witness, Frisbee, testified that he had assisted Mr. Haines
in making up his balance-sheet "about the 1st of January, 1868,
and that the result was that their available assets were not
sufficient to pay their debts."
' Another witness, an agent for an express company, testified
that he received, about the last of December, 1867, or January,
1868, notes from Toof, Phillips & Co. and another firm, against
Haines & Co. for collection ; that he presented them for payment
to Haines & Co., and that they said they could not pay them at
PREFERENCES 337
that time. They did not pay them to him. He knew something
of the financial condition of Haines & Co., and of their debt to
Toof, Phillips & Co., and of complaints of other parties, and
something of their business through the country, and from all
these facts he thought it doubtful about their being able to pay
their debts. This was during the months of December, 1867,
and January, 1868 ; and he wrote to Toof, Phillips & Co. that he
thought they had better look to their interests, as his conviction
was that it was doubtful about their being able to collect their
debt from Haines & Co. Shortly after writing this letter Mahan
came round to look after the matter.
The property described in the title-bond assigned to Mahan,
which he stated that he purchased as an investment on private
account for $7,000, was shown by the testimony of Chetlain to
have been worth only $4,000, and by the testimony of a witness,
Hamblet, to have been worth only $3,500, and it was valued by
the bankrupts in their schedules at $4,000. Both of the bank-
rupts testified that it was understood at the time the title-bond
was assigned to Mahan, that the amount of the two drafts given
by him on Toof, Phillips & Co. for it, should be credited to
Haines & Co. on their indebtedness to that firm.
The schedules of the bankrupts annexed to their petition
showed that their debts at the time of their transfers to Toof,
Phillips & Co., exceeded $59,000, while their assets were less
than $32,000.
On the other hand there was some testimony to show that
some persons thought that they could get through, etc., etc.
The District Court decreed the conveyances void, and that the
title of the property be vested in the assignee, the latter to refund
the amount of the purchase-money advanced by Mahan to obtain
the deed of the land described in the title-bond, less any rents
and profits received by him or Toof, Phillips & Co., from the
property. This decree the Circuit Court affirmed.
In commenting upon the answer of Toof, Phillips & Co., al-
ready mentioned, which, in reply to the interrogatory, "whether
at the time of the transfer to them the indebtedness of Haines &
Co. was not greater than their ability," admitted that they did
not believe Haines & Co. "able to pay their debts in money/*
the Circuit Court said:
"Here is a direct confession of a fact that in law constitutes
insolvency, and it is idle for the defendants to profess ignorance
of the insolvency of the bankrupts in face of such a confession.
H. & A. Bankruptcy — 22
338 PREREQUISITES TO ADJUDICATION
If the bankrupts could not pay their debts in the ordinary course
of business, that is, m money, as they fell due, they were in-
solvent, and if the defendants did not know that this consti-
tuted insolvency within the meaning of the bankrupt act, it was
because they were ignorant of the law. ' '
But that court examined all the testimony, and in affirming
the decree of the District Court, rested the case upon it, as well
as upon this answer. From the decree of the Circuit Court,
Toof, Phillips & Co., brought the case here.
Mr. Justice FIELD delivered the opinion of the court.
The bill presents a case within the provisions of the first
clause of the thirty-fifth section of the bankrupt act. That clause
was intended to defeat preferences to a creditor, made by a
debtor when insolvent or in contemplation of insolvency. It de-
clares that any payment or transfer of his property made by
him whilst in that condition, within four months previous to the
filing of his petition, with a view to give a preference to a credi-
tor, shall be void if the creditor has at the time reasonable cause
to believe him to be insolvent, and that the payment or transfer
was made in fraud of the provisions of the bankrupt act. And
it authorizes in such case the assignee to recover the property or
its value from the party who receives it.
Under this act it is incumbent on the complainant, in order to
maintain the decree in his favor, to show four things :
1st. That at the time the conveyances to Toof, Phillips & Co.
and Mahan were made the bankrupts were insolvent or con-
. , . templated insolvency ;
f .. 2d. That the conveyances were made with a view to giv€ a
preference to these creditors ;
3d. That the creditors had reasonable cause to believe the
bankrupts were insolvent at the time ; and,
4th. That the conveyances were made in fraud of the pro-
visions of the bankrupt act.
1st. The counsel of the appellants have presented an elaborate
argument to show that inability to pay one's debts at the time
they fall due, m money, does not constitute insolvency, within
the provisions of the bankrupt act. The argument is especially
addressed to language used by the district judge when speaking
of the statement of the appellants in answer to one of the in-
terrogatories of the bill, to the effect that at the time the trans-
fers were made they did not believe the bankrupts were able to
PREFERENCES 339
pay their debts im, money, but were able to do so on a fair
market valuation of their property and assets. The district
judge held that this was a direct confession of a fact which in
law constitutes insolvency, and observed that "if the bankrupts
could not pay their debts in the ordinary course of business,
that is, in money, as they fell due, they were insolvent. ' '
The rule thus laid down may not be strictly correct as applied
to all bankrupts. The term insolvency is not always used in
the same sense. It is sometimes used to denote the insujBficiency
of the entire property and assets of an individual to pay hia
debts. This is its general and popular meaning. But it is also
used in a more restricted sense, to express the inability of a
party to pay his debts, as they become due in the ordinary
course of business. It is in this latter sense that the term is
used when traders and merchants are said to be insolvent, and
as applied to them it is the sense intended by the act of Con-
gress. It was of the bankrupts as traders that the district judge
was speaking when he used the language which is the subject of
criticism by counsel.
With reference to other persons not engaged in trade or com-
merce the term may perhaps have a less restricted meaning.
The bankrupt act does not define what shall constitute insol-
vency, or the evidence of insolvency, in every case.
In the present case the bankrupts were insolvent in both senses
of the term at the time the conveyances in controversy were
made. They did not then possess sufficient property, even upon
their own estimation of its value as given in their schedules, to
pay their debts. These exceeded the estimated value of the
property by over twenty thousand dollars. And for months
previous the bankrupts had failed to meet their obligations as
they matured. Creditors had pressed for payment without suc-
cess; their stock of goods had been levied on, and their store
closed by the sheriff under an execution on a judgment against
one of them. It would serve no useful purpose to state in detail
the evidence contained in the record which relates to their con-
dition. It is enough to say that it abundantly establishes their
hopeless insolvency.
2d. That the conveyances to Toof, Phillips & Co. were made
with a view to give them a preference over other creditors hardly
admits of a doubt. The bankrupts knew at the time their in-
solvent condition. A month previous they had made up a bal-
ance sheet of their affairs which showed that their assets were
340 PREREQUISITES TO ADJUDICATION
insufficient to pay their debts. They had contemplated going
into bankruptcy in December previous, and were then pressed
by numerous creditors for payment. Their indebtedness at the
time exceeded $50,000, and except to Toof, Phillips & Co. they
did not pay upon the whole of it over $500 during the previous
fall and winter. Making a transfer of property to these credi-
tors, under these circumstances, was in fact giving them a pref-
erence, and it must be presumed that the bankrupts intended
this result at the time. It is a general principle that every one
must be presumed to intend the necessary consequences of his
acts. The transfer, in any case, by a debtor, of a large portion
of his property, while he is insolvent, to one creditor, without
making provision for an equal distribution of its proceeds to all
his creditors, necessarily operates as a preference to him, and
must be taken as conclusive evidence that a preference was in-
tended, unless the debtor can show that he was at the time
ignorant of his insolvency, and that his affairs were such that
he could reasonably expect to pay all his debts. The burden of
proof is upon him in such case, and not upon the assignee or
contestant in bankruptcy.
No such proof was made or attempted in this case. But, on
the contrary, the evidence shows that the conveyances were
executed upon the expectation of the bankrupts, and upon the
assurance of Toof, Phillips & Co., that in consequence of them
they would continue to sell the bankrupts goods on credit, as
they had previously done; and that no arrangement was made
by the bankrupts with any other of their creditors, either for
payment or security, or for an extension of credit.
The fact that the title-bond was assigned, and the property
for which it was given was conveyed to Mahan alone, and not
to Toof, Phillips & Co., does not change the character of the
transaction. Mahan was a member of that firm, and the con-
veyance was made to him with the understanding that the sum
mentioned as its consideration should be credited on the in-
debtedness of the bankrupts to them. Both of the bankrupts
testified that such was the understanding at the time. The pre-
tense that Mahan bought the lots as an investment on private
account will not bear the slightest examination. It is in proof
that the lots at the time were only worth $4,000 at the outside,
yet the consideration given was nearly $7,000. Toof, Phillips &
Co. might well have been willing to credit this amount on their
claim against insolvent traders in consideration of obtaining
PREFERENCES 341
from them the possession of property of much less value, but it
is incredible that an individual, seeking an investment of his
money, would be careless as to the difference between the actual
value of the property and the amount paid as a consideration
for its transfer to him,^ ^
3d. From what has already been said it is manifest not only
that the bankrupts were insolvent when they made the con-
veyances in controversy, but that the creditors, Toof, Phillips
& Co., had reasonable cause to believe that they were insolvent.
The statute, to defeat the conveyances, does not require that the
creditors should have had absolute knowledge on the point, nor
even that they should, in fact, have had any belief on the sub-
ject. It only requires that they should have had reasonable
cause to believe that such was the fact. And reasonable cause
they must be considered to have had when such a state of facts
was brought to their notice in respect to the affairs and pecuniary
condition of the bankrupts as would have led prudent business
men to the conclusion that they could not meet their obligations
as they matured in the ordinary course of business. That such
a state of facts was brought to the notice of the creditors is
plainly shown. Chetlain, one of the bankrupts, testifies that
previous to the execution of the conveyances he had several con-
versations with Mahan respecting their finances, and told him
the amount or near the amount of their indebtedness, and that
they could not pay it. Mahan advised them to get extensions,
and said that he would help them to get through. Chetlain also
testifies that such was the state of the finances of the bankrupts
that on one occasion, in conversation with Mahan, they offered
to turn over to him their entire assets if he would assume their
liabilities and give them a receipt, and that he declined the offer.
It also appears in evidence that the levy by the sheriff upon
the stock of goods of the bankrupts, already mentioned, which
was made in January, 1868, caused a temporary suspension of
their business, and that Mahan was in Augusta at the time and
had an interview with the bankrupts on the subject of the levy.
It also appears that about the last of December, 1867, or the
first of January, 1868, Toof, Phillips & Co. sent notes of the
41— See Wager v. Hall, 16 Wall. Donald & Sons, 178 Fed. 487; Kim-
584, 602; Western Tie & Timber merle v. Farr, 189 Fed. 295.
Co. V. Brown, 196 U. S. 502 ; Nay- See also First Nat. Bank v. Jones,
Ion & Co. V. Christiansen Harness 21 Wall. 325.
Mfg. Co., 158 Fed. 290; In re Mc-
342 PREREQUISITES TO ADJUDICATION
bankrupts which they held to an agent in Augusta for collec-
tion. The agent presented the notes for payment to the bank-
rupts and was told by them that they could not pay the notes at
that time. The agent then wrote to Toof, Phillips & Co., that
they had better look to their interests, as his conviction was that
it was doubtful whether they would be able to collect their debts.
Shortly after this Mahan went to Augusta to look after the mat-
ter, and whilst there the conveyances in controversy were made.
It is impossible to doubt that Mahan ascertained, while thus
in Augusta, the actual condition of the affairs of the bankrupts.
The facts recited were sufficient to justify the conclusion that
they were insolvent, or at least furnished reasonable cause for a
belief that such was the fact.
4th. It only remains to add that the creditors, Toof, Phillips
& Co., had also reasonable ground to believe that the conveyances
were made in fraud of the provisions of the bankrupt act. This,
indeed, follows necessarily from the facts already stated. The
act of Congress was designed to secure an equal distribution of
the property of an insolvent debtor among his creditors, and any
transfer made with a view to secure the property, or any part
of it, to one, and thus prevent such equal distribution, is a
transfer in fraud of the act. That such was the effect of the
conveyances in this case, and that this effect was intended by
both creditors and bankrupts, does not admit, upon the evi-
dence, of any rational doubt. A clearer case of intended fraud
upon the act is not often presented.
Decree affirmed.
V
V GOODLANDER-ROBERTSON LUMBER CO. et al. v.
ATWOOD
^\)^ 152 Fed. 978, 82 C. C. A. 109
\ . (Circuit Court of Appeals, Fourth Circuit. April 9, 1907)
V
-*■:
McDowell, D. J. On March 27, 1906, three of the creditors
of W. J. Atwood, a dealer in lumber in Norfolk, Va., filed a
petition, praying that Atwood be adjudicated an involuntary
bankrupt. The alleged act of bankruptcy was the payment by
Atwood to the Hardwood Lumber Company, a creditor, of $160
on February 27, and of $121.15 on March 6, 1906, being then
insolvent, with intent to prefer the said lumber company over
his other creditors. The plea of the bankrupt to the petition
PREFERENCES 343
consisted of a denial of the commission of the act of bankruptcy
alleged in the petition. A jury trial was not demanded, and the
evidence was adduced orally before the trial court, whereupon
an order was entered dismissing the petition. The petitioning
creditors have appealed.
It appears that the Hardwood Lumber Company sustained no
relation to the alleged bankrupt other than that of one of sev-
eral creditors, and that no sort of reason existed why Atwood
should have desired or intended to prefer such creditor to any
other creditors. The collections were made by an attorney, and
the payments were made in the ordinary course of business and
to avoid suit. At the time the payments were made Atwood was
insolvent in the sense in which the word is used in the bank-
rupt act (Act July 1, 1898, c. 541, 30 Stat. 544, § 1, cl. 15 [U. S.
Comp. St. 1901, p. 3419]). He was indebted to about the sum
of $20,000 — but much of this was not then due, and his salable
property did not exceed $1,500. He did have, however, a knowl-
edge of a rather technical and not easily learned business and
a custom or * * good will ' ' which has been apparently disregarded
by counsel for appellants. The question in the case is whether
or not the payments were made (Bankr. Act. § 3, cl. 2) with
intent to prefer. From a careful reading of the evidence we
are satisfied that Atwood did not regard himself as insolvent;
that he made the two payments in question, as he had been doing
previously, in the ordinary course of business, and without intent
to prefer the creditor. He did know that his cash receipts were
not at all times sufficient to enable him to meet the bills against
him promptly. But he did not regard himself as doomed to fail-
ure. In fact the evidence leads us to believe that he expected
to continue in business, to meet his obligations as they fell due
and that he had by no means lost hope of ultimate success. The
sums which he paid were just debts, then due, rather trifling in
amount when considered in connection with the business he was
doing, and they were paid in order to be able to continue in busi-
ness and to avoid suit. If Congress had intended that a payment
made under such circumstances as we have here should be an
act of bankruptcy, the language of § 3, cl. 2, of the act would
have been very different. As it is written, the law makes such
payments acts of bankruptcy only when made with ''intent to
prefer." " ^
It is argued that every man is presumed to intend the neces-
sary consequences of his acts. But the defendant had no reason
f/VA-itu. ^O-^'^ ^^"^ f^*^<-\..^ iw*^'-»^-
344 PREREQUISITES TO ADJUDICATION
to suppose that such consequences would be an involuntary peti-
tion in bankruptcy, the seizure of his property by a receiver
and the consequent ruin of his credit and destruction of his
business. The consequences of making the payments in ques-
tion reasonably to be expected were a continuance in business
with the prospect of an ultimate payment of all of the creditors
in full. An intent to prefer is an intent that some particular
creditor shall receive a greater percentage of his debt than the
other creditors of the same class. In the case at bar the evidence
negatives the existence of such intent.
The judgment of the trial court is affirmed.
i^
MACON GROCERY CO. et al. v. BEACH
156 Fed. 1009
(District Court, S. D. Georgia, N. D. October 1, 1907)
SPEER, District Judge. The Macon Grocery Company and
other creditors made petition, by which it was sought to obtain
an adjudication of involuntary bankruptcy against Asa N.
Beach. The indebtedness of Beach amounted to about $13,000.
The amount of his assets is not stated, and the proceeding is
obviously brought as a basis for an equitable application to the
bankruptcy court, designed to subject large values which in one
way and another had been conveyed by Beach to a Miss Julia
Dixon, whose agent for a long time he had been. Miss Dixon is
an aged and infirm lady, and Beach was the adopted child of
her parents. Her property consisted of plantations, other real
estate, and money. It is contended by the petitioning creditors
that, while Beach pretended to be the agent for Miss Dixon, they
both entered into a general scheme to defraud his creditors.
This, it is insisted, was evidenced through the execution by Beach
of mortgages to Miss Dixon to secure an alleged indebtedness to
her of $11,817. To give the court jurisdiction to make a de-
cree or decrees canceling the conveyances of Beach to Miss Dixon,
and recovering for the benefit of creditors the property he con-
veyed, it must first be made to appear that Beach is a bankrupt
as alleged.
To accomplish this, the plaintiffs make four averments of
bankruptcy. The first is that Beach, while insolvent, drew a
draft on Little, Williams & Co., cotton brokers, in favor of the
Louisville Drug Company, for $19.85, and that this payment was
PREFERENCES 345
made on October 1, 1901, with intent to prefer the'dnig company
over other creditors. The second is that the defendant did on
the same date pay to J. J. Keith, one of his creditors, the sum
of $2.75, with intent to give him a preference. The third is an
alleged preference given to R. L. Bostiek, by draft on Little,
WiUiams & Co. for $100. This was paid on September 17, 1901.
The fourth is an alleged preference in favor of the Bank of
Louisville by the payment of $500. To these charges Beach
made answer. The answer did not admit insolvency; but this
was admitted in judicio by his attorney, and also by his brief
presented to the court. He denied that the acts specified were
acts of bankruptcy. The first, third, and fourth payments, he
alleged, were made by him as the agent of Miss Dixon, and with
her means. As to the second charge, he admitted the payment
of the $2.75 to Keith, but denied that this was done with intent
to give him a preference. He also answered that he was chiefly
engaged in farming and the tUlage of the soil, and for this reason
insisted that he could not, in terms of the law, be adjudged an
involuntary bankrupt.
On the issues thus made much testimony was taken by the con-
tending parties. Finally, by agreement and consent of counsel,
the evidence and the issues presented were referred to J. N.
Talley, Esq. (who is the standing master in chancery), as special
master, with direction to report "his findings and the conclu-
sions upon the law and the evidence, for such action of the court
in the premises as shall seem proper. " In an elaborate report,
scrutinizing every phase of the controversy, the master finds,
first, that Beach is not entitled to exemption from the operation
of the bankruptcy law and that he is not chiefly engaged in agri-
culture. He then sustains the contentions of Beach as to the
first, third, and fourth alleged acts of bankruptcy, and finds that
such payments were made in behalf of Miss Dixon, and not by
Beach from his own assets. The counsel for both parties prob-
ably recognizing that by their consent reference they have desig-
nated a tribunal whose findings on the facts will rarely be dis-
turbed by the court (Chicago Motor Vehicle Co. v. American
Oak Leather Co., 141 Fed. 520, 72 C. C. A. 576, Kimberly v.
Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. ed. 764), no excep-
tion is made by the defendant to the finding that Beach is not
exempt from the operation of the law because of his contention
that his chief pursuit is agriculture, and none by the petitioners
346
PREREQUISITES TO ADJUDICATION
to the findings on the first, third, and fourth grounds, that the
several payments were made as agent for Miss Dixon.
The master, however, finds that Beach, while insolvent, com-
mitted an act of bankruptcy, as set forth in the second charge,
for the reason that while insolvent, and within four months prior
to the filing of the petition in bankruptcy, he paid the sum of
$2.75 to J. J. Keith, one of his creditors. This payment is not
denied. It is evidenced by the receipt from Keith, which recites
the items of the account. This is as follows:
''Louisville, Ga., Jan. 22, 1902.
"Mr. A. N. Beach, to J. J. Keith, Dr. Fancy Groceries, Finest
Soda Water and Cream.
1901.
June 13 To Soda Water $.05
22 " Bar Soap 05
July 6 ' ' Lemonade 05
" " Soda 05
9 * ' Lemonade 05
" " Soda 05
20 * * Lemonade 05
" " Coca Cola 05
24 " Lemonade 05
August 26 " " 05
Sept. 5 " " 05
6 " " 05
7 " 1 Dressed Doll 2.15
$2.75
"Received from A. N. Beach cash for above acct.
* ' Oct. 7th, 1901. J. J. Eeith, Jne. ' '
The question to be determined, then, is: Does this payment
by Beach, while insolvent, constitute an act of bankruptcy?
The oral evidence in the record with regard to this alleged pref-
erence is found solely in the testimony of Beach himself, as
follows :
"On October 7, 1901, I paid $2.75 to J. J. Keith. It was my
debt. The consideration of the debt is shown by the items on
the receipted bill. * * * l got the dressed doll for a present.
When I paid this little bill to J. J. Keith on October 7, 1901, I
owed for mercantile debts something like $13,000, including the
PEEFERENCES 347
debts due the petitioning creditors. In addition to those of
petitioning creditors, I owed several thousand dollars of other
debts. When I paid this debt to J, J. Keith, I did not have in
mind any of my mercantile and other creditors. I did not pay
this debt to J. J. Keith in order to prefer him over my other
creditors. In paying this account, it was not my purpose to give
J, J. Keith an advantage over my creditors. I did not consider
the amount paid Keith a debt."
The relating statutory clause is § 3« (2) of the bankruptcy
act (Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901,
p. 3422]), as follows:
"Acts of bankruptcy by a person shall consist of his having
• * * (2) transferred, while insolvent, any portion of his
property to one or more of his creditors, with intent to prefer
such creditors over his other creditors."
Can it be, in view of the trivial amount paid by Beach, the
character of his purchases, and the general aspect of the trans-
action, that this must be regarded as a transfer of a portion of
his property to a creditor, with intent to prefer such creditor
over his other creditors, which will cast his entire estate into
bankruptcy. Very great respect should be accorded to the find-
ing of the master, who resolved this question in the affirmative.
His report was thoroughly considered, and his reasoning is im-
pressive. It is also true that to adopt literally the deliverances
of many courts of acknowledged authority would be to sustain
his finding. The strong consensus of opinion on this topic among
the courts is clearly stated in Webb v. Sachs, 15 N. B. R. 171,
Fed. Cas. No. 17,325. The decision is by the District Court of
Oregon. There it was held that :
"If a debtor, with knowledge of his insolvency, does an act
which operates as a preference to one of his creditors, he is pre-
sumed to have so intended, as that is the necessary consequence
of his act; and the additional fact that such debtor was really
moved to give such preference for any other or particular rea-
son, such as to save costs or satisfy the ^licitations of an im-
portunate creditor, or preserve his good will, or keep up his
business, does not affect such presumption. Whatever the
debtor's motive may be, he is presumed to intend the natural
and necessary consequences of his acts. ' '
See, also, Johnson v. Wald, 93 Fed. 640, 35 C. C. A. 522, 2
Am. Bankr. Rep. 84 (opinion by Circuit Judge Shelby of the
Fifth Circuit) ; Morgan & Co. v. Mastick, 2 N. B. R. 521, Fed.
348 PREREQUISITES TO ADJUDICATION
Gas. No. 9,803 ; Miller v. Keys, 3 N. B. R. 224, Fed. Gas. No.
9,578; In re Smith, 3 N. B. R. 377, Fed. Gas. No. 12,974; In re
Silverman, 4 N. B. R. 523, Fed. Gas. No. 12,855 ; In re Oregon
Printing Go., 13 N. B. R. 503, Fed. Gas. No. 10,559.
It is also held, with strong reason, that the testimony of a
party himself that he had not a preferential intent is entitled
to very little weight, where such intent is plainly presumable.
Oxford Iron Co. v. Slafter, 13 Blateh. 455, 14 N. B. R. 380, Fed.
Gas. No. 10,637 ; In re Wright Lumber Go. (D. G.) 114 Fed. 1011.
Many other authorities might be cited to the same tenor and
effect. It will be found, however, that in each of these cases a
substantial preference had been made, that the preferential
intent was always inferable, and that the consequent injury to
other creditors was significant and distinct. The basic reason
upon which all of these determinations are founded is substan-
tially that every person of a sound mind is presumed to intend
the necessary, natural, and legal consequences of his deliberate
acts. In each case the insolvency of the bankrupt was conceded
or proven. Then, when he has made a payment to a particular
creditor, he is presumed to have the intent to prefer him, as it
will enable that creditor to obtain a greater percentage of his
debt than will inure to others. But if the payment on the debt
is of that infinitesimal sort that it can have no perceptible con-
sequence, is an intent to prefer a necessary, natural, and legal
consequence of such payment ? It would seem that the substan-
tial or important character of a payment or transfer must ex
necessitate possess large evidential effect to show the intent to
prefer. This may be gathered from the statement of Mr. Justice
Field, in Toof v. Martin, 13 Wall. 40, 20 L. ed. 481. Speaking
for the court in that case, that great jurist declares:
"It is a general principle that every one must be presumed
to intend the necessary consequences of his act. The transfer
in any case by the debtor of a large part or all his property while
he is insolvent to one creditor, without making provision for an
equal distribution of its proceeds to all his creditors, necessarily
operates as a preference to him. * * *"
If this is true, the converse would seem also true. If the al-
leged bankrupt, although aware of his insolvency, should make
a payment of an amount not a large part of his means, but utterly
trivial — a payment to which no creditor, in the absence of liti-
gation, would possibly object — it is at least debatable whether
such payment must necessarily demonstrate the unlawful intent
PREFERENCES 349
to give a preference to one creditor to the injury of others. The
doctrine which we are discussing, and which the courts have so
strongly stated, presupposes that the payment is injurious to the
other creditors. But where the facts show that no injury, of
which the law would or could take an account, would result,
the reason of the rule ceasing, it seems that the rule itself would
cease. This is illustrated by the remarks of Judge Bellinger in
Re Gilbert, 112 Fed. 951, 8 Am. Bankr. Rep. 101, in the District
Court of Oregon, decided in 1902. The case was a petition for
involuntary bankruptcy, and the learned judge observed:
"The presumption arising from the transfer of property is
affected by the amount of such transfer. Thus, where the trans-
fer was of all one 's property, this was held to afford a violent —
almost conclusive — presumption of an intent to prefer, where
other creditors were unprovided for. * * * in this case the
transfer was of a comparatively small part of the property of
A. T, Gilbert — so small that the expediency of resorting to a
bankruptcy court, rather than permit a distribution of the assets
of the bank through the pending proceedings in the State Court,
may be doubted. If the preferences complained of are set aside,
it will add not more than 1 per cent, to the dividends to be paid
the general creditors."
Again, in Re Douglass Coal & Coke Co. (D. C.) 131 Fed. 769,
it was held that the small size of the payment may be looked to
as a circumstance, in connection with others, to justify the con-
clusion that no preference was intended. The language of the
court is as follows :
"Payments of comparatively small sums of money by an in-
solvent corporation to each of a number of its creditors, made in
the usual course of business, do not raise a presumption of an
intent to prefer such creditor over its other creditors, so as to
establish an act of bankruptcy by a transfer of property with
intent to prefer, within [the] bankruptcy act. * * *"
A fortiori, would one trifling payment to one creditor fail
to evoke such presumption. The ruling in that case was by the
referee, but the District Court of the Eastern District of Ten-
nessee, in aflBrming the referee, while recognizing the insolvency
of the defendant, observed:
"I nevertheless do not think that a presumption of intent to
prefer should be indulged against an insolvent debtor by the
mere act of paying certain creditors small sums in the usual
course of business, and apparently in the effort to keep its busi-
350 PREREQUISITES TO ADJUDICATION
aess going, unless there is other and further evidence showing
a specific intent to thereby give such creditors an undue pref-
erence over others, although such might be the effect of the
payment. ' '
Again, in Driggs v. Moore, 3 N. B. R. 602, Fed. Cas. No. 4,083,
it was held that payments, made in the usual and ordinary course
of trade, and at the time the debt matures, and in the usual
mode of paying debts, are prima facie valid.
These citations are perhaps ample to show that the authorities
are not in entire accord upon this question. From their consid-
eration we have reached the conclusion that even though a bank-
rupt has knowledge of his insolvency, if the payment is trivial
and is made for the current and obvious expenses of one's daily
life and habits, there is no hard and fast rule which will oblige
the court to regard the transaction inimical to the bankruptcy
law; nor, by parity of reasoning, do we deem the court obliged
to conclude, because the other creditors might each have received
an infinitesimal benefit, if the payment had not been made, that
such payment necessarily, naturally, and logically shows an
intent to prefer such creditor over the other creditors. Indeed,
the payment here upon which the creditors rely seems to afford
a fit occasion for the application of the maxim, *'De minimis
non curat lex." Since the debts of Beach amounted to $13,000,
and since his payment to Keith was of only $2.75, the disad-
vantage which each creditor suffered because of such payment
was less than 1/4000 of his debt. For instance, one of the peti-
tioning creditors, whose claim amounts to $84, would receive but
a fraction over 1 cent. Can such a payment, then, justify the
presumption that Beach intended a preference? We do not
think so. The transaction was a bagatelle. It was neither im-
moral nor fraudulent. To apply the general presumption here
would make it dangerous for a person in insolvent circumstances
to buy and pay for a sack of fliour, a flitch of bacon, or a bag
of potatoes. To avoid bankruptcy, his family must starve. The
soda water and lemonade to the value of 50 cents, with which
Beach allays the thirst proper to his clime, were inexpensive
refreshments, as innocuous as the "cup which cheers, but not
inebriates." More debatable is the effect of coca cola. But his
purchase of this mysterious elixir amounted to only 5 cents. The
bar of soap, worth five cents, is without the pale of judicial dis-
cussion. It is true that there was a dressed doll, the price of
which was more extravagant. This was $2.15. Beach testifies
PREFERENCES 351
that it was * ' for a present. ' * The evidence fails to disclose upon
whom this marvel of art and fashionable millinery was bestowed.
It, however, appears that Beach is a bachelor — an "old bach-
elor," we may presume — and perhaps the "dressed doll" made
happy the heart of some tiny maiden, whose lovely face and
graceful form brought back to the veteran and hapless heart of
the alleged bankrupt the memory of features which "love used
to wear, ' ' in the words of Ossian, * * sweet and sad to the soul,
like the memory of joys that are gone. ' '
We conclude, therefore, that the payment of 60 cents for soda
water, coca cola, and one bar of soap, and $2.15 for a dressed
doll, in the absence of all other evidence to that end, does not
raise the presumption of an intent to give to the creditor paid a
preference over his other creditors. Since it appears from the
record that this is the only transaction upon which bankruptcy
is now charged or assigned, the finding of the master on the
second alleged ground of bankruptcy, namely, the payment to
Keith of $2.75, is overruled.
A decree wiU be entered accordingly.
V
(g) Reasonable Cause to Believe that a Preference Would he
Effected
In re F. M. & S. Q. CARLILE
199 Fed. 612
(District Court, D. North Carolina. September 30, 1912)
CONNOR, District Judge. The controversy presented by the
record relates to the validity of the transfer of certain choses
in action made to the receiver of the Bank of Tarboro by the
bankrupts withinfour months prior to the institution oJ pro-
ceedings in bankruptcy, to secure an overdraft due the bank.
• • «
Proceeding, therefore, to a disposition of the case as disclosed
by the transcript, I note that the referee bases his conclusion upon
the language of § 60a, quoting it in his opinion. The solution
of the question presented by the contention made by the trustee
is dependent upon the construction of § 606. A preference under
§ 60a is not voidable, nor does it, under § 57 g, as amended by the
act of 1903, prevent the preferred creditor from proving his
claim for any balance remaining due after exhausting the prop-
erty transferred. It will be noted that § 57g, as originally en-
352 PREREQUISITES TO ADJUDICATION
acted, precluded a creditor, who had received a preference as
defined by § 60a, from proving his debt until he had surrendered
the property transferred. Subsequent to, and by reason of, the
decision in Pirie v. Chicago Title & Trust Co., 182 U. S. 438,
21 Sup. Ct. 906, 45 L. ed. 1171, Congress amended § o7g, so that
only a preference as defined by § 606 prevented the creditor from
proving the balance of his debt without surrendering his pref-
erence.
At no time did the Bankrupt Act of 1898 give to the trustee
the right to recover property transferred within four months
prior to proceedings in bankruptcy, unless the elements pre-
scribed by § 606 were shown to exist. A preference, as defined by
§ 60a, is without any effect upon the right of the creditor, since
the amendment of 1903 to § 57g. It would be a strange conclusion
that a simple preference under § 60a. entitled the trustee to
recover the property transferred, when, under %57g, as amended,
he can prove his debt without surrendering the preference.
We are thus brought to inquire whether, under the provisions
of § 606, the testimony before the referee entitles the trustee to
recover the property transferred by the bankrupt on August 11,
1911 ; that is, does the testimony establish the allegation that the
transfer constituted a voidable preference ? § 606 defines such
a preference, so far as applicable to this case, as (1) a transfer
of property, (2) within four months before the filing of the peti-
tion in bankruptcy, (3) by a person who is insolvent, (4) when
the person to whom the transfer is made shall then have reason-
able cause to believe that the enforcement of such transfer will
effect a preference. When these essential elements are found in a
transaction between a bankrupt and his creditor, it is provided
that —
"it shall be voidable by the trustee and he may recover the prop-
erty or its value. ' '
For the definition of the word "preference," as used in § 606,
recourse must be had to § 60a. We there find that, in order that
a transfer, etc., shall operate as a preference, within the meaning
of the act, it must —
"enable the creditor, to whom the transfer is made, to obtain a
greater percentage of his debt than any other such creditors of
the same class."
I Thus it is seen that § 60a defines a "preference," §606 a
["voidable preference," § 67e a "fraudulent preference," under
[the Bankrupt Act, and § 70e a "transfer of property," fraudu-
PREFERENCES 353
lent under the state law. For the definition of a preference,
which is declared to be an act of bankruptcy, see § 3. Without
question, the evidence before the referee establishes a preference
within the terms of § 60a, leaving in controversy the sole ques-
tion whether it brings such preference within the terms of § 60&,
The_burden_of^roof is upon the trustee. Loveland on Bank-
ruptey (4th'edT§ 544; Barbour v. Priest, 103 U. S. 293, 26 L.
ed. 478. Judge Sanford in Kim merle v. Farr, 189 Fed. 295, 111
C. C. A. 27 ( Sixth Circuit) , says that the burden of proof is on
the trustee in bankruptcy, seeking to avoid as a preference a
transfer of property made by a bankrupt, to prove by sufficient
evidence all of the essential elements of a voidable preference.
The question discussed in that case, whether it is essential to
show that the creditor knew of the debtor's intention to create
a preference, is eliminated by the amendment of 1910 ; the words
inserted in § 60& by the amendment of 1903, "had reasonable ;?/•
cause to believe that it was intended thereby to give a prefer-
ence," being stricken out. Loveland on Bankruptcy (4th ed.)
§'l92.
Did Pennington, or his attorney, who drew and took the trans-
fer, have reasonable cause to believe that the effect of the
transfer would be to give a preference, as defined by § 60a?
F. M, Carlile was the only witness examined before the referee.
He says that, when Pennington was appointed receiver of the
Bank of Tarboro, in June, 1911, the firm of F. M. & S. Q. Carlile
was overdrawn $1,263.78; that they owed the bank $700 by note,
and another note of $1,000 secured by mortgage on real estate ;
that they executed the transfer to Pennington in the office of
Mr. Gilliam, one of his attorneys, for notes and accounts amount-
ing to about $1,050, and a promise to deliver in ten days there-
after $300 more; that at the time he executed the transfer he
thought his firm was entirely solvent, and so represented to Mr.
GiUiam ; that he stated to Mr. Gilliam that they had $1,000 sol-
vent accounts, $570 notes secured by mortgages, $1,700 cash ac-
count (about), $5,000 stock (about), $800 hearse and wagon
(about), and at the same time represented that the liabilities of
said firm, other than its indebtedness to the Bank of Tarboro,
did not exceed $3,000 ; that at that time he had no idea that the
firm would go into bankruptcy within four months from said
date; that he assured Mr. Gilliam that, by giving them the ex-
tension, they would be able to liquidate all of the firm's obliga-
tions; that Mr. Pennington asked him about securing the
H. & A. Bankruptcy — 23
354 PREREQUISITES TO ADJUDICATION
overdraft — said he would grant the extension if the collaterals
were put up. This is all that was said about it. He did not say
that if they were not put up he would ' ' push them for it, ' ' Their
purpose in making the transfer was not to give the bank a pref-
erence, but to secure the overdraft. There is no evidence that
Pennington had any information in regard to the financial con-
dition of Carlile.
The only other evidence introduced was the schedule, filed by
the bankrupts, October 14, 1911, from which it appears that they
owed debts, secured, $5,305 (it appears that the property mort-
gaged was of sufficient value to pay these debts) , and $5,627.04
unsecured debts. The schedules show stock valued at $4,000, notes
secured by title retained to furniture purchased $1,300, notes
for pianos, title retained, $670, hearse and wagon $515, and debts
due on open accounts $1,500. It does not appear that either Mr,
Pennington or Mr. Gilliam had any knowledge of, or information
in regard to, the indebtedness of the firm, other than that due
the bank, or any other knowledge or information in regard to
the character, etc, of the property other than that given by
bankrupts. Certainly, if they were justified in accepting that
information — that is, if they had no good and sufiicient reason to
doubt the truth of it — there was nothing in the statement calcu-
lated to create a reasonable belief that the firm was insolvent;
that is, that the bankrupts were making false statements, and
that, in accepting the transfer, they were receiving a preference.
The referee finds, I presume, from the account of the trustee,
that he has not, after diligent effort, been able to realize more
than $3,624 cash from the property. This finding, however, is
of little probative value in ascertaining what information Mr.
I Pennington or his attorney had on the subject on August 11,
I 1911. There is no evidence in the record in respect to the moral
character of the bankrupts, the manner in which they had been
conducting business, or their commercial credit. Nor is there any
evidence in regard to the extent or character of their dealings
with the bank — ^whether their account was frequently overdravim,
or how long the overdraft had existed. There is nothing to
indicate that the receiver had been, prior to his appointment,
connected with the bank, or was acquainted with the relations
existing between the bank and the bankrupts. It does not appear
that the receiver did anything more than a prudent and faithful
discharge of his duty demanded. While the overdraft was large
for men of their worth, we may take notice of the fact that, for
PREFERENCES 355
some reason, the bank went into the hands of the receiver in mid-
summer, at a season when, in this section, cash business is dull
and money scarce. While prudent banking would suggest that
customers be called upon to either cover the overdraft or give
security, yet the mere fact that a customer of a bank, carrying
a stock of $4,000, etc., has overdrawn for $1,263, would not, of
itself, be calculated to create a reasonable apprehension of in-
solvency.
The correct rule is well stated by Mr. Justice Bradley in Grant
V. National Bank, 97 U. S. 80, 24 L. ed. 971, in which he says:
"Some confusion exists in the cases as to the meaning of the
phrase 'having reasonable cause to believe such a person is insol-
vent. ' Dicta are not wanting which assumes that it has the same
meaning as if it had read ' having reasonable cause to suspect
such person is insolvent.' But the two phrases are distinct in
meaning and effect. It is not enough that a creditor has some
cause to suspect the insolvency of his debtor ; but he must have
such a knowledge of facts as to induce a reasonable belief of
his debtor's insolvency, in order to invalidate a security taken
for his debts. To make mere suspicion a ground of nullity in
such a case would render the business transactions of the com-
munity altogether too insecure. It was never the intention of the
framers of the act to establish any such rule. A man may have
many grounds of suspicion that his debtor is in failing circum-
stances, and yet have no cause for a well-grounded belief of the
fact. He may be unwilling to trust him further, he may feel
anxious about his claim, and have a strong desire to secure it, and
yet such belief as the act requires may be wanting. Obtaining
additional security, or receiving payment of a debt, under such
circumstances, is not prohibited by the law. * * * The
debtor is often buoyed up by the hope of being able to get
through with his difficulties long after his case is, in fact, des-
perate, and his creditors, if they knew anything of his embarrass-
ments, either participate in the same feeling, or at least are
willing to think that there is a possibility of his succeeding. To
overhaul and set aside all his transactions with his creditors,
under such circumstances, because there may exist some grounds
of suspicion of his inability to carry himself through, would make
the bankrupt law an engine of oppression and injustice. ' '
In the language of Mr. Justice Bradley in the opinion cited,
the evidence before the referee falls far short of establishing that
the receiver had reasonable cause to believe that Carlile was in-
PREREQUISITES TO ADJUDICATION
solvent at the time the transfer was executed. Mr. Collier, in his
excellent work on Bankruptcy, at p. 669, says :
"It has been held that it is not necessary for a creditor to
know, or have reasonable cause to believe, that the debtor is
insolvent when a mortgage or pledge is made within the four
months period to secure an antecedent debt. ' '
In support of this guarded statement the author cites In re
Mills (D. C.) 162 Fed. 42, 20 Am. Bankr. Rep. 501. An exami-
nation of the "headnote" (No. 4) sustains the statement of Mr.
Collier and the referee's conclusion in this case. An examina-
tion of the case, as reported, explains how the error found its
way into the "headnote." The referee, in an elaborate report,
finds as a fact that the creditor had, not only reasonable cause
to believe that the debtor was insolvent, but that the officers of
the trust company well knew that he was insolvent. On p, 48 of
162 Fed. the referee says :
"The referee further holds that, when a mortgage or pledge
is made to secure an antecedent debt, within four months of
the filing of petition in bankruptcy against him, it is not neces-
sary that the creditor should have reasonable cause to believe
that the debtor was then insolvent ; a different rule applying to
such a case from that which governs when there is an absolute
payment of a pre-existing debt" — saying that the law is "di-
rectly so held by the Circuit Court of Appeals in this (the
Fourth) circuit, in Farmers' Bank v. Carr, 127 Fed. 690 [62
CCA. 446]."
An examination of the case does not sustain the construction
put upon it. It does not very clearly appear from the report
how the question arose, but it is manifest, from Judge Simon-
ton's opinion, that the conclusion reached by the court was based
upon the fact that the preferred creditor had notice of such
facts as should have created a reasonable belief of the debtor's
insolvency. It will be found that the cases cited by the referee
(McNair v. Mclntyre, 113 Fed. 113, 51 C C A. 89 ; In re Hill
[D. C] 140 Fed. 984; In re Pease [D. C] 129 Fed. 446) do not
sustain his conclusion. So much of the report (p. 48) as dis-
cusses this question is entirely unnecessary and surplusage, be-
cause he had found the fact of actual notice of insolvency upon
which the ultimate conclusion was based. It will be noted that,
when the report came before Judge Purnell, District Judge, he
wrote no opinion, simply stating that "the findings of fact are
supported by ample proof" and "are in all respects confirmed."
PREFERENCES 357
It is true that he also says that the conclusions of law are also
confirmed; but a reasonable construction of the Last words used
by the judge restricts the conclusion of law to such as are applic-
able to the findings of fact. The case, as thus explained, is in
harmony with the uniform current of authority and the manifest
meaning of the statute.
I have deemed it proper to make this reference to the error
into which one, following the "headnote" and the language of
the referee in that ease, may be led because of the fact that the
case is from this district. In view of the fact that the parties
have submitted to the jurisdiction, and by their actions waived
all questions of regularity of procedure, I have discussed and
decided the questions presented, thus saving time and expense
in the final settlement of the estate. The error into which the
referee fell is the result of supposing that the case was governed
by § 60a, instead of § 606. He does not find, because in his view
of the law it was not material to inquire, whether the receiver
or his attorney had a reasonable ground to believe that Carlile
was insolvent. I am of the opinion that he was correct in finding
that the transfer operated as a preference as defined by § 60a.,
but was in error in holding that this entitled the trustee to re- ^
cover the property. I am further of the opinion that the evidence
does not establish a voidable preference within the definition of
§ 606. There is no suggestion that the transfer was void under
§ 67e. The trustee, therefore, is not entitled to recover the prop-
erty in controversy.
The order of the referee is reversed. ^ivry-
HEWITT V. BOSTON STRAW BOARD CO.
214 Mass. 260, 101 N. E. 424
(Supreme Judicial Court of Massachusetts. April 1, 1913)
Contract by the trustee in bankruptcy of the Corperdix Paper
Tube Company, a corporation, for the amount of a preference
alleged to have been paid to the defendant by the bankrupt.
BRALEY, J. It having appeared that at a fair valuation the
bankrupt's property at the date of transfer was insufficient in
amount to pay its debts, the judge was warranted in finding it
to have been insolvent as defined by the act itself. Act 1898,
358 PREREQUISITES TO ADJUDICATION
c. 541, § 1, subsec. 15 ; Eau Claire Nat. Bank v. Jackman, 204
U. S. 522, 532, 27 Sup. Ct. 391, 51 L. ed. 596. See Bailey v.
Wood, 211 Mass. 37, 44, 45, 97 N. E. 902, Ann. Cas. 1913A, 950.
But even if the corporation was insolvent, the plaintiff must
show that * ' the person receiving it or to be benefited thereby, or
his agent acting therein, shall then have reasonable cause to be-
lieve that the enforcement of such * * * transfer would
effect a preference. * * *" Act 1898, c. 541, §606, as
amended by Act 1910, c. 412, § 11 ; Kaufman v. Tredway, 195
U. S. 271, 25 Sup. Ct. 33, 49 L. ed. 190 ; Beals v. Quinn, 101
Mass. 262; Otis v. Hadley, 112 Mass. 100. The bankrupt's prop-
erty had been attached by the defendant to enforce payment of
an antecedent unsecured indebtedness for goods sold and deliv-
ered, and after effecting a sale of nearly one-half of the manu-
facturing plant, the bankrupt transferred within four months
prior to the date of adjudication, and in part satisfaction of the
debt, three promissory notes received in part payment from the
purchaser. MiHt:
Where there is reasonable cause to believe, that at the date
of transfer within the statutory period the debtor is insolvent,
and payment is accepted of a debt overdue, it is immaterial
whether the creditor actually believes what may have been dis-
closed as to the true state of ailairs. If he prefers to draw in-
ferences favorable to himself, and to ignore information which
would have led to knowledge that his debtor was in failing cir-
cumstances, he cannot set up his own judgment to the contrary
even if honestly entertained, as a reason why he should be per-
mitted to retain a prohibited advantage. Forbes v. Howe, 102
Mass. 427, 3 Am. Rep. 475 ; Whipple v. Bond, 164 Mass. 182, 41
N. E. 203 ; In re George, 1 Lowell, 409, 411, Fed. Cas. No. 5,325;
Toof V. Martin, 13 Wall. 40, 20 L. ed. 481.
By the express words of the amendatory act, which are merely
declaratory of the rule of law, that knowledge possessed by an
agent may be imputed to his principal, the d,efendant is bound
by the information acquired by its attorney who made the attach-
ment and acted for it in effecting the settlement. Rogers v.
Palmer, 102 U. S. 263, 26 L. ed. 164 ; Sartwell v. North, 144 Mass.
188, 10 N. E. 824. The judge from the statements of the bank-
rupt's officers well might find that the defendant's attorney upon
being fully informed as to the impaired resources of the bankrupt
company, and understanding the object as well as the legal
PREFERENCES 359
effect of the transfer, expressed himself as willing to take the h
hazard of a recovery back by the trustee, if bankruptcy inter- i
vened. The bankrupt and the defendant must be presumed toj|
have known that what had been done resulted in a preference, '
even if the form of transfer consisted of securities received by
the bankrupt from a third party. Sawyer v. Turpin, 2 Lowell,
29, Fed. Cas. No. 12,410 ; Western Tie & Lumber Co. v. Brown,
196 U. S. 502, 509, 25 Sup. Ct. 339, 49 L. ed. 571 ; Dickinson v.
National Security Bank of Richmond, 110 Fed. 353, 49 C. C. A.
84; Bankr. Act 1898, c. 541, §60, subsecs. "a" and "b," as
amended by Act 1903, c. 487, § 13, and Act 1910, c. 412, § 11.
It is maintained, however, that the evidence does not disclose
the class of creditors to which the defendant belonged, and there
is no preference, because it cannot be determined whether a
greater percentage of its debt had been obtained than the amount
which other creditors of the same class would receive. Act 1898,
c. 541, §60, subsec, ''a." The defendant at the date of the
transaction ranked with the class of unsecured creditors shown
by the list of accounts payable, which apparently were provable
debts. It is not even suggested that they could have been paid
in full by the bankrupt, although entitled to share equally with
the defendant in the distribution of its property. Nor is it con-
tended that the trustee has received sufficient assets to enable
him to satisfy fully the claims which have been allowed. Kim-
ball V. Dresser, 98 Me. 519, 57 Atl. 787. A transfer of the char-
acter shown materially diminished the bankrupt's estate. If
allowed to stand it would defeat the purpose of the Bankruptcy
Act, which, after priorities are satisfied, is the distribution of
the bankrupt's property equally among all his creditors, whether
secured or unsecured. Act 1898, c. 541, §§ 63, 64, 67 and the
several subsections ; In re Hapgood, 2 Lowell, 200, Fed. Cas. No.
6,044 ; Swarts v. Fourth Nat. Bank of St. Louis, 117 Fed. 1, 54
C. C. A. 387 ; Jackman v. Eau Claire Nat. Bank, 125 Wis. 465,
479, 104 N. W. 98, 115 Am. St. Rep. 955 ; Nat. Bank of Newport
V. Nat. Herkimer County Bank, 225 U. S. 178, 32 Sup. Ct. 633,
56 L. ed. 1042.
The plaintiff accordingly can recover the amount of the notes // rAoA
with interest from the date of the preferential payment. Clarion '
First Nat. Bank v. Jones, 21 Wall. 325, 22 L. ed. 542.
Exceptions overruled.
360 PREREQUISITES TO ADJUDICATION
(h) Surrender of Preference
' / KEPPEL V. TIFFIN SAVINGS BANK
197 U. S. 356, 49 L. ed. 790, 25 Sup. Ct. 443
(United States Supreme Court. April 3, 1905)
Charles A. Goetz became a voluntary bankrupt on October 12,
1900. George B. Kieppel, the trustee, sued the Tiffin Savings
Bank in an Ohio court to cancel two real-estate mortgages exe-
cuted by Goetz, one to secure a note for $4,000 and the other a
note for $2,000. The mortgage to secure the $4,000 note was
made more than four months before the adjudication in bank-
ruptcy. The mortgage securing the $2,000 note was executed a
few days before the bankruptcy, the mortgagor being at the
time insolvent and intending to prefer the bank. The bank de-
fended the suit, averring its good faith and asserting the validity
of both the securities. In a cross petition the enforcement of
both mortgages was prayed. The^court held the mortgage secur-
ing the $4,000 note to be valid, and the mortgage, secuxing the
$2,000 note to be void. The trustee appealed to a circuit court,
where a trial de ■wm'o was had. At such trial the attorney for
the bank stated to the court that the bank waived any claim
to a preference as to the $2,000 note, but that he could not assent
to a judgment to that effect. A judgment was entered sustain-
ing the security for the $4,000 note and avoiding that for the
$2,000 note.
The bank subsequently sought to prove that it was a creditor
of the estate upon the note for $2,000, and upon two other unse-
cured notes, aggregating $835. The referee refused to allow
the proof, upon the ground that, as the bank had compelled the
trustee to sue to cancel the security, and a judgment nullifying
it had been obtained, the bank had lost the right to prove any
claim against the estate. The district judge, upon review, re-
versed this ruling. The Circuit Court of Appeals to which the
issue was taken, after stating the case as above recited, certified
questions for our determination.
Mr. Justice WHITE, after making the foregoing statement,
delivered the opinion of the court :
The following are the questions asked by the Court of Appeals :
''First. Can a creditor of a bankrupt, who has received a
merely voidable preference, and who has in good faith retained
PREFERENCES 361
such preference until deprived thereof by the judgment of a
court upon a suit of the trustee, thereafter prove the debt so
voidably preferred?
"Second. Upon the issue as to the allowance of the bank's
claims, was it competent, in explanation of the judgment of the
Ohio Circuit Court in favor of the trustee and against the bank
in respect to its $2,000 mortgage, to show the disclaimer made in
open court by the attorney representing the bank, of any claim
of preference, and the grounds upon which the bank declined to
consent to a judgment in favor of the trustee ?
** Third. If the failure to 'voluntarily' surrender the mort-
gage given to secure the $2,000 note operates to prevent the allow-
ance of that note, does the penalty extend to and require the
disallowance of both the other claims?"
Before we develop the legal principles to the solution of the
first question, it is to be observed that the facts stated in the
certificate and implied by the question show that the bank acted
in good faith when it accepted the mortgage and when it subse-
quently insisted that the trustee should prove the existence of the
facts which, it was charged, vitiated the security. It results
that the voidable nature of the transaction alone arose from
§ 67e of the act of 1898, invalidating "conveyances, transfers,
or encumbrances of his property made by a debtor at any time
within four months prior to the filing of the petition against him,
and while insolvent, which are held null and void as against the
creditors of such debtor by the laws of the state, territory, or
district in which such property is situate" [30 Stat, at L. 565,
c. 541, U. S. Comp. Stat. 1901, p. 3449] , and giving the assignee
a right to reclaim and recover the property for the creditors of
the bankrupt estate.
On the one hand, it is insisted that a creditor who has not
surrendered a preference until compelled to do so by the decree
of a court cannot be allowed to prove any claim against the
estate. On the other hand, it is urged that no such penalty is
imposed by the bankrupt act, and hence the creditor, on an
extinguishment of a preference, by whatever means, may prove
his claims. These contentions must be determined by the text,
originally considered, of § 57g of the bankrupt act, providing
that "the claims of creditors who have received preferences shall
not be allowed unless such creditors shall surrender their pref-
erences." We say by the text in question, because there is no-
where any prohibition against the proof of a claim by a creditor
362 PREREQUISITES TO ADJUDICATION
who has had a preference, where the preference has disappeared
as the result of a decree adjudging the preferences to be void,
unless that result arises from the provision in question. We say
also from the text as originally considered, because, although
there are some decisions, under the act of 1898, of lower Federal
courts, which are referred to in the margin,^^ denying the right
of a creditor to prove his claim, after the surrender of a prefer-
ence by the compulsion of a decree or judgment, such decisions
rest not upon an analysis of the text of the act of 1898 alone con-
sidered, but upon what were deemed to have been analogous pro-
visions of the act of 1867 and decisions thereunder. We omit,
therefore, further reference to these decisions, as we shall here-
after come to consider the text of the present act by the light
thrown upon it by the act of 1867 and the judicial interpretation
which was given to that act.
The text is, that preferred creditors shall not prove their claims
unless they surrender their preferences. Let us first consider
the meaning of this provision, guided by the cardinal rule which
requires that it should, if possible, be given a meaning in accord
with the general purpose which the statute was intended to
accomplish.
We think it clear that the fundamental purpose of the provi-
sion in question was to secure an equality of distribution of the
assets of a bankrupt estate. This must be the case, since, if a
creditor having a preference retained the preference, and at the
same time proved his debt and participated in the distribution
of the estate, an advantage would be secured not contemplated
by the law. Equality of distribution being the purpose intended
to be effected by the provision, to interpret it as forbidding a
creditor from proving his claim after a surrender of his prefer-
ence, because such surrender was not voluntary, would frustrate
the object of the provision, since it would give the bankrupt
estate the benefit of the surrender or cancellation of the prefer-
ence, and yet deprive the creditor of any right to participate,
thus creating an inequality. But it is said, although this be
true, as the statute is plain, its terms cannot be disregarded by
allowing that to be done which it expressly forbids. This rests
upon the assumption that the word ''surrender'' necessarily
42— Ee Greth, 112 Fed. 978; Ee
Keller, 109 Fed. 118, 126, 127; Ee
Ownings, 109 Fed. 623.
PREFERENCES 363
implies only voluntary action, and hence excludes the right to
prove where the surrender is the result of a recovery compelled
by judgment or decree.
The word "surrender," however, does not exclude compelled
action, but, to the contrary, generally implies such action. That
this is the primary and commonly accepted meaning of the word
is shown by the dictionaries. Thus, the Standard Dictionary
defines its meaning as follows: "1. To yield possession of to
another upon compulsion or demand, or under pressure of a su-
perior force ; give up, especially to an enemy in warfare ; as, to
surrender an army or a fort." And in Webster's International
Dictionary the word is primarily defined in the same way. The
word, of course, also sometimes denotes voluntary action. In the
statute, however, it is unqualified, and generic, and hence em-
braces both meanings. The construction which would exclude
the primary meaning, so as to cause the word only to embrace
voluntary action, would read into the statute a qualification, and
this in order 'to cause the provision to be in conflict with the pur-
pose which it was intended to accomplish, — equity among cred-
itors. But the construction would do more. It would exclude,
the natural meaning of the word used in the statut^^, in order
Jx> create a penalty, aitnough nowhere expressly or even by clear
implication found in the statute. This would disregard the ele-
mentary rule that a penalty is not to be readily implied, and, on
the contrary, that a person or corporation is not to be subjected
to a penalty unless the words of the statute plainly impose it.
Tiffany v. National Bank, 18 WaU. 409, 410, 21 L. ed. 862, 863.
If it had been contemplated that the word "surrender" should
entail upon every creditor the loss of power to prove his claims
if he submitted his right to retain an asserted preference to the
courts for decision, such purpose could have found ready expres-
sion by qualifying the word ' ' surrender " so as to plainly convey
such meaning. Indeed, the construction which would read in the
qualification would not only create a penalty alone by judicial
action, but would necessitate judicial legislation in order to de-
fine what character and degree of compulsion was essential to
prevent the surrender in fact from being a surrender within the
meaning of the section.
It is argued, however, that courts of bankruptcy are guided
by equitable considerations, and should not permit a creditor
who has retained a fraudulent preference until compelled by a
court to surrender it, to prove his debt, and thus suffer no other
564 PREREQUISITES TO ADJUDICATION
loss than the costs of litigation. Thefallacy lies in assuming that
the courts have power to inflict penalties, although the law haJT
not imposed them. Moreover, if the statute be inteFpreted as it
IS insisted it should be, there would be no distinction between
honest and fraudulent creditors, and therefore every creditor who
in good faith had acquired an advantage which the law did not
permit him to retain would be subjected to the forfeiture simply
because he had presumed to submit his legal rights to a court for
determination. And this accentuates the error in the construc-
tion, since the elementary principle is that courts are created to
pass upon the rights of parties, and that it is the privilege of the_
citizen to submit his claims to the judicial tribunals, — especially
(in the absence of malice and when acting with probable cause, —
without subjecting himself to penalties of an extraordinary
I character. The violation of this rule, which would arise from
the construction, is well illustrated by this case. Here, as we
have seen, it is found that the bank acted in good faith, without
knowledge of the insolvency of its debtor and of wrongful intent
on his part, and yet it is asserted that the right to prove its law-
ful claims against the bankrupt estate was forfeited simply be-
cause of the election to put the trustee to proof, in a court, of
the existence of the facts made essential by the law to an invali-
dation of the preference.
We are of opinion that, originally considered, the surrender
clause of the statute was intended simply to prevent a creditor
from creating inequality in the distribution of the assets of the
estate by retaining a preference, and at the same time collecting
dividends from the estate by the proof of his claim against it,
and consequently that whenever the preference has been aban-
doned or yielded up, and thereby the danger of inequality has
been prevented, such creditor is entitled to stand on an equal
footing with other creditors and prove his claims.
Is the contention well founded that this meaning which we de-
duce from the text of the surrender clause of the present act is
so in conflict with the rule generally applied in bankruptcy acts,
and is, especially, so contrary to the act of 1867 and the con-
struction given to it, that such meaning cannot be considered to
have been contemplated by Congress in adopting the present
act, and hence a contrary interpretation should be applied?
* * *
It follows that the construction which we at the outset gave
to the text of the act of 1898, instead of being weakened, is abso-
PREFERENCES 365
lutely sustained by a consideration of the act of 1867, both be-
fore and after the amendment of 1874, and the decisions con-
struing the same, since in the present act, as we have said, there
is nowhere found any provision imposing even the modified pen-
alty which was expressed in the amendment of 1874. The con-
tention that, because the act of 1898 contains a surrender clause,
therefore it must be assumed that Congress intended to inflict the
penalty originally imposed by § 39 of the act of 1867, must rest
upon the erroneous assumption that that penalty was the result
of the surrender clause alone. But this, as we have seen, is a
misconception, since from the great weight of judicial authority
under the act of 1867, as well as by the express enactment of
Congress in the amendment of 1874 and the decisions which con-
strued that amendment, it necessarily results that the penalty
enforced under the act of 1867 arose not from the surrender
clause standing alone, but solely from the operation upon that
clause of the express prohibition contained in § 39 of that act.
When, therefore, Congress in adopting the present act omitted
to re-enact the provision of the act of 1867, from which alone the
penalty or forfeiture arose, it cannot in reason be said that the
omission to impose the penalty gives rise to the implication that
it was the intention of Congress to re-enact it. In other words,
it cannot be declared that a penalty is to be enforced because the
statute does not impose it.
And, irrespective of this irresistible implication, a general con-
sideration of the present act persuasively points out the purpose
contemplated by Congress in refraining from re-enacting the
penalty contained in § 39 of the act of 1867. Undoubtedly the
preference clauses of the present act, differing in that respect
from the act of 1867, as is well illustrated by the facts of this
case, include preferences where the creditor receiving the same
acted without knowledge of any wrongful intent on the part of
the debtor, and in the utmost good faith. Pirie v. Chicago Title
& T. Co., 182 U. S. 454, 45 L. ed. 1179, 21 Sup. Ct. Rep. 906.
Having thus broadened the preference clauses so as to make
them include acts never before declared by Congress to be illegal,
it may well be presumed that Congress, when it enacted the sur-
render clause in the present act, could not have contemplated
that that clause should be construed as inflicting a penalty upon
creditors coming within the scope of the enlarged preference
clauses of the act of 1898, thereby entailing an unjust and
unprecedented result.
^^.^ju-^t- m ^ f^
~\A>."-^^ 1
LfU,U CnX^fu^ /iftwr: t^ dU^,<4^ (pf^'l-^/i*
366 PREREQUISITES TO ADJUDICATION
Our coiiclusian, therefore, is that the first question propounded
must be answered in the affirmative, and that the two other ques-
tions require no response.
And it is ordered accordingly .^^
dr\
3. ASSIGNMENTS FOB BENEFIT OF CREDITORS
/ WEST CO. V. LEA
174 U. S. 590, 43 L. ed. 1098, 19 Sup. Ct. 836
.^ [See this case given ante, p. 104]
/• J '^ MISSOURI-AMERICAN ELECTRIC CO. v. HAMILTON-
'>^^^ BROWN SHOE CO.
9^
165 Fed. 283, 91 C. C. A. 251
(Circuit Court of Appeals, Eighth Circuit. November 16, 1908)
SANBORN, Circuit Judge. This is an appeal from an adjudi-
cation in bankruptcy of the Missouri-American Electric Com-
pany, a corporation of the state of Missouri, upon a creditors'
petition filed February 16, 1907, upon the grounds (1) that on
October 7, 1906, the corporation, while insolvent, made a general
assignment of all its property to the American Electric Company,
a corporation of the state of New Jersey, and (2) that on October
17, 1906, the Missouri Company, while insolvent, paid to the
American Company, one of its creditors, $18,000, with intent to
prefer the latter to its other creditors, and that the latter com-
pany at that time had reasonable cause to believe that it was in-
tended to give it a preference over other creditors similarly
situated by this payment. There was no evidence of any pay-
ment of $18,000 or any like sum to the American Company
within four months of the filing of the petition, except the trans-
fer of the money and property which was subject to the written
instruments executed on October 17, 1906, which the appellees
insist constitute a general assignment for the benefit of the credit-
ors of the Missouri Company under § 3a(4) of the bankruptcy
law of 1898 (Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp.
St. 1901, p. 3422] ) . The decision of the merits of the case turns
upon the legal effect of those writings. The charges of the com-
43 — The dissenting opinion of Mr. and Mr. Justice Brown concurred
Justice Day is omitted. Mr. Jus- in the dissent.
tice Haelan, Mr. Justice Brewer,
ASSIGNMENTS 367
mission of the acts of bankruptcy were denied by the Missouri
Company, the issues were tried by the District Court, evidence
which fills more than 200 pages of the printed transcript was
adduced, the court closed the hearing while the Missouri Com-
pany was still introducing its evidence in defense and before it
had rested, that company excepted to this premature closing of
the case, and the court rendered a decree adjudging it a bank-
rupt. * * *
Was the assignment of October 17, 1906, a general assignment!
for the benefit of the creditors of the Missouri Company within
the meaning of § 3a (4) of the bankruptcy act of 1898 and hence
an act of bankruptcy? A general assignment conveys all or
substantially all the property of the debtor, while an assignment
which conveys but a portion of it is a partial assignment, and not
a general assignment. United States v. Hooe, 3 Cranch, 73, 90,
2 L. ed. 370 ; Bock v. Perkins, 139 U. S. 628, 641, 11 Sup. Ct.
677, 35 L. ed. 314; United States v. Rowland, 4 Wheat. 108, 114,j
4 L. ed. 526 ; United States v. Langton, 26 Fed. Cas. 862, 864,
No. 15,560; United States v. Clark, 25 Fed. Cas. 447, 451, No.
14,807 ; Mussey v. Noyes, 26 Vt. 462, 474, 475. This assignment
did not convey the real estate of the assignor, which was about
one-fourth of its property in value after the amount of the in-
cumbrance upon the real estate had been deducted from its total
value. It is true that the assignment transferred the proceeds
of any sale of this real estate that had been made, or that should
be made, but none had been made, and the Missouri Company
retained the absolute possession, use, control, and power of dis-
position of it. Notwithstanding the assignment the assignor re-
tained the right and the power to use, to rent, and never to sell
the real estate. An absolute transfer by a debtor of both the
legal and the equitable titles to the assignee in trust for his
creditors, so that the grantor retains no control of its use and no
power to dispose of it, is indispensable to a valid assignment of
such property for the benefit of creditors. Sandmeyer v. Dakota
Fire & Marine Ins. Co., 2 S. D. 346, 352, 50 N. W. 353, and cases
there cited ; Smith & Keating Imp. Co. v. Thurman, 29 Mo. App.
186, 191. The conveyance here in question made no such transfer
of the real estate of the debtor.
A general assignment for the benefit of creditors is ordinarily
a conveyance by a debtor without consideration from the grantee
of substantially all his property to a party in trust to collect the
amounts owing to him, to sell and convey the property, to dis-
368 PREREQUISITES TO ADJUDICATION
tribute the proceeds of all the property among his creditors, and
to return the surplus, if any, to the debtor. A conveyance of
his property by a debtor directly to his creditor, or to his credit-
ors, for their benefit, is not a general assignment for the benefit
of creditors because it raises no trust, Mussey v. Noyes, 26 Vt.
462, 474, 475 ; Anniston Iron & Supply Co. v. Anniston Rolling
Mill Co. (D, C), 125 Fed. 974. This conveyance is an assign-
ment by a debtor to its largest creditor in payment of the latter 's
debt of a part of the debtor's property in consideration of the
release of its debt by this creditor and of the latter 's agreement
to pay all other creditors of the grantor out of the proceeds of
the property assigned. The apparent purpose and effect of it is
a sale of the remainder of the part of the debtor's property de-
scribed in the assignment after all its other debts have been paid
out of it to the debtor's chief creditor in consideration of the
latter 's release and discharge of its claim against the debtor.
The controlling rule for the interpretation of written instru-
ments is that the intention of the parties should be jiidduced from
them and given effect. Bock v. Perkins, 139 U. S. 628, 635, 11
Sup. Ct. 677, 35 L. ed. 314. In the courts of the state of Mis-
souri, of the state under whose laws the grantor in this convey-
ance was organized and in which its real estate and its place of
business were situated, it is an established rule of construction
that no instrument shall be held to constitute an assignment for
the benefit of creditors unless it clearly appears either that the
grantor intended that it should so operate or that such was its
necessary legal effect. Dry Goods Co. v. Grocer Co., 68 Mo. App.
290, 295 ; Haase v. Distilling Co., 64 Mo. App. 131, 135 ; Harga-
dine v. Henderson, 97 Mo. 375, 387, 11 S. W. 218; Jaffrey v.
Mathews, 120 Mo. 317, 328, 25 S. W. 187 ; Brookshier v. Mutual
Fire Ins. Co., 91 Mo. App. 599, 605.
In Becker v. Rardin, 107 Mo. Ill, 117, 17 S. W. 892, a debtor
had conveyed to one of his creditors his stock of goods, the cred-
itor had satisfied his claim, and had agreed to pay the claims of
certain other creditors in consideration of that conveyance. The
parties further agreed in the instrument of conveyance that the
goods should be invoiced, a part at first cost and a part at their
then cash value, that, if the invoice value proved to be less than
the aggregate amount agreed to be paid by the grantee to the
creditors named therein the debtor would assign accounts re-
ceivable sufficient in amount to make up that aggregate, and
that if the invoice value should prove to be more than that aggre-
ASSIGNMENTS 369
gate, then the balance above that amount should be paid to a
third party for the benefit of other parties not named in the
instrument. The Supreme Court of Missouri held that the con-
veyance did not constitute a voluntary assignment for the benefit
of creditors.
Because the assignment of October 17, 1906, did not convey
substantially all but only a portion of the property of the Mis-
souri Company, because it did not transfer the title to its real
estate to the assignee, but left the real estate, its use, control, and
power oi disposition in the grantor, because it was the intention
of the grantor when it made the instrument to sell the remainder
of a part of its property after its other debts had been paid out
of the proceeds of that part to its chief creditor in consideration
of a discharge of its obligation to it, and it was not its purpose,
nor was it the legal effect of the assignment of October 17, 1906,
to make a general assignment of the property of the debtor for
the benefit of its creditors, our conclusion is that that instrument
was not such an assignment and its execution was not an act of
bankruptcy. The result is that the creditors failed to establish
the averments of acts of bankruptcy contained in their petition, l
and the adjudication in bankruptcy must be reversed, and the/
case must be remanded to the court below with directions to dis-
miss the petition.
It is so ordered.*^
COURTENAY MERCANTILE CO. v. FINCH Ji^^*''^'"^
194 Fed. 368, 114 C. C. A. 328
(Circuit Court of Appeals, Eighth Circuit. March 7, 1912)
WM. H. MUNGER, D. J. The Courtenay Mercantile Com-
pany, a corporation, becoming insolvent in November, 1910, exe-
cuted and delivered the following instrument:
** Minneapolis, Minn., March 3, 1911.
"Assignment, Courtenay Mercantile Co. to P. S. Preston.
"This agreement, made this 10th day of November, 1910, by
and between Courtenay Mercantile Company, a corporation, of
Courtenay, in the county of Stutsman, state of North Dakota,
party of the first part, and Percival S. Preston, of the city of
Minneapolis, county of Hennepin, and state of Minnesota, party
44 — See In re Heleker Bros. Mer-
cantile Co., 216 Fed. 963.
H. & A. Bankruptcy — 24
370 PREREQUISITES TO ADJUDICATION
of the second part, witnesseth : That the party of the first part,
in consideration of the premises and the mutual promises herein
contained and the sum of one dollar to it in hand paid by the
party of the second part, has granted, bargained, sold, conveyed,
and assigned, and by these presents does bargain, grant, sell, con-
vey, and assign, unto said party of the second part, his succes-
sors and assigns, forever, all and singular its stock of goods,
wares, and merchandise, book accounts, notes and all claims de-
mands, and ehoses in action, with all evidences thereof and
securities thereto pertaining, and all its lands, tenements, and
hereditaments, wherever situate, to have and to hold the same
unto the said party of the second part, his successors and assigns,
forever, in trust, nevertheless, for the uses and purposes follow-
ing, which the second party agrees to fulfill, to wit:
" (1) To take possession of said property, and to sell and dis-
pose of same at public or private sale, with all reasonable dili-
gence, and to convert the same into money; also to collect all
claims, demands, and bills receivable hereby assigned, or to set-
tle, compromise, and compound any thereof that are doubtful,
or to sell and dispose of the same and reduce them to money as
soon as may be, and with and out of the proceeds of such sales
and collections :
"(2) To pay and discharge all the just and reasonable ex-
penses, costs, and charges of executing and carrying into effect
the trust hereby created, including reasonable compensation to
the party of the second part for his services and expenses paid
or incurred (including counsel fees) in executing the same.
" (3) To pay and discharge in full, if the residue of such pro-
ceeds be sufficient, all the debts and liabilities due or owing by
the party of the first part, including interest thereon, to those of
his creditors who shall become parties hereto by signing this
agreement or copy thereof, and who shall in consideration of the
premises undertake and agree, upon payment made, whether in
whole or in part, as herein provided, to fully release, discharge,
and absolve the party of the first part from and of all indebted-
ness to them, or either of them, now due or owing.
* * And if the residue of said proceeds shall not be sufficient to
pay said debts and liabilities and interest in fuU, then to apply
the same so far as they will extend pro rata to the payment of
said debts and liabilities and interest. And if, after payment as
aforesaid, there shall be any surplus, to pay such surplus to the
party of the first part, his executors, administrators, or assigns.
ASSIGNMENTS 371
The words 'party of the first part' herein shall be construed to
mean parties of the first part.
' ' In witness whereof, the said party of the first part has here-
unto set his hand and seal the day and year first above written.
"Courtenay Mercantile Co.,
' ' [ Corporate Seal. ] By J. B. Durkee, President. ' '
This instrument was duly acknowledged and filed for record.
Thirty-eight creditors, whose claims aggregated a little over
$7,000, accepted the terms of the instrument. Twenty-four cred-
itors, whose claims aggregated a little over $40,000, either refused
or failed to signify their acceptance. On the 30th of January,
1911, certain creditors filed a petition in bankruptcy, praying
that the said Mercantile Company be adjudged bankrupt, charg-
ing as the act of bankruptcy that on the 10th day of November,
1910, it made a general assignment for the benefit of its creditors
to one Percival S. Preston, being the instrument heretofore men-
tioned. The Courtenay Mercantile Company filed its answer to
the petition in involuntary bankruptcy, denying that it com-
mitted the act of bankruptcy alleged, or that it was insolvent.
The case came on for trial, and was heard upon a stipulation as
to the facts — the stipulation showing that, by the instrument
above mentioned, the Courtenay Mercantile Company conveyed
to Preston all of its property of every kind and nature ; that the
above-mentioned instrument was executed by the Courtenay Mer-
cantile Company and delivered to Preston pursuant to a resolu-
tion of the board of directors of the Courtenay Mercantile Com-
pany; that Preston accepted the trust, and entered upon the
discharge of his duties as trustee. The court held that the fore-
going instrument was a general assignment within the meaning
of the bankrupt law, and hence an act of bankruptcy, and ad-
judged the company a bankrupt. The Courtenay Mercantile
Company brings the case here on appeal, and the single question
is presented as to whether the above agreement was a general
assignment within the meaning of the bankrupt law.
It is first to be observed that the instrument conveyed all of
the property of the alleged bankrupt to a trustee, who was not
a creditor, and for the benefit of creditors. No right of redemp-
tion remained, and bankrupt retained no interest, excepting to
receive whatever property, if any, should remain after the entire
payment of its indebtedness. In re Thomlinson Company, 154
Fed. 834, 83 C. C. A. 550, this court, passing upon the question
372 PREREQUISITES TO ADJUDICATION
as to what was a general assignment within the meaning of the
bankrupt law, said :
"The 'general assignment' there contemplated is to be taken
in its generic sense, and embraces any conveyance at common
law or by statute by which the parties intend to make an absolute
and unconditional appropriation of the property conveyed to
raise funds to pay the debts of the vendor, share and share alike.
Appolos V. Brady, 1 C. C. A. 299, 49 Fed. 401 ; Bartlett v. Teah
(C. C), 1 Fed. 768; In re Gutwillig (D. C), 90 Fed. 475; Id.,
34 C. C. A. 377, 92 Fed. 337; In re Sievers (D. C), 91 Fed. 366;
Davis V. Bohle, 34 C. C. A. 372, 92 Fed. 325. Such a conveyance
inevitably thwarts operation of the bankruptcy act. * * *
The instrument in question does not contain any of the elements
of a mortgage, as insisted upon by bankrupt 's counsel. The idea
that it was intended as a security for the ultimate payment of
the debts of the vendor, or that a reservation of a right to redeem
whenever the vendor shall pay its debts was intended, is not
remotely suggested by any of the terms of the instrument; in
other words, there is no right of redemption reserved. The pro-
vision at the end of the instrument, requiring a surplus, if any,
to be paid to the vendor, cannot be regarded as such reservation.
It is nothing more than an expression of what the law implies.
If, after all the property had been disposed of, and all the
creditors had been fully paid, and all the expenses satisfied, any
surplus remained, it belonged as a matter of law to the debtor,
and no formal statement to that effect can change the legal and
obvious import of the instrument from a general assignment for
the payment of debts to a provision for their security in the
nature of a chattel mortgage. ' '
The rule thus announced is entirely applicable to the instru-
ment executed by the Courtenay Mercantile Company ; the only
difference between the two being that, in the instrument of the
Courtenay Mercantile Company, there was a provision that the
proceeds should be distributed among the creditors who accepted
the terms of the instrument. This certainly did not change its
character. So far as the Courtenay Mercantile Company was
concerned, they conveyed all their property to the trustee for
the benefit of their creditors, and the instrument speaks of the
date of its execution and delivery. It could not be known at
that time but that all of the creditors would accept its provisions.
Had all the creditors accepted, it certainly would have operated
as a general assignment. We do not think that the question as
to whether an instrument of that character constitutes a general
APPOINTMENT OF A RECEIVER 373 , ,
alignment or a mortgage is dependent upon the subsequent event ^ '/l/^f- e^
of its acceptance by each and all of the debtor's creditors. In ^ ^
GrifSn V. DutTon, 165 Fed. 626, 91 C. C. A. 614, the Court of
Appeals of the First Circuit, said:
"Nor is it necessary that the assignment should be valid for
all purposes; as, for instance, that the creditors should assent
thereto.. The language of the bankruptcy act is general. It
makes no distinction between strictly valid instruments and those
which may be invalid for certain purposes. To limit its opera-
tion to those assignments which are in all respects valid would
be contrary to the intent and purpose of the act. ' '
To the same effect, see In re Meyer, 98 Fed. 976, 39 C. C. A.
368.
It is established by the foregoing authorities that a general
assignment for the benefit of creditors, within the inhibition of
the bankrupt law, need not necessarily be one which is valid
according to the state law. If its legal effect is a transfer of all
the debtor's property to a trustee for the benefit of all creditors,
share and share alike, who shall come in and prove their claims,
and thus accept its terms, it constitutes a general assignment.
We are cited to the case of Joas v. Jordan, 21 S. I), 379, 113
N. W. 73, where the Supreme Court of South Dakota, construing
a similar instrument, held that it was not an assignment, but a
mere security, as it was for the benefit only of those creditors
who assented to its conditions. The court in that case was con-
struing an instrument with reference to the statutory laws of that
state, and was not dealing with the question of an assignment
under the bankrupt law. Our attention has not been called to
any case by the Supreme Court of North Dakota holding that
such an instrument is a security in the nature of a chattel
mortgage.
We are clearly of the opinion that the instrument in question /
was a general assignment for the benefit of creditors, within the
purview of the bankrupt law, and the decree is affirmed.
4. APPOINTMENT OF A RECEIVER ',
IN RE SPALDING
139 Fed. 244, 71 C. C. A. 370
(Circuit Court of Appeals, Second Circuit. June 10, 1905)
WALLACE, C. J. This is an appeal from an adjudication of
bankruptcy, and is brought by a creditor who interposed an an-
374 PREREQUISITES TO ADJUDICATION
swer to the petition and contested the proceeding and by the
executor of Spalding. The acts of bankruptcy upon which the '
I adjudication was based were the_ appointment and putting jn
charge of a receiver of the property of the alleged bajatarupJLjQL
the Supreme Court of the state ot jSJew York" The petition for '
the adjudication alleged the commission of several other acts of
bankruptcy of Spalding, but none of the averments in respect
thereto were sufficient in form and substance. The referee in
bankruptcy by whom the proceeding was heard found that they
had not been proved. His findings in this respect were not over-
ruled by the District Court, and we have not been able to find
in the record sufficient evidence to support the averments.
We are unable to agree with the court below that the proofs
establish the commission by Spalding of the acts of bankruptcy
particularly referred to. These acts of bankruptcy are those
enumerated by subdivision a (4) of § 3 of the bankrupt act (Act
July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422] ).
§ 3 provides that acts of bankruptcy by a person * ' shall consist
of his having * * * a (4), made a general assignment for
the benefit of his creditors; or being insolvent applied for a re-
ceiver or trustee for his property; or because of insolvency a
receiver or trustee has been put in charge of his property under
the laws of a state, of a territory, or of the United States. ' '
Until the amendments of 1903 to the bankrupt act, the appoint-
ment of a receiver of the property of an insolvent, whether an
individual or a corporation, was not of itself an act of bank-
ruptcy ; and this was so whether the appointment was made upon
the application of the insolvent or upon the application of credit-
ors. The making of a general assignment for the benefit of
creditors was an act of bankruptcy by the terms of subdivision
a (4), and upon the theory that the appointment of a receiver
was equivalent in its results to a general assignment made by the
insolvent to a trustee the jurisdiction of the bankruptcy courts
had been sought occasionally by creditors who petitioned for an
adjudication of bankruptcy alleging such appointment to have
been a general assignment for the benefit of creditors;
but it was decided that § 3 did not include as one of
the enumerated acts of bankruptcy the appointment by a court
of a receiver or trustee of the property of an insolvent, and that
the "general assignment" of subdivision a (4) meant the ordi-
nary common-law general assignment made voluntarily by the
APPOINTMENT OF A RECEIVER 375
grantor, and those which in many of the states, being regulated
by statute, are known as "statutory general assignments." Re
Empire Metallic Bedstead Company, 98 Fed. 981, 39 C. C. A.
372; Vaccaro v. Security Bank of Memphis, 103 Fed. 436, 43
C. C. A, 279. In the former of these cases this court held that
the procurement by an insolvent of the appointment of a receiver
of his property by a state court could not be held to be an act
of bankruptcy upon the ground that it produces results equiva-
lent to those brought about by a general assignment for the
benefit of creditors, and that the acts of bankruptcy enumerated
by the statute could not be enlarged by construction so as to
include transactions similar or analogous to, but not identical
with, those specified. Doubtless these decisions were influential
in leading to the amendments of 1903. It is significant that •
these amendments are ingrafted upon original subdivision a (4),
thus indicating that what was in the mind of Congress was a
transfer which was equivalent in its results to a general assign-
ment by operating to transfer to a trustee all of the property
of an insolvent for the benefit of his creditors. The making o£ i
a general assignment by a debtor was always regarded as a^conJ '
^ssion of his insolvency, and it has sometimes been decided thai
such an assignment made by a person who was not insolvent at
the time, or did not suppose himself to be insolvent, was void, as4
manifesting an intent to hinder and delay creditors in the col-|
lection of their debts. Some of these decisions are referred to
in Van Nest v. Yoe, 1 Sandf . Ch. 4. Apparently what Congress
intended by the amendment was to place a receivership, whether
the appointment was procured by the initiation of the insolvent
or whether it was procured by the application of his creditors,
upon the same footing as a general assignment by an insolvent,
and, when it had occurred, to permit the courts of bankruptcy
to administer the estate, and have it distributed conformably
with all the provisions of the bankrupt act. It will be observed
that the first of the amendatory provisions confines the act of
bankruptcy to the appointment of a receiver or trustee upon the
application of the insolvent, while the second is a broader pro-
vision, and applies whenever a receiver or trustee has been put
in charge of the insolvent's property ''because of insolvency."
The petition for an adjudication did not allege such an act of
bankruptcy as is enumerated in the first of these provisions, and
the question to be considered consequently, is whether the proofs
376 PREREQUISITES TO ADJUDICATION
sustain the averment of the petition that a receiver had been put
in charge of Spalding's property "because of his insolvency."
It appeared by the proofs that the receiver was appointed in an
action brought by the corporation W. & J, Sloane, a creditor of
Spalding, to set aside a conveyance and transfer of certain real
and personal property of Spalding, made, as was alleged, with
intent to hinder, delay, and defraud his creditors, and particu-
larly the plaintiff. The plaintiff made application to the Su-
preme Court for the appointment of a receiver pendente liie,
and the order appointing the receiver, in granting the applica-
tion, recites the ground for the appointment as follows :
"That the plaintiff is a judgment creditor of the defendant,
Robert H. Spalding, and that its executions against his property
issued by its judgments have been returned wholly unsatisfied;
that the defendant, Robert H. Spalding, has been conveying,
mortgaging, and otherwise disposing of his property in fraud of
the plaintiff's rights and just demands, and is threatening to
make further conveyances and dispositions thereof in fraud of
the rights and just demands of the plaintiff."
Giving subdivision a (4) the construction which its language
demands, we are of the opinion that it does not make a receiver-
ship an act of bankruptcy unless it was procured upon the appli-
cation of the insolvent himself, and while insolvent ; and does not
make the putting a receiver in charge of the property of an in-
solvent an act of bankruptcy unless this was done because of
insolvency ; and if the latter provision applies to any case where
the trustee has not been put in charge pursuant to some statute
of the state, or a receiver put in charge by a court acting under
statutory authority, it certainly applies only when this has been
done because of insolvency. In most of the states statutory
provisions"exist"conferring jurisdiction upon designated courts
for the appointment of receivers. The statutes of New York
authorize the appointments of receivers of corporations in cases
of insolvency, but there is no statute authorizing the appoint-
ment by any court of a receiver of the property of an individual
merely upon the ground of his insolvency. The appointment in
the present case was doubtless made pursuant to § 713 of the
Code of Civil Procedure, which authorizes the appointment of a
receiver of "the property which is the subject of the action,**
upon the application of a party who establishes an "apparent
right to or interest in the property, where it is in the possession
ADMISSION IN WRITING 377
of an adverse party ' ' and when its custody by a receiver becomes
expedient.
Inasmuch as in the present case the receiver was not appointed
upon the application of Spalding, it is immaterial whether
Spalding was at the time insolvent. It is also immaterial that
the plaintiff in the action may have alleged as one of the evi-
dential facts of fraud that Spalding was insolvent. It suffices
that the court in exercising its authority did not purport to do
so upon that ground, and that the order appointing the receiver
and reciting the grounds for the action of the court is conclusive
to the contrary. The receiver was appointed because the court
found that Spalding had disposed and was threatening to dis-
pose of his property with intent to defraud the plaintiff in the
action and other creditors, and assigned this as the only ground
for its action in putting a receiver in charge of his property.
If the court had merely appointed a receiver, without reciting
the grounds of its judgment, the record could have been referred
to, or the grounds shown by evidence aliunde. Russell v. Place,
94 U. S. 608, 24 L. ed. 214 ; Davis v. Brown, 94 U. S. 428, 429, 24
L. ed. 204. But, having recited the grounds, the recitals cannot
be contradicted without impeaching the record; and this is in-
admissible. In re Watts, 190 U. S. 35, 23 Sup. Ct. 718, 47 L.
ed. 933. That the appointment of a receiver under the circum-
stances of this case is not such an act of bankruptcy as is con-
templated by subdivision a (4) is enforced by the consideration
that such acts as led to the appointment are of themselves acts
of bankruptcy by the terms of subdivision a(l) of § 3. It is
not to be presumed that Congress intended to amend the section
so as to create as an additional act of bankruptcy, one which was
already included in the section. * * »
The adjudication of bankruptcy is reversed, with costs, and
with instructions to dismiss the petitions of the original and in-
tervening creditors for an adjudication of bankruptcy.
5. ADMISSION IN WRITING ^ D -t^
IN RE WILMINGTON HOSIERY CO. '
120 Fed. 179
(District Court, D. Delaware. January 12, 1903)
BRADFORD, D. J. This is a motion to dismiss a petition in
involuntary bankruptcy filed against the Wilmington Hosiery
378 PREREQUISITES TO ADJUDICATION
Company, a corporation of Delaware. Only one alleged act of
bankruptcy is set forth. It is as follows :
"That said Wilmington Hosiery Company is insolvent and
that within four months next preceding the date of this petition
the said Wilmington Hosiery Company committed an act of
bankruptcy in that it did heretofore, to- wit, on the 28th day of
August, A. D. 1902, upon petition to the chancellor of the state
of Delaware, praying for the appointment of receiver for said
Wilmington Hosiery Company, on the ground of insolvency,
acknowledged under the oath of its president that said insolvency
existed and consented to the appointment of such receiver on
the ground of said insolvency, a certified copy of which petition
with the answer thereto and the order of the chancellor thereon
is hereunto annexed, and your petitioners pray may be taken as
a part of this petition. ' '
The petition or bill in chancery contains the following aver-
ment:
* * That said respondent corporation has become, and is now, in-
solvent and unable to pay its debts, and that it will be for the
benefit of the stockholders and creditors of the said corporation,
that a receiver be appointed for the purpose of preserving its
assets, and properly adjusting its business and liabilities."
It then prays for the appointment of such receiver. The com-
pany in its answer admitted the truth of the above averment,
and the chancellor thereupon appointed a receiver as prayed.
It is properly conceded by the counsel for the petitioners that
the petition in bankruptcy in its present form cannot be sus-
tained unless what is alleged as an act of bankruptcy can be
regarded as an admission by the company in writing of its in-
ability to pay its debts and its willingness to be adjudged a
bankrupt on that ground. But such a conclusion is wholly in-
admissible. While the company admitted in writing its insol-
vency it did not expressly or by implication admit its willing-
negs tnbe J^r^judgert a. hanV-nrpt. In tact, although admitting the
truth, of the averment of insolvency, it did not allege a willing-
ness to have a receiver appointed; but, if its admission of in-
solvency carried with it implied consent to the appointment of
a receiver, the aspect of the case would not be materially dif-
ferent. A written admission of insolvency and consent to have
a receiver appointed by the chancellor cannot be regarded as a
written admission of inability to pay debts and willingness to be
adjudged bankrupt. No doctrine of equivalency is applicable in
ADMISSION IN WRITING 379
this connection. Further, to hold the one equivalent to and of
the same effect as the other not only would be unwarranted by
the language and meaning of the bankruptcy act, but would be
calculated as a precedent to produce uncertainty and confusion
in its administration. * * * The petition will be dismissed
with costs.
V
V
CHAPTER III
ADMINISTRATION
p^^^y-^,**-^ SECTION I
RECEIVER
BOONVILLE NAT. BANK v. BLAKEY
107 Fed. 891, 47 C. C. A. 43
(Circuit Court of Appeals, Seventh Circuit. April 9, 1901)
On February 2, 1899, an involuntary petition in bankruptcy
was filed against M. Falson, and on February 28th he was ad-
judged a bankrupt. On March 7th (no trustee having been
selected) the petitioning creditors asked for the appointment of
a receiver upon three grounds: (1) That it was necessary for
some person to take charge of the bankrupt's books, etc., to pre-
pare a list of creditors; (2) that the estate included realty need-
ing immediate care and attention; (3) that the bankrupt had
preferred certain creditors, and that the preferences should be
recovered by a trustee or receiver. The court thereupon ap-
pointed Blakey as receiver, who filed a bill in equity against
several parties (including the Boonville National Bank and the
People's State Bank) seeking to recover alleged preferences.
The banks were decreed to pay certain sums to the receiver and
appeal from the decree. See 95 Fed. 267.
JENKINS, Circuit Judge [after discussing the timeliness of
the appeal]. * * *
The case involves the important question, patent upon the face
of the bill, whether a receiver in bankruptcy, appointed before
the selection of a trustee, can maintain suit to recover the
amount of a preferential payment made by the debtor prior to
the bankruptcy. * * *
The authority for the appointment of a receiver in bankruptcy
proceedings comes from the act and is limited by the act. The
order of the court appointing him cannot be broader than the
statute. The receiver is a statutory receiver, and not a general
380
RECEIVER 381
receiver. The latter is appointed by a court of chancery by
virtue of its inherent power, independent of any statute. His
authority is derived from, and his duty prescribed by, the order
of appointment, and he is called a common-law receiver. Herring
V. Railroad Co., 105 N. Y. 340, 12 N. E. 763. A statutory re-
ceiver is one appointed in pursuance of special statutory pro-
visions. He derives his power from the statute, and to it must
look for the duty imposed upon him. He possesses such power
only as the statute confers, or such as may be fairly inferred
from the general scope of the law of his appointment. We are
therefore referred to the bankrupt act (30 Stat. c. 541) to as-
certain the power of the bankruptcy court to appoint a receiver,
and the extent of the power which the act confers upon him.
By § 2, cl. 3, the courts of bankruptcy are invested with authority
to "appoint receivers or the marshals upon application of parties
in interest, m case the court shall find it absolutely necessary for
the preservation of estates, to take charge of the property of
the bankrupts after the filing of the petition and until it is dis-
missed or the trustee is qualified, ' ' and to ( § 2, cl. 5 ) authorize
the business of the bankrupts to be conducted for limited periods
by receivers and marshals or trustees, if necessary, in the best
interests of the estates. These are the sole provisions of the act
which authorize a receiver and define his duties. There is, how-
ever, another provision which may properly be considered in
this connection. In ^^69 it is provided that before adjudication
upon an involuntary petition, when it shall appear to the judge
that the property of the alleged bankrupt is being neglected, so
that it will deteriorate in value, a warrant may be issued to the
marshal to seize and hold the property subject to further order,
upon the petitioning creditors giving bond to indemnify the
alleged bankrupt for the damages he shall sustain if such seizure
shall be proved to have been wrongfully obtained, and the prop-
erty, when seized, shall be released upon bond filed by the alleged
bankrupt conditioned to turn over the property or its value in
money to the trustee in the event of adjudication of bankruptcy.
What, then, is the intent of the law with respect to the rights
and powers of the receiver? The statute requires (§55) that
the court shall cause the first meeting of creditors to be held not
more than 30 days after the adjudication, and if, through mis-
chance, the meeting should not be held within that time, the
court shall fix the date as soon as may be thereafter when it shall
be held. § 44 provides that creditors at their first meeting after
382 ADMINISTRATION
adjudication shall appoint a trustee, and, failing therein, the
court shall do so. He is by § 70a vested by operation of law
with the title as of the date of adjudication, except exemptions,
to the property of the bankrupt, with power of sale and disposi-
tion. Subdivision '*e" authorizes the trustee to avoid any trans-
fer by the bankrupt of his property which any creditor might
have avoided, and to recover the property so transferred or its
value. § 60a defines a preference, and § 60& provides that a
preference within four months of the filing of the petition to one
having reasonable cause to believe that it was intended thereby
to give a preference shall be voidable by the trustee, and he may
recover the property so transferred or its value. We can now
discover, as we think, the general purpose of this law. It was
tl^at the property of the bankrupt should be vested in a trustee,
toj be selected by creditors; that such officer should have the
general control and management of the estate, and the right to
recover for the benefit of creditors all property transferred in
fraud of the act. It contemplated that between the filing of the
petition jjidjhe adjudication of bankruptcy an emergency might
arise with respect to the care of the bankrupt 's property ; and,
in involuntary cases, for the protection of the property in the
interval between the filing of the petition and the adjudication,
the bankruptcy court was authorized to direct the marshal to
seize and hold the property pending adjudication. So, also, in
voluntary or involuntary cases, when it was found absolutely
necessary for the preservation of an estate, the court should
appoint a receiver or the marshal to take charge of the property
of the bankrupt until the petition is dismissed or the trustee is
qualified. It plainly was not contemplated that the receiver or
the marshal so designated should supersede the trustee or exer-
cise the general powers conferred upon a trustee. There is no
such power specifically conferred or any provision in the act
from which such power can reasonably be implied. Such tempo-
rary receiver, whether he be the marshal or another, is not a trus-
tee for the creditors, but is a caretaker and custodian of the
visible property pending adjudication and until a selection of a
trustee. If in any sense a trustee, he is trustee for the bankrupt,
in whom is the title to the property until it passes by operation
of law as of the date of adjudication to the trustee selected by
the creditors. The duty required and the power conferred clearly
are that the receiver or the marahal should take possession of
property that would otherwise go to waste, and hold it and pre-
RECEIVER 383
serve it, so that it might come to the trustee, when selected, with-
out needless injury. There might also be an occasion when the
business of the bankrupt ought not, in the interest of the credit-
ors, to be temporarily suspended, as for example in the case of a
hotel or other business, where the value of the good wiU required
that it should be kept a going concern until the trustee should
be appointed, and for a limited time after the trustee was ap-
pointed, that he might dispose of it profitably for the creditors.
We fail to find any provision in this Jaw which sanctions the
bringing of a suit bv a receiver to recover a preferential pay_2
ment to a creditor. Such a right does not come within the pur-
p^e tor wJiicli a receiver is authorized, and is neither expressly
nor impliedly sanctioned. A preferential payment to a creditor
could not be recovered back by the bankrupt. It could not be
gainsaid by a creditor, unless through the trustee and under the
bankrupt act. The transaction is not void even under the act.
It is voidable merely, and voidable only by the trustee. The
payment is not inherently wrong, being in discharge of an honest
debt. The trustee, as representative of and in the interest of all
the creditors, and not of the petitioning creditors alone, is to
determine in the first instance whether the payment was made
with a view to give a preference, and whether the creditor re-
ceiving payment had reasonable cause to believe that it was so
and if proof is forthcoming. He is to ascertain the facts and to
determine the probability of successful litigation, and whether
the creditor sought to be pursued is responsible, so that the
estate should not be mulcted in unnecessary litigation and costs.
The receiver or marshal is, in the contemplation of the act,
merely the temporary custodian selected to take possession of
visible property liable to waste, and to conserve it until the
trustee shall be selected by the creditors within the 30 days
limited, or appointed by the court ; but he is vested with no right
to avoid a transaction which by the act is specifically given to
the trustee, and which, but for the act, would not exist. It is
not within the spirit or letter of the law that the necessity of a
trustee should be superseded. It is required that at the earliest
opportunity — at the first meeting of creditors — he should be
selected. If the creditors therein fail, the duty upon the court
is imperative — not permissive — to appoint one. The receiver or
marshal takes possession of the visible property of the bankrupt
for delivery to the trustee, — not to pursue the debtors of the
384 ADMINISTRATION
estate, not to enforce rights of action vested in the trustee alone,
not to involve the estate in possibly unnecessary litigation.
We think we should do violence to both the letter and the
spirit of the act to enlarge the functions of a mere temporary
custodian, and to construe the law as vesting him with functions,
powers, and duties which are clearly not contemplated by the
act. It follows, therefore, that the receiver had no right to de-
clare void the payments in question and no right to recover the
sums demanded. That can only be done by the trustee ; for in
no other officer is the right vested. We do not say that the re-
ceiver may not, by suit or otherwise, assert or defend his pos-
session of the visible property which the law has placed in his
custody. That question is not before us. But he cannot usurp
the functions of a trustee and avoid payments to creditors when
no right so to do is conferred by the law.
* * * the decree is reversed and the cause is remanded,
with directions to dismiss the bill. * * *
. {^C^ SECTION II
Q^ir ' PROVABLE CLAIMS
i^jk^ A. In General
|1
WETMORE v. MARKOE (formerly Wetmore)
196 U. S. 68, 49 L. ed. 390, 25 Sup. Ct. 172
(United States Supreme Court. December 19, 1904)
On June 12, 1890, an action for divorce and alimony was
begun by Annette B. W. Wetmore, wife of the plaintiff in error,
in the Supreme Court of the state of New York, and on April 1,
1892, at special term, the plaintiff in error was found guilty of
adultery as charged in the complaint, and a divorce was granted
upon that ground to the defendant in error. The divorce was
Ancillary Beceiverships. — Before courts of bankruptcy with jurisdic-
the amendment of 1910 the courts tion to "exercise ancillary jurisdic-
were not agreed as to the ju- tion over persons or property within
risdiction of bankruptcy courts to their respective territorial limits in
appoint ancillary receivers or to en- aid of a receiver or trustee ap-
tertain ancillary proceedings gener- pointed in any bankruptcy proceed-
ally. See Collier on Bankruptcy, ings pending in any other court of
(10th ed.), 26. §2, clause 20, of bankruptcy. " The amendment would
the bankruptcy act now invests the seem to settle the controversy.
PROVABLE CLAIMS 385
absolute^ and awarded to the wife the custody and care of the
three minor children of the marriage, and also, as alimony, the
sum of $3,000 per annum so long as she should live, to be paid
in quarterly instalments of $750 each on the first day of the
months of July, October, January, and April of each year.
There was also granted to the wife the sum of $3,000 annually,
being $1,000 for the education and maintenance of each of the
three minor children, to be paid in quarterly instalments, until
such children should arrive at the age of twenty-one years re-
spectively. Plaintiff in error was also required to give security
for the payment of the alimony awarded. The decree did not
reserve any right of subsequent modification or amendment. On
January 13, 1899, there was due to the wife from the plaintiff
in error, for arrears in alimony and allowance under the decree,
the sum of $19,221.60. Upon that day, upon application to the
District Court of the United States for the eastern district of
Pennsylvania, the plaintiff in error was adjudicated a bankrupt.
The defendant in error made no proof of her claim for alimony
in the bankrupt proceedings. On June 21, 1900, the plaintiff
in error was granted a discharge from all debts and claims
provable under the bankruptcy act. On December 12, 1901,
plaintiff in error sued out a writ in the Supreme Court of the
state of New York for an order enjoining and restraining all
proceedings on behalf of the defendant in error for the collec-
tion of the arrears of alimony and allowance aforesaid. This
application was denied, upon the ground, as it appears from
the memorandum of the judge who rendered the decision, that
the arrears of alimony were not discharged in bankruptcy.
From the order denying the application an appeal was taken by
the plaintiff in error to the appellate division of the Supreme
Court of the state of New York, where the order below was
affirmed, 72 App. Div. N. Y. 620. The plaintiff in error there-
upon appealed to the Court of Appeals of the state of New York,
and on June 27, 1902, the appeal was dismissed for want of juris-
diction, without any judgment of affirmance or reversal upon the
merits, 171 N, Y. 690. A writ of error was sued out seeking in
this court a reversal of the judgment of the Supreme Court of
the state of New York.
Mr. Justice DAY, after making the foregoing statement, de-
livered the opinion of the court :
It is conceded in ar'gumfent by counsel for the plaintiff in
H. & A. Bankruptcy — 25
386 ADMINISTRATION
error that this case would be within the decision of this court
in Audubon v. Shufeldt, 181-U. S. 575, 45 L. ed. 1010, 21 Sup.
Ct. Rep. 735, if the judgment for alimony had been rendered
in a court having control over the decree with power to amend
or alter the same. It is insisted, however, that, there being in
this case no reservation of the right to change or modify the
decree, it has become an absolute judgment, beyond the power
of the court to alter or amend, and is therefore discharged by
the bankruptcy proceedings. Walker v. Walker, 155 N. Y. 77,
49 N. E. 663 ; Livingston v. Livingston, 173 N. Y. 377, 61 L. R.
A. 800, 93 Am. St. Rep. 600, 66 N. E. 123. It may be admitted
to be the effect of these decisions of the New York Court of
Appeals that, in the absence of any reservation of the right to
modify or amend, the judgment for alimony becomes absolute.
The question presented for decision, in view of this state of the
law is. Has the decree become a fixed liability evidenced by a
judgment, and therefore provable against the estate of the bank-
rupt, within the protection of the discharge in bankruptcy?
§ 63 of the act of 1898 provides :
"§ 63. Debts which may be proved:
"a Debts of the bankrupt may be proved and allowed against
his estate which are (1) a fixed liability as evidenced by a judg-
ment or an instrument in writing, absolutely owing at the time
of the filing of the petition against him, whether then payable
or not, with any interest thereon which would have been re-
coverable at that date, or with a rebate of interest upon such
as were not then payable and did not bear interest." [30 Stat.
at L. 562, c. 541, U. S. Comp. Stat. 1901, p. 3447.]
/ It is not contended that this section includes instalments of
alimony becoming due g,fter_the adjudication, but the conten-
[tion is that prior instalments have become an existing liability,
evidenced by the judgment, and therefore a provable debt.
While this section enumerates under separate paragraphs the
kind and character of claims to be proved and allowed in bank-
ruptcy, the classification is only a means of describing ''debts"
of the bankrupt which may be proved and allowed against his
estate.
The precise question, therefore, is, Is such a judgment as the
one here under consideration a debt within the meaning of the
act? The mere fact that a judgment has been rendered does
not prevent the court from looking into the proceedings with a
view of determining the nature of the liability which has been
PROVABLE CLAIMS 387
reduced to judgment. Boynton v. Ball, 121 U. S. 457, 466, 30
L. ed. 985, 987, 7 Sup. Ct. Rep. 981. The question presented is
not altogether new in this court. In the case of Audubon v.
Shufeldt, 181 U. S. 577, 45 L. ed. 1010, 21 Sup. Ct. Rep. 736,
Mr. Justice Gray, delivering the opinion of the court said :
"Alimony does not arise from any business transaction, but
from the relation of marriage. It is not founded on contract,
express or implied, but on the natural and legal duty of the hus-
band to support the wife. The general obligation to support is
made specific by the decree of the court of appropriate juris-
diction. Generally speaking, alimony may be altered by that
court at any time, as the circumstances of the parties may re-
quire. The decree of a court of one state, indeed, for the present
payment of a definite sum of money as alimony, is a record
which is entitled to full faith and credit in another state, and
may, therefore, be there enforced by suit. Barber v. Barber
(1858), 21 How. 582, 16 L. ed. 226; Lynde v. Lynde (1901),
181 U. S. 183, 45 L. ed. 810, 21 Sup. Ct. Rep. 555. But its
obligation in that respect does not affect its nature. In other
respects, alimony cannot ordinarily be enforced by action at law,
but only by application to the court which granted it, and sub-
ject to the discretion of that court. Permanent alimony is re-
garded rather as a portion of the husband's estate to which the
wife is equitably entitled than as strictly a debt; alimony from
time to time may be regarded as a portion of his current income
or earnings; and the considerations which affect either can be
better weighed by the court having jurisdiction over the rela-
tion of husband and wife than by a court of a different juris-
diction. ' '
In the same opinion Mr. Justice Gray quoted from Barclay v.
Barclay, 184 111. 375, 51 L. R. A. 351, 56 N. E. 636, in which
case it was adjudged that alimony could not be regarded as a
debt owing from husband to wife, which might be discharged
by an order in bankruptcy, whether the alimony accrued before
or after the proceedings in bankruptcy :
' ' The liability to pay alimony is not founded upon a contract,
but is a penalty imposed for a failure to perform a duty. It is
not to be enforced by an action at law in the state where the
decree is entered, but is to be enforced by such proceedings as
the chancellor may determine and adopt for its enforcement.
* * * It may be enforced by imprisonment for contempt,
without violating the constitutional provision prohibiting impris-
388 ADMINISTRATION
omnent for debt. The decree for alimony may be changed from
time to time by the chancellor, and there may be such circum-
stances as would authorize the chancellor to even change the
amount to be paid by the husband, where he is in arrears in pay-
ments required under the decree. Hence, such alimony cannot
be regarded as a debt owing from the husband to the wife, and,
not being so, cannot be discharged by an order in the bankruptcy
court. ' '
It is true that, in the cases referred to, the decrees were ren-
dered in courts having continuing control over them, with power
, to alter or amend them upon application ; but this fact does not
j change the essential character ofj^he^ability, nor deterpaine
/ whether a claim for ajimony isTm^ite ^ature, contractual so as
I lolnake it a~debt. The court having power to look behind the
judgment, to determine the nature and extent of the liability,
the obligation enforced is still of the same character notwith-
standing the judgment. We think the reasoning of the Audu-
bon Case recognizes the doctrine that a decree awarding alimony
to the wife or children, or both, is not a debt which has been
put in the form of a judgment^ but is rather a legal_means of
enforcing the obligation_of_thejiusband and father to support
and maintain his wife and children. He owes this duty, not
because of any contractual obligation, or as a debt due from
him to the wife, but because of the policy of the law which im-
poses the obligation upon the husband. The law interferes
when the husband neglects or refuses to discharge this duty, and
enforces it against him by means of legal proceedings.
It is true that in the state of New York at the time this decree
was rendered there was no power to modify or alter the decree
for alimony and allowance in the absence of special reservation.
But this does not change the grounds upon which the courts of
the state proceeded in awarding the alimony and allowances.
In the case of Romaine v. Chauncey, 129 N. Y. 566, 14 L. R. A.
712, 26 Am. St. Rep. 544, 29 N. E. 826, it was held that alimony
was awarded, not in the payment of a debt, but in the per-
formance of the general duty of the husband to support the
wife. This case was quoted with approval by Mr. Justice Gray
in Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup.
Ct. Rep. 735.
In Walker v. Walker, 155 N. Y. 77, 49 N. B. 663, and Living-
ston V. Livingston, 173 N. Y. 377, 61 L. R. A. 800, 93 Am. St.
Eep. 600, 66 N. E. 123, the effect of the holdings is that a judg-
PROVABLE CLAIMS 389
raent for alimony, in the absence of reservation, is a fixed and
unalterable determination of the amount to be contributed to the
wife's support after the decree, and is beyond the power of the
court to change even under the authority of subsequent legis-
lation. These cases do not modify the grounds upon which ali-
mony is awarded, and recognize that an alimony decree is a
provision for the support of the wife, settled and determined by
the judgment of the court.
In the case of Dunbar v. Dunbar, decided by this court at the
October term, 1902 (190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct.
Rep. 757), it was held that a contract made after divorce be-
tween husband and wife, by which the former agreed to pay the
latter a certain sum of money annually for her support during
her life, or so long as she remained unmarried, and also to pay
a certain sum of money to her annually for the support of the
minor children of the marriage, whose custody was awarded to
the mother, was not discharged by a subsequent proceeding and
discharge in bankruptcy. It was further held that the sum
agreed to be paid for the support of the minor children was but
,.a recognition of the liability of the father for their support, and
that the fact tliat the annual instalments were made payable to
the wife made no difference in the character of the obligation.
Of this feature of the contract the court, speaking by Mr. Jus-
tice Peckham, said:
"In relation to that part of the husband's contract to pay for
the support of his minor children until they respectively be-
come of age, we also think that it was not of a nature to be
proved in bankruptcy. At common law, a father is bound to
support his legitimate children, and the obligation continues
during their minority. We may assume this obligation to exist
in all the states. In this case the decree of the court provided
that the children should remain in the custody of the wife, and
the contract to contribute a certain sum yearly for the support
of each child during his minority was simply a contract to do
that which the law obliged him to do; that is, to support his
minor children. * * * ^q think it was not the intention of
Congress, in passing a bankruptcy act, to provide for the release
of the father from his obligation to support his children by his
discharge in bankruptcy, and if not, then we see no reason why
his contract to do that which the law obliged him to do should
be discharged in that way. As his discharge would not in any
event terminate his obligation to support his children during
390 ADMINISTRATION
their minority, we see no reason why his written contract
acknowledging such obligation and agreeing to pay a certain
sum (which may be presumed to have been a reasonable one) in
fulfilment thereof should be discharged. It is true his prom-
ise is to pay to the mother ; but on this branch of the contract it
is for the purpose of supporting his two minor children, and he
simply makes her his agent for that purpose."
"We think this language is equally applicable to the present
case in that aspect of the decree which provides for the support
of the minor children. The obligation continues after the dis-
charge in bankruptcy as well as before, and is no more than the
duty devolved by the law upon the husband to support his
children, and is not a debt in any just sense.
It is urged that the amendment of the law made by the act
of February 5, 1903 [32 Stat, at L. 797, c. 487], excepting from
the operation of a discharge in bankruptcy a decree for alimony
due or to become due, or for the maintenance and support of
the wife and minor children, is a legislative recognition of the
fact that, prior to the passage of the amendment, judgments for
alimony would be discharged. In Dunbar v. Dunbar, 190 U. S.
340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757, it was said that this
amendment, while it did not apply to prior cases, may be referred
to for the purpose of showing the legislative trend in the direc-
tion of not discharging an obligation of the bankrupt for the
support and maintenance of wife and children. The amendment
may also have been passed with a view to settling the law upon
this subject, and to put at rest the controversies which had arisen
from the conflicting decisions of the courts, both state and Fed-
eral, upon this question. Indeed, in view of the construction
of the act in this court in Audubon v. Shufeldt, 181 U. S. 575,
45 L. ed. 1009, 21 Sup. Ct. Rep. 735, it may be said to be merely
declaratory of the true meaning and sensp^<»f-the statute. United
States V. Freeman, 3 How. 556, 11 L. ed. 724; Bailey v. Clark,
21 Wall. 284, 288, 22 L. ed. 651, 653 ; Cope v. Cope, 137 U. S.
682, 684, 34 L. ed. 832, 834, 11 Sup. Ct. Rep. 222. The bank-
ruptcy law should receive such an interpretation as will effectuate
its beneficent purposes, and not make it an instrument to deprive
dependent wife and children of the support and maintenance
due them from the husband and father, which it has ever been
the purpose of the law to enforce. Systems of bankruptcy are
designed to relieve the honest debtor from the weight of in-
debtedness which has become oppressive, and to permit him to
PROVABLE CLAIMS 391
have a fresh start in business or commercial life, freed from the
obligation and responsibilities which may have resulted from
business misfortunes. Unless positively required by direct enact-
ment the courts should not presume a design upon the part of
Congress, in relieving the unfortunate debtor, to make the law
a means of avoiding enforcement of the obligation, moral and
legal, devolved upon the husband to support his wife and to
maintain and educate his children. While it is true in this ease
the obligation has become fixed by an unalterable decree so far
as the amount to be contributed by the husband for the support
is concerned, looking beneath the judgment for the foundation
upon which it rests, we find it was not decreed for any debt of
the bankrupt, but was only a means designed by the law for
carrying into effect, and making available to the wife and chil-
dren, the right which the law gives them as against the husband
and father.
We find no error in the judgment of the Supreme Court of
the state of New York, and the same is affirmed.^
ZAVELLO V. REEVES et al.
227 U. S. 625, 57 L. ed. 676, 33 Sup. Ct. 365
(United States Supreme Court. February 24, 1913)
Mr. Justice PITNEY delivered the opinion of the court :
Defendants in error sued plaintiff in error November 22, 1907,
in the City Court of Birmingham, Alabama, declaring upon the
common counts for moneys due December 10, 1906, and Febru-
ary 19, 1906, and by an amendment declared upon a promissory
note for about $250, which was a part of a claim of the defend-
ants in error that antedated the bankruptcy of the plaintiff in
error. The defendant (now plaintiff in error) pleaded that on
November 22, 1905, he filed in the District Court of the United
States for the northern district of Alabama, his petition in bank-
ruptcy ; that said court had jurisdiction of said bankruptcy pro-
ceedings, and duly adjudicated him a bankrupt on that date;
that subsequently he offered a composition to his creditors, and
the offer was accepted and a composition made in said proceed-
ings and duly confirmed by said District Court February 6, 1906,
1 — See In re Moore, 111 Fed. Co., 188 Fed. 861; James v. Gray,
145; In re Southern Steel Co., 183 131 Fed. 401.
Fed. 498; In re Spot-Cash Hooper
392
ADMINISTRATION
r.^
a certified copy of the decree of confirmation being attached to
and made a part of the plea ; that the plaintiffs were then cred-
itors of the bankrupt, and as such accepted the offer of compo-
sition and were paid a dividend thereon; that the claim sued
on herein is a part of and was included in said claim on which
said dividend was paid, and the claim herein is barred by said
proceedings and discharged by said composition. The plaintiffs
replied, (a) that on January 1, 1906 (which date was after the
adjudication and before the discharge), defendant promised that
if plaintiffs would lend him $500 for use in paying the considera-
tion of a composition with his creditors in said bankruptcy pro-
ceedings, he, defendant, when said composition was confirmed,
would pay plaintiffs the balance of the demand sued on, after
deducting therefrom plaintiffs ' share of the consideration of such
composition; and plaintiffs averred that they accepted defend-
ant's said offer and promise, and did so lend him the said sum
of $500 for the said purpose; and (b) for further replication,
that ^ter the filing of defendant's said petition in bankruptcy,
and after he had been adjudged a bankrupt, defendant promised
plaintiffs that he would pay what he owed them, being the same
demand sued on herein, when his composition in bankruptcy was
confirmed, and that plaintiffs accepted said promise. To these
replications the defendant demurred. The City Court overruled
the demurrers and proceeded to a trial of the issues of fact, which
resulted in favor of the plaintiffs upon both the common counts
and the note. The defendant appealed to the Supreme Court of
Alabama, which affirmed the judgment. 171 Ala. 401, 54 So. 654.
Whereupon he sued out the present writ of error.
The case is brought here under § 709, Rev. Stat. (U. S. Comp.
Stat. 1901, p. 575), the contention being that a right or immunity
set up and claimed by the plaintiff in error under the Federal
bankruptcy act was denied by the State Court. See Linton v.
Stanton, 12 How. 423, 13 L. ed. 1050 ; Mays v. Fritton, 131 U. S.
cxiv, Appx. and 21 L. ed. 127 ; Hill v. Harding, 107 U. S. 631,
27 L. ed. 493, 2 Sup. Ct. Rep. 404 ; Rector v. City Deposit Bank,
200 U. S. 405, 50 L. ed. 527, 26 Sup. Ct. Rep. 289.
It is not contended that the record imports a secret or fraudu-
lent agreement between the bankrupt and the plaintiffs at the
expense of other creditors. The State Court construed the repli-
cations as not averring secrecy or fraud, saying (171 Ala. 408) :
' * That an advantage accrued to plaintiffs as the result of the loan
is true ; but that it came as a result of fraud, collusion, or extor-
PROVABLE CLAIMS 393
tion, cannot be read from these replications. On the contrary,
the advantage, so far as the pleadings show, was the result of
the advancement made by way of the loan described. There is
nothing in the replications on which to rest a conclusion that any-
thing other than the loan induced the promise relied on for recov-
ery here. ' '
This construction of the pleadings is not disputed here. We
therefore are not in this ease concerned with the general equi-
table principle that composition agreements are invalid if based
upon or procured by a secret arrangement with one or more fa-
vored creditors, in violation of the equality and reciprocity upon
which such an agreement is avowedly based. Story, Eq. Jur. 9th
ed. §§ 378, 379; Clarke v. White, 12 Pet. 178, 199, 9 L. ed. 1046,
1055; Wood V. Barker, L. R. 1 Eq. 139, 35 L. J. Ch. N. S. 276,
11 Jur. N. S. 905, 13 L. T. N. S. 318, 14 Week. Rep. 47 ; McKewan
V. Sanderson, L. R. 20 Eq. 65, 44 L. J. Ch. N. S. 447, 32 L. T.
N. S. 385, 23 Week. Rep. 607 ; Bissell v. Jones, L. R. 4 Q. B. 49,
9 Best & S. 884, 38 L. J. Q. B. N. S. 2, 19 L. T. N. S. 262, 17
Week. Rep. 49 ; Ex parte Nicholson, L. R. 5 Ch. 332, 22 L. T. N.
S. 286, 18 Week. Rep. 411 ; Crossley v. Moore, 40 N. J. L. 27, 34;
Feldman v. Gamble, 26 N. J. Eq. 494; Dicks v. Andrews, 132
Ga. 601, 604, 64 S. E. 788, 16 Ann. Cas. 1070.
Of the questions raised, only three deserve notice.
(1) It is contended that the transaction set up in the former
of the two replications mentioned was in violation of the prohibi-
tion of § 29&, cl. 5 of the bankruptcy act (30 Stat, at L. c. 541,
pp. 544, 554, U. S. Comp. Stat. 1901, pp. 3418, 3433), which de-
clares that "a person shall be punished, by imprisonment for
a period not to exceed two years, upon conviction of the offense
of having knowingly and fraudulently * * * extorted or
attempted to extort any money or property from any person as
a consideration for acting or forbearing to act in bankruptcy
proceedings." It is sufficient to say that we are unable to see
in this record anything of extortion or attempted extortion.
(2) It is contended as to both replications that although a
debt barred by discharge in bankruptcy may be revived by a
new promise made after the discharge, this cannot be done by
a new promise made in the interim between the adjudication
and the discharge.
It is settled, however, that a discharge, while releasing the
bankrupt from legal liability to pay a debt that was provable in
the bankruptcy, leaves him under a moral obligation that is
394 ADMINISTRATION
1 — sufficient to support a new promise to pay the debt. And in
reason, as well as by the greater weight of authority, the date
of the new promise is immaterial. The theory is that the dis-
charge destroys the remedy, but not the indebtedness : that, ge]>
- erally speaking, it relates to the inception of the proceedings, and
the transfer of the bankrupt's estate for the benefit of creditors
takes effect as of the same time ; that the bankrupt becomes a free
man from the time to which the discharge relates, and is as com-
petent to bind himself by a promise to pay an antecedent obliga-
tion, which otherwise would not be actionable because of the
discharge, as he is to enter into any new engagement. And so,
under other bankrupt acts, it has been commonly held that a
promise to pay a provable debt, notwithstanding the discharge,
is as effectual when made after the filing of the petition and
before the discharge as if made after the discharge. Kirkpatrick
V. Tattersall, 13 Mees. & W. 766, 1 Car. & K. 577, 14 L. J. Exch.
N. S. 209, 9 Jur. 214 ; Otis v. Gazlin, 31 Me. 567 ; Homthal v.
McRae, 67 N. C. 21 ; Fraley v. Kelly, 67 N. C. 78 ; Hill v. Trainer,
49 Wis. 537, 5 N. W. 926 ; Knapp v. Hoyt, 57 Iowa, 591, 42 Am.
Rep. 59, 10 N. W. 925 ; Lanagin v. Nowland, 44 Ark. 84 ; Wiggin
V. Hodgdon, 63 N. H. 39 ; Griel v. Solomon, 82 Ala. 85, 60 Am.
Rep. 733, 2 So. 322 ; Jersey City Ins. Co. v. Archer, 122 N. Y.
376, 25 N. E. 338.
Our attention is not called to any decision in point arising
under the present bankruptcy act ; but we deem it clear that the
same rule should be applied. If there is any distinction between
this and former acts that would require a different rule, it must
arise from the time to which the discharge is made to relate.
As to this, § 17 of the act of 1898 declares that "a discharge in
bankruptcy shall release a bankrupt from all his provable debts, ' *
with certain exceptions not now pertinent. For the definition of
"provable debts" we are referred to §63, which is set forth
in full in the margin.^ Of the several classes of liabilities, those
2 — § 63. Debts Which May be would have been recoverable at that
Proved. — a Debts of the bankrupt date or with a rebate of interest
which may be proved and allowed upon such as were not then payable
against his estate which are (1) a and did not bear interest; (2) due
fixed liability, as evidenced by a as costs taxable against an involun-
judgment or an instrument in writ- tary bankrupt who was at the time
ing, absolutely owing at the time of the filing of the petition against
of the filing of the petition against him plaintiff in a cause of action
him, whether then payable or not, which would pass to the trustee and
with any interest thereon which which the trustee declines to prose-
PI^^OVABLE CLAIMS 395
in clauses 1, 2, and 3 are in terms described as existing at or
jbefore the filing of the petition.. Clause 5 relates to liabilities
"founded upon provable debts reduced to judgment after the fil-
ing of the petition, ' ' etc. ; plainly meaning that they arose before
its filing. Clause 4 describes simply debts that are "founded
upon an open account, or upon a contract, express or implied,"
not in terms referring to the time of the inception of the indebt-
edness. But, readinjy the whole of § 63, and considering it in
connection with the spirit and purpose of the act, we deem it
plain that the debts founded upon open account or upon con-
tract, express or implied, that are provable under § 63a, cl. 4,
include only such as existed at the time of the filing of the peti-
tion in bankruptcy. This court in effect adopted that construc-
tion when, in promulgating the General Orders and Forms in
Bankruptcy, 1898, under the authority conferred by § 30, a form
of discharge was prescribed (Forms in Bankruptcy, No. 59), by
which it is ordered that the bankrupt "be discharged from all
debts and claims which are made provable by said acts against
his estate, and which existed on the — day of , A. D, ,
on which day the petition for adjudication was filed — him; ex-
cepting such debts as are by law excepted from the operation of
a discharge in bankruptcy. ' ' And the forms prescribed for proof
of debts all declare that the indebtedness existed ' ' at and before
the filing of the said petition." Forms 31 to 36, inclusive. The
General Orders and Forms, etc., are to be found in 172 U. S.
700-704, 43 L. ed. 1217, 1218, 18 Sup. Ct. Rep. xxxii.-xxxv. ; 32
C. C. A. Ixvi.-lxix., 89 Fed. xlii.-xlv. ; 3 Foster, Fed. Pr. 4th ed.
2526, 2559, 2572.
The view above expressed as to clause 4 of § 63a is the same
that has been generally adopted in the Federal District Courts.
Re Burka, 104 Fed. 326 ; Re Swift, 50 C. C. A. 264, 112 Fed.
315, 321 ; Re Adams, 130 Fed. 381 ; Coleman Co. v. Withoft, 195
cute after notice; (3) founded upon rupt's application for a discharge,
a claim for taxable costs incurred less costs incurred and interests ac-
in good faith by a creditor before crued after the filing of the petition
the filing of the petition in an ae- and up to the time of the entry of
tion to recover a provable debt; such judgments.
(4) founded upon an open account, b Unliquidated claims against the
or upon a contract express or im- bankrupt may, pursuant to applica-
plied; and (5) founded upon prov- tion to the Court, be liquidated in
able debts reduced to judgments such manner as it shall direct, and
after the filing of the petition and may thereafter be proved and al-
before the consideration of the bank- lowed against his estate.
396 ADMINISTRATION
Fed. 250, 252; and see Re Roth, 31 L. R. A. (N. S.) 270, 104
C. C. A. 649, 181 Fed. 667, 673.
And so, upon the whole matter, we conclude that under the
present act an express promise to pay a provable debt is good
although made after the filing of the petition and before
discharge.
(3) What has been said disposes at the same time of the conten-
tion that the promises set up in the two replications under con-
sideration were discharged by the confirmation of the composition.
As these obligations were entered into after the adjudication of
bankruptcy, they were, of course, not provable under § 63, and
only provable debts are discharged.
With respect to the money loaned to the bankrupt for use in
paying the consideration of the composition, it is perhaps worth
while to remark that § 12 of the act, in prescribing the time and
mode of offering terms of composition, plainly contemplates that
a composition in money may be offered, and expressly prescribes
that an application for the confirmation of a composition may be
made after, but not before, "the consideration to be paid by the
bankrupt to his creditors, and the money necessary to pay all
debts which have priority, and the cost of the proceedings, have
been deposited in such place as shall be designated by, and sub-
ject to the order of, the judge. ' ' And the same section provides
that "upon the confirmation of a composition the consideration
shall be distributed as the judge shall direct, and the case dis-
missed. ' '
The act, of course, contemplates that the bankrupt may acquire
the money required for the purposes of the composition by the
use of his credit.
Judgment affirmed.^ »^^ *
' jX -A ^itM' B. Tort Claims
' /^ VC V^. CRAWFORD et al. v. BURKE
^ ' " y^ 195 U. S. 176, 49 L. ed. 147, 25 Sup. Ct. 9
-^' _^ ^ (United States Supreme Court. November 7, 1904)
j^^ This was an_action injrover instituted September 10, 1897, in
the Circuit Court of Cook county, Illinois, by Burke against
3 — See In re Swift, 112 Fed. 315; Duquesne Incandescent Light Co.,
In re Neff, 157 Fed. 57; In re 176 Fed. 785.
TORT CLAIMS 397
Crawford & Valentine, plaintiffs in error, to recover damages for
the wilful and fraudulent conversion of certain reversionary
interests of the plaintiff in 550 shares of Metropolitan Traction
stock.
There were ten counts in the declaration. In each of the first
five counts it was alleged that the 4ef eodant firm jof^Crawf ord &
Valentine were stock brokers and dealers in investment securi-
ties; that plaintiff employed the defendants as his brokers and
agents to buy, hold, and carry stocks for him, subject to his
order; that defendants had in their possession, or under their
control, certain shares of the capital stock of the Metropolitan
Traction Company, which they were holding^as^a^pledge and se-
curity fOTjtbfi-jamount dlie them'^omlhe plaintiff on said stock ;
that defendants wrongfully, wilfully, and fraudulently, and with-
out his knowledge or consent, sold said shares of stock, and wil-
fully and fraudulently, and with intent to cheat and defraud the
plaintiff, converted plaintiff's reversionary interest in said stock
to their use, whereby it was wholly lost.
In each of the last five counts it was alleged that after defend-
ants had wrongfully and fraudulently, and without plaintiff's
knowledge or consent, sold the plaintiff's stock, and converted'
the proceeds _of such jales to their own use, they~f alsely and
fraudulently represented to him tha,t they still had the stock on
hand and were carrymgjt for him; that their correspondents in
Philadelphia, where the stock had been bought, were calling upon
them for further demands or margins, and that it therefore be-
came necessary to call upon the plaintiff to make further pay-
ments on the stock in order to comply with their correspondents'
demands and to be secured against loss. It was averred in each
of said counts that such representations were false and fraudu-
lent, and by means thereof defendants obtained from the plain-
tiff the aggregate sum of $10,800.
To this declaration defendants pleaded not guilty, upon which
issue was joined January 4, 1900, and on May 12, 1900, a jury
trial was waived in writing. The case rested without action
until January 3, 1901, when defendants filed their separate pleas
of puis darrein continuance, setting up that on April 5, 1900, the
defendants had_received their discharge in bankruptcy, in the
District Court for the northern district in Illinois, and that plain-
tiff's claims were provable and not excepted from the operation
of such discharge. The plaintiff replied, denying that his claim
398 ADMINISTRATION
(was provable, and averred that the same was excepted from such
operation.
Notwithstanding the plea of puis darrein continna/nce, the
plaintiff introduced evidence and proved the allegations in his
declaration, and the amount of damages he had sustained. De-
fendants were found guilty upon all the counts, and judgment
entered against them.
The ease was taken to the Appellate Court, where, it appear-
ing that one of the justices had taken part in the trial of the
case below, and that the two remaining justices were unable to
agree upon the case, the judgment of the Circuit Court was
affirmed. The judgment of the Appellate Court was also affirmed
by the Supreme Court of Illinois (201 lU, 581, 66 N, E. 833),
to review which judgment this writ of error was sued out,
Mr. Justice BROWN, after making the foregoing statement,
delivered the opinion of the court :
A year after this case was put at issue, and upon the opening
of the trial, defendants tiled their separate pleas puis darrein
continuance, setting up their discharge in bankruptcy, and aver-
ring that plaintiff's claim was a provable debt, and the discharge
a complete defense,
* • •
But not%Adthstanding this, plaintiff was permitted to introduce
evidence in proof of the fraud alleged in his declaration; and
upon the conclusion of the trial the court found there had been
a conversion of plaintiff's reversionary interest in the stock, for
which he ' ' had a right to recover in trover, ' ' and that it was not
such a debt as was barred by the bankruptcy act. Upon appeal
to the Supreme Court it was held that it was not necessary to the
judgment to decide whether the allegations of the declaration
were admitted by the pleadings, as they were established by the
proof which had been adduced by plaintiff, ''and, the proposi-
tions held as law on that branch of the case being correct, judg-
ment for plaintiff necessarily follows. ' ' That court also held that
the case, being one of fraud, was not covered by the defendants*
discharge in bankruptcy.
The only Federal question involved in the ease is whether the
Supreme Court of Illinois gave the proper effect to the dis-
charge pleaded by the defendants. If plaintiff's claim was not
a provable debt, or was expressly excepted from the operation
of the discharge the decision of that court was right ; but if it
TORT CLAIMS
399
was covered by the discharge, such discharge was a complete
defense.
§ 17 of the bankruptcy act of 1898 contains, among other
things, the following provisions:
" § 17. A discharge in bankruptcy shall release the bankrupt
from all of his provable debts, e^^cept such as * * * (2) are ]
judgments in actions for fraudsror~obtaining property by false
pretenses or false representations, or for wilful and malicious ^
injuries to the person or property of another, * * * or (4)
were created by his fraud, embezzlement, misappropriation, or
defalcation while acting as an officer, or in any fiduciary ca-
pacity." [30 Stat, at L. 550, c. 541, U. S. Comp. Stat. 1901,
p. 3428.]
Under this section, whether the discharge of the defendants
in bankruptcy shall operate as a discharge of plaintiff's debt, it
not having been reduced to judgment, depends upon the fact
whether that debt was ' ' provable ' ' under the bankruptcy act, —
that is, susceptible of being proved ; second, whether it was or was
not created by defendant's fraud, embezzlement, misappropria-
tion, or defalcation while acting as an officer or in any fiduciary
capacity.
1. Provable debts are defined by § 63, a copy of which appears
in the margin.* Paragraph a of this section includes debts aris-
ing upon contracts, express or implied, and open accounts, as
well as for judgments and costs. As to paragraph b, two con-
structions are possible: It may relate to all unliquidated de-
mands, or only to such as may arise upon such contracts, express
or implied, as are covered by paragraph a.
Certainly paragraph ftjioes not embrace debts of an unliqui-
dated character and which in their nature are not susceptible
of being liquidated, Dunbar v. Dunbar, 190 U. S. 340, 350, 47
LT~ed. 10E4, 1092, 23 Sup. Ct. Rep. 757. Whether the effect of
paragraph 6 is to cause an unliquidated claim which is suscept-
ible of liquidation, but is not literally embraced by paragraph a,
to be provable in bankruptcy, we are not called upon to decide,
as we are clear that the debt of the plaintiff was embraced within
the provision of paragraph a, as one "founded upon an open
account, or upon a contract, express or implied, ' ' and might have
b£en proved under § 63a had plaintiff chosen to waive the tort,
and take his place- with the other creditors of the estate. He
4 — See note 2, supra.
400 ADMINISTRATION
did not elect to do this, however, but brought an action of trover,
setting up a fraudulent conversion of his property by defendants.
In the first five counts of his declaration he charges a fraudu-
lent conversion of his interest in the stock, and, in the last five
counts, that the defendants had induced him to make further
payments on such stock in the way of margins, by false and fradu-
lent representations.
The question whether the claim thus set forth is barred by
the discharge depends upon the proper construction of § 17,
which declares that the discharge in bankruptcy relieves the bank-
rupt from all of his "provable debts," except such as "* * *
(2) are judgments in actions for frauds, or obtaining property
by false pretenses, or false representations, or for wilful and
malicious injuries to the person or property of another, • * *
or (4) were created by his fraud, embezzlement, misappropri-
ation, or defalcation while acting as an officer, or in any fiduciary
capacity."
* • *
2. But it is strenuously insisted by the plaintiff that a claim
for the conversion of personal property is not within the scope of
§ 17, because it is not a "provable debt" within the definition of
§ 63a. Did the latter section stand alone, there would be some
ground for saying that a claim, though * ' founded upon an open
account, or upon a contract, express or implied," would not be
a provable debt, if plaintiff elected to treat the conversion as
fraudulent, and sue in trover, though he might have chosen to
waive the tort, and bring an action for a balance due on account.
An early English case (Parker v. Crole, 5 Bing. 63, 2 Moore &
P. 150) is cited to the effect that the operation of the discharge
is determined by the election of the creditor to sue in assumpsit
or case. A like ruling was made in certain cases under the bank-
ruptcy acts of 1841 and 1867. Williamson v. Dickens, 27 N. C.
(15 Ired. L.) 259; Hughes v. Oliver, 8 Pa. 426; Bradner v.
Strang, 89 N. Y. 299-307.
But we think that § GSa, defining provable debts, must be read
in connection with § 17, limiting the operation of discharges, in
which the provable character of claims for fraud in general is
recognized, by excepting from a discharge claims for frauds
which have been reduced to judgment, or which were commit-
ted by the bankrupt while acting as an officer, or in a fiduciary
capacity. If no fraud could be made the basis of a provable debt,
why were certain frauds excepted from the operation of a dis-
TORT CLAIMS 401
charge? We are, therefore, of opinion that if a debt originates
or is "founded upon an open account or upon a contract, ex-
press or implied," it is provable against the bankrupt's estate,
though the creditor may elect to bring his action in trover, as
for a fraudulent conversion, instead of in assumpsit, for a bal-
ance due upon an open account. It certainly could not have
been the intention of Congress to extend the operation of the
discharge under § 17 to debts that were not provable under
§ 63a. It results from the construction we have given the latter )
section that all debts originating upon an open account or upon
a contract, express or implied, are provable, though plaintiff
elect to bring his action for fraud. '
In the case under consideration defendants purchased, un-
der the instructions of the plaintiff, certain stocks, and opened
an account with him, charging him with commission and inter-
est, and crediting him with amounts received as margins. Sub-
sequently, and without the knowledge of the plaintiff, they sold
these stocks, and thereby converted them to their own use. With-
out going into the details of the facts, it is evident that the plain-l
tiff might have sued them in an action on contract, charging them
■'Jnth the money advanced and with the value of the stock; or in
an action of trover, based upon their conversion. For reasons
above given, we do not think that his election to sue in tort de-
prived his debt of its provable character, and that, as there is no
evidence that the frauds perpetrated by the defendants were com- j
mitted by them in an official or fiduciary capacity, plaintiff's
claim against them was discharged by the proceedings in bank-
ruptcy.
The judgment of the Supreme Court of Illinois is therefore
reversed, and the case remanded to that court for further pro-
ceedings not inconsistent with this opinion.^ -
BROWN & ADAMS v. UNITED BUTTON C^'^^^-g,.
149 Fed. 48, 79 C. C. A. 701
(Circuit Court of Appeals, Third Circuit. November 10, 1906)
ARCHBALD, District Judge. The question is whether a claim
for unliquidated damages, resulting from injury to the property
5— See Clarke v. Eogers, 228 U. S. ^S^\.%^*'^
534, 543, et seq.; Eeynolds v. N. Y. -7 A s-l^
Trust Co., 188 Fed. 611, 615. ^ f r-«^
H. & A. Bankruptcy — 26 ;
402 ADMINISTRATION
of another, not connected with or growing out of any con-
tractual relation, is provable in bankruptcy. The appellants,
Brown & Adams, are wool dealers in Boston, Mass., and have a
warehouse there for the storage of wool which adjoins a building
formerly used for a number of years by the United Button Com-
pany, bankrupt, as a factory; the two being simply separated
by a party wall. Wool in storage needs to be kept at a cool
and even temperature; and the charge is that, by reason of
excessive heat from the furnaces of the button company which
penetrated through the party wall, the wool of the appellants
was dried out and damaged, losing weight and depreciating in
price in consequence, to the extent of some $12,000. The button
company was put into bankruptcy in August, 1904, Just when,
prior to this time, the damages which are claimed accrued, is
not made clear, but it is fair to assume that some at least was
within the year, and the case will be disposed of upon that basis.
Claiming that the button company is liable for this loss, treat-
ing it either as the result of negligence or nuisance, proof is
sought to be made for it against the estate, liquidation of the
damages being suggested through the medium of a bill in equity,
now pending in the Superior Court for the county of Suffolk,
Mass., brought by the appellants a^gainst the button company
pand its trustee. The claim was rejected by the District Court
' without passing upon the merits, upon the ground that it was
not provable, and the propriety of that ruling is the question
here.
~~ Bankruptcy is supposedly concerned only with commercial
matters, and was early confined to traders. Loveland, § 3. And,
while it has been gradually extended and enlarged, the original
idea has not been altogether departed from. Its purpose is to
free a person from his debts or to subject him to proceedings on
account of them. This may not be controlling, but it is sug-
gestive ; and a construction which goes outside of it has certainly
to be justified.
By the bankruptcy act at present in force it is provided :
"§63. Debts Which May Be Proved.— a. Debts of the bank-
rupt may be proved and allowed against his estate which are
(1) a fixed liability, as evidenced by a judgment or an instru-
ment in writing, absolutely owing at the time of the filing of the
petition against him, whether then payable or not, with any
interest thereon which would have been recoverable at that
date or with a rebate of interest upon such as were not then
TORT CLAIMS 403
pa^'able and did not bear interest; (2) due as costs taxable
against an involuntary bankrupt who was at the time of the
filing of the petition against him plaintiff in a cause of action
which would pass to the trustee and which the trustee declines
to prosecute after notice; (3) founded upon a claim for taxable
costs incurred in good faith by a creditor before the filing of a
petition in an action to recover a provable debt; (4) founded
upon an open account, or upon a contract express or implied;
and (5) founded upon provable debts reduced to judgments after
the filing of the petition and before the consideration of the
bankrupt's application for a discharge, less costs incurred and
interest accrued after the filing of the petition and up to the
time of the entry of such judgments." Act July 1, 1898, c. 541,
30 Stat. 562 [U. S. Comp. St. 1901, p. 3447].
This to all intents is complete in itself, being given up to an
enumeration and specification of the debts which may be proved.
It is, however, further provided in this same section :
''b. Unliquidated claims against the bankrupt may, pursu-
ant to application to the court, be liquidated in such manner
as it shall direct, and may thereafter be proved and allowed
against his estate."
As contradistinguished from the paragraph which precedes
it, this subsection seems to be concerned with a mere matter of
procedure, directing how a claim which is open and unsettled —
such for instance as one "(4) founded upon an open account,
or upon a contract express or implied" precedently specified —
may be liquidated and made certain. And whether taken by
itself, or with reference to the immediate context, this is the
natural, if not the only, construction to be given to it.
It is contended, however, by the appellants, that it is in fact
intended to cover an additional and distinct class of claims, the
whole section, as indicated by its title, being devoted to thi
general subject of debts which are provable ; the one subsectiop
(a) dealing with those which are of a fixed and more or less
absolute character, such as judgments, costs, bills, notes, and ac-
counts, and the other (b) with those which require to be liqui-
dated, such as damages for torts; the word "debt," as defined
by the act — §1 (11) — including a "demand or claim," and
being thus broad enough to embrace both. This construction,
moreover, is made necessary, as it is said, in order to bring the
section into harmony with other parts of the act.
To the contrary of this, however, it is declared in Dunbar v.
;404 ADMINISTRATION
Dunbar, 190 U. S. 340, 350, 23 Sup. Ct. 757, 761, 47 L. ed. 1084,
that:
* ' This paragraph, ' b, ' * * * adds nothing to the class of
debts which might be proved under paragraph 'a' of the same
section. Its purpose is to permit an unliquidated claim, com-
ing within the provisions of § 63a, to be liquidated as the court
should direct."
It is true that this is somewhat aside from the immediate
question before the court, which was whether a discharge in
bankruptcy operated to release a contingent liability, such as
an annuity, which a husband upon his divorce agreed to pay to
his wife for the support of herself and their minor children.
But it is not to be assumed that a construction deliberately an-
nounced in this way was not^ considered by the whole couji;, or
went out unadvisedly, so as to stand as mere dictum. The law
is as it is declared to be by the Supreme Court speaking by one
or the other of its judges, and is not to be put aside upon any
such suggestion, except as there is no other alternative. That
the question is still open and undisposed of, however, notwith-
standing what is so held, is confidently affirmed upon the
strength of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49
L. ed. 147, where in discussing this section of the act it is said :
"Paragraph *a' * * * includes debts arising upon con-
tracts, express or implied, and open accounts, as well as for judg-
ments and costs. As to paragraph 'b,' two constructions are
possible: It may relate to all unliquidated demands, or only
to such as may arise upon such contracts, express or implied, as
are covered by paragraph *a,' "
It is upon the latter expression that the appellants particu-
larly rely. But whatever encouragement, standing by itself, it
may seem to lend, the court is careful to add :
"Whether the effect of paragraph *b' is to cause an unliqui-
dated claim, which is susceptible of liquidation, but is not liter-
ally embraced by paragraph 'a,' to be provable in bankruptcy,
we are not called upon to decide, as we are clear that the debt of
the plaintiff was embraced within the provisions of paragraph
'a' as one 'founded upon an open account, or upon a contract ex-
press or implied,' and might have been proved under § 63a had
plaintiff chosen to waive the tort, and take his place with the
other creditors of the estate."
Taking it altogether, therefore, this utterance does not seem
to carry us very far.
TORT CLAIMS
405
Assuming, however, that the question is an open one, let us
see to what an independent consideration of it leads. The argu-
ment is that the right to prove must, in justice, be coextensive
with the release to be obtained, and that, as it is plainly pro-
vided (§17) that the bankrupt shaU be discharged from lia-
bility for all but certain excepted torts, it must be that all
which are not so excepted are entitled to come in. As said by
Mr. Justice Brown, in Crawford v. Burke, supra:
**It certainly could not have been the intention of Congress
to extend the operation of the discharge under § 17 to debts thati
were not provable under § 63a.'' ^
The one section, according to this, is to be read in the light of
the other, and that construction adopted which will consist with
both.
Care is to be taken, however, in this comparison, not to reverse
the order of importance in which they are to be considered. Nor
in case of conflict to press the argument too far. If any sec-
tion is controlling in this regard, it is the section which declares
what debts are provable,.and not the contrary. It is not so much,
in other words, that a tort of the character which we have here
is discharged by the one, as that it is made provable by the other,
that gives it a standing against the estate. Even if the one were
true of it and not the other, the right to come in would not be
established, it beiag possible that there is a lapse in the law in
this respect, the result of imperfect adjustment, upon amend-
ment; a conclusion to be avoided, if it can be, but not at the
expense of that part of the statute which must necessarily
govern.
The strength of the argument in favor of claims for torts be-
ing provable, as is thus intimated, resides in the section with
regard to discharges, where it is provided:
^' § 17. Debts not Affected by a Discharge. — a. A discharge in
bankruptcy shall release a bankrupt from all of his provable
debts, except such as (1) are due as a tax levied by the United
States, the state, county, district, or municipality in which he re-
sides; (2) are liabilities for obtaining property by false pretenses
or false representations, or for wilful and malicious injuries to
the person or property of another, or for alimony due or to be-
come due, or for maintenance or support of wife or child, or for
seduction of an unmarried female, or for criminal conversation ;
(3) have not been duly scheduled in time for proof and allow-
ance, with the name of the creditor if known to the bankrupt.
o
406 ADMINISTRATION
unless such creditor had notice or actual knowledge of the pro-
ceedings in bankruptcy; or (4) were created by his fraud, em-
bezzlement, misappropriation, or defalcation while acting as an
officer or in any fiduciary capacity. ' '
As originally passed, instead of the word ^.^liabilities," in
clause 2, were the words .''judgments_in_ actions''; and after the
word "for" were the words "frauds, or"; while nothing what-
ever was said as to alimony, maintenance, seduction, or criminal
conversation. Claims grounded in fraud or the other causes
of action specified had, therefore, as the law then stood, to be
reduced to judgment in order to be saved from the effect of a
discharge. Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9,
49 L. ed. 147; BuUis v. O'Beime, 195 U. S. 606, 25 Sup. Ct.
118, 49 L. ed. 340. The reason why this distinction was made
is not clear, but it was probably, as suggested, in order to avoid
the temptation to claimants to try and bring their cases within
the exception, and to do away with the necessity for going into
conflicting evidence in order to do so. / Other cases of false pre-
tense, misrepresentation, or willful and malicious injury, not
so protected, were thus apparently left to be released by a dis-
charge.! And, as the distinction is now removed by the substitu-
tion of the word "liabilities" for "judgments," and the excep-
tion still further enlarged by the addition of seduction and
criminal conversation, the argument is that all torts not so ex-
cepted, being left to be operated upon by a discharge, must have
the reciprocal right to come in and be proved against the estate,
if a manifest inconsistency, not to say injustice, is to be avoided.
It must be confessed that this is not easy to meet. Seduction
and criminal conversation are torts, pure and simple, and can-
not be resolved away, like some, as being possibly tied up to a
contract. And if it was considered necessary to except these
by name, without which a discharge would release them, why are
not other torts such as the one which we have here, growing out
of negligence or nuisance, in the same situation ? Slightly modi-
fying the words of Mr. Justice Brown in Crawford v. Burke,
supra: If no tort could be made the basis of a provable debt,
why were certain torts excepted ? Nor is the force of this weak-
ened by the fact that, according to the decision in Tinker v. Col-
well, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. ed. 754, criminal con-
versation, at least when reduced to judgment, was already taken
car^ of, the same as maintenance and alimony, as to which, to
that extent, the amendment of 1903 may be regarded as merely
TORT CLAIMS 407
declaratory. Audubon v. Shufeldt, 181 U. S. 575, 21 Sup. Ct.
735, 45 L. ed. 1009 ; Dunbar v. Dunbar, 190 U. S. 340, 23 Sup.
Ct. 757, 47 L. ed. 1084; Wetmore v. Markoe, 196 U. S. 68, 25
Sup. Ct. 172, 49 L. ed. 390.
It is to be observed, however, that the construction which is
contended for grows out, not of positive, but exceptive, legis-
lation. It is not declared what debts shall be released, but what
shall not be. And they must, in terms, be first provable, in order
to be excepted, and not the contrary. The only difficulty that is
experienced, also, is with regard to the changes introduced by
the amendment of 1903, in part, as we have seen, unnecessary ; as
to which, it may well be that in providing, out of extra caution,
that certain things should not be discharged, care was not taken
to note the possible effect upon other parts of the law, or to
adjust them to this, producing the present want of harmony.
For, after all has been said, it must be recognized that there is
a want of harmony between these two different parts of the stat- X-tC^v
ute, not, indeed, as originally enacted, but now, as they stand, v-^^-l
after amendment. The one section (17) with regard to the
effect of a discharge assumes that torts generally are provable "^^^^A
and proceeds acccordmglv : while the other (63) makes nojiCQr
vision for anything of the kind, except by a construction which
it is safe to say was not in contemplation when it was passed,
and cannot consistently be read into it. The true view to be
taken ot it has been already indicated. The first of the two para-
graphs into which it is divided is given up to an enumeration
of the debts which are entitled to be proved against the estate,
among which is to be found everything in the way of a fixed
obligation, or which, as being of a commercial character, a
bankrupt could expect to be relieved from; and, complete in it-
self, it is not to be added to. The other paragraph plainly has
to do with a mere matter of procedure; how unliquidated
claims founded upon open account or contract, specified in the
preceding paragraph, may be liquidated or settled. Nor can it
properly be made to serve any other purpose. Argument may
amplify this, but cannot make it clearer. And as so interpreted
a claim for damages, such as the one before us, is not included
among debts which are made provable. This, if not the latest
deliverance of the statute (the amendment of 1903 having to be
accorded that position), as the one devoted specifically to the
subject, must control. 26 Am. & Eng. EncycL Law (2d ed.) 68.
It may be that the conclusion which is so reached, if it is to
4D8 ADMINISTRATION
;jpx.vT;w.T^\i^"i«j
abridge correlatively the effect of a discharge, is not altogether
favorable to the bankrupt, who is interested in being relieved
from his liabilities to the fullest extent possible. But this ques-
tion is not before the court, and it will be time enough to meet
it when it is.
There was no error, therefore, in the rejection of the appel-
lants' claim, and the judgment is affirmed.
GRAY, Circuit Judge (concurring). While concurring in
the result reached by the majority of the court, and to some
extent in the reasoning employed in reaching that result, I am
constrained to think that the ratio decidendi of the court be-
low is that upon which our decision should rest. Without
attempting to amplify or paraphrase the opinion of the learned
judge of that court (In re United Button Co. [D. C] 140 Fed.
495), it is sufficient, in referring to § 17, to again note that the
debts which "a discharge in bankruptcy shall release," are
such debts only as are provable under § 63, and the debts which
are excepted from discharge, being among others liabilities for
certain torts, are also necessarily provable debts. If it be said
that "wilful and malicious injuries to the person or property of
another," and "seduction" or "criminal conversation" are
torts, pure and simple, and as such incapable of liquidation and
proof under § 63, it may be replied that liabilities for such torts,
when reduced to judgment, are provable, and come within the
classification of § 17a (2) as "liabilities" for certain torts. Be
this as it may, it is true, however, that even if, out of abundant
caution, certain of the torts which are included in the excepting
clause could not have been liquidated and proven under § 63,
still the fact that the excepting clause in this respect overlaps
provable debts and includes some that are not provable, does not
nullify the qualifying effect of the word "provable," as limiting
the debts to be excepted, as well as these which are discharged by
§ 17, and, as said in the majority opinion of this court, cannot
serve to abrogate or qualify the description of provable debts
as contained in § 63.
In this view, the two sections, 63 and 17, are not necessarily
irreconcilable.®
6_As to provability of claim for Works, 23 Fed. 880. But cf. In
profits for infringement of patent re Pavement Co., 156 Fed. 583; In
iee In re Boston & Fairhaven Iron re Awning Hood Co., 187 Fed. 611.
(M/yurrd ljf\ \K^ ^
UNLIQUIDATED CLAIMS 409
C. Contract Claims
1. Unliquidated Claims i i^
GRANT SHOE CO. v. LAIRD CO. 1^^^ \)^
212 U. S. 445, 53 L. ed. 591, 29 Sup. Ct. 332
(United States Supreme Court. February 23, 1909)
Mr. Justice HOLMES delivered the opinion of the court:
This ease comes up on a certificate conceriling the jurisdiction
of the District Court on the following facts : The W. M. Laird
Company filed a petition in bankruptcy against the Frederic L.
Grant Shoe Company, alleging acts of bankruptcy, and setting
up a claim for $3,732.80 for the breach of an express warranty
of shoes sold to it by the latter. The shoe company answered,
denying the foregoing allegations, and denying that the claim
alleged was a provable claim. The case coming on to be tried
before a jury, it moved the court to dismiss the proceeding for
want of jurisdiction. The motion was denied, and insolvency
and acts of bankruptcy being admitted, the claim was liquidated
at $3,454, the shoe company offering no evidence. The shoe com-
pany was adjudged a bankrupt, and, at the same time, the judge
certified that the jurisdiction of the court to make such an adju-
dication on a claim for unliquidated damages was the only ques-
tion in issue. Afterwards this writ of error was brought, the
taking of jurisdiction being the only error assigned.
Coming to the question certified, we are of opinion that the
decision of the courts below was right. The argument to the
contrary is based on the letter of the statute, and is easily stated
and understood. By_| 596 petitions to have a debtor adjudged
a bankrupt may be filed only by creditors who have provable
claims. By § 63&, "Unliquidated claims against the bankrupt
may, pursuant to application to the court, be liquidated in such
manner as it shall direct, and may thereafter be proved and
allowed against his estate." The word "thereafter" shows, it
is said, that they are not yet proved to exist when merely pre-
sented and sworn to. Therefore it does not yet appear that there
is any foundation for the proceeding, in the requisite amount
or even the existence of the claim. But there must be a proceed-
ing in court before a liquidation can take place, and, therefore,
the claim cannot be liquidated until a proceeding is started in
410 ADMINISTRATION
some other way. In short, the e'laiin upon which the petition
is based must be provable when the petition is filed, and this
claim was not provable then, since, by the express words of the
act, it had to be liquidated before it could be proved.
On the other hand, by the equally express words of § 63a,
among the debts that may ])e proved are those founded upon a
contract, express or implied. Again, by § 17, the discharge is
of all "provable debts" with certain exceptions, and it would
not be denied that this claim would be barred by a discharge.
Tindle v. Birkett, 205 U. S. 183, 51 L. ed. 762, 27 Sup. Ct Rep.
493. If the argument for the plaintiff in error is sound, a cred-
itor for goods sold on a quantum valebant would be as badly
off as the petitioner, and both of them might be postponed in
reducing their claims to judgment until it was too late. The in-
timation in Tindle v. Birkett, supra, and Crawford v. Burke,
195 U. S. 176, 49 L. ed. 147, 25 Sup. Ct. Rep. 9, are adverse to
such a result. The whole argument from the letter of the statute
depends on reading "provable claims" in § 596 as meaning
claims that may be proved then and there when the petition is
filed. But, if it can be seen then and there that the claims are
of a kind that can t>e proved In ttlg1?foceedings, the words are
satisfied ; and further, no reason appears why a liquidation may
not be ordered on the filing of the petition, to ascertain whether
it is filed rightly or not.
It is said that an unfounded claim of this sort might be used
/ . as a weapon to enforce an unjust demand or to make a solvent
'A but struggling debtor bankrupt. Re Big Meadows Gas Co., 113
\ \ .Jfr Fed. 974. But an unjust demand may be made for a liquidated
ii^*^ sum, also, and Ave have mentioned the injustice on the other side.
L^ . Again, it has been suggested that a cause of action for a breach
of warranty really is for deceit, and sounds in tort, claims for
torts not being mentioned among the "debts which may be
proved" in § 63a. Re Morales, 105 Fed. 761. No doubt at com-
mon law a false statement as to present facts gave rise to an
action of tort, if the statement was made at the risk of the
speaker, and led to harm. But ordinarily the risk was not taken
by the speaker unless the statement was fraudulent ; and it was
precisely because it was a warranty, — that is, an absolute un-
dertaking by contract that a fact was true, — that, if a warranty
was alleged, it was not necessary to lay the scienter. Sehuch-
ardt V. Allen, 1 Wall. 350, 17 L. ed. 642 ; Norton v. Doherty, 3
Gray, 372, 63 Am. Dec. 758. In other words, a claim on a war-
{
CONTINGENT CLAIMS 411
ranty, as such, necessarily was a claim arising out of a con-
tract, even if, in case of actual fraud, there might be an inde-
pendent claim purely in tort.
Judgment affirmed J
Contingent Claims zi"^- ,
MOCH V. MARKET ST. NAT. BANK ^^ -U) "^ •
In re GERSON
107 Fed. 897, 47 C. C. A. 49 € ,.nx}Ji^
(Circuit Court of Appeals, Third Circuit. April 22, 1901)
ACHESON, Circuit Judge. The question presented by this
appeal is whether the liability of a bankrupt indorser of commer-
cial paper, whose liability did not become absolute until after the
filing of the petition in bankruptcy, may be proved against his
estate after such liability has become fixed, and within the time
limited for proving claims. By the first section of the bankrupt
law, — the act of July 1, 1898, — it is declared that the word
' ' debt, ' ' as used in the act, shall include ' ' any debt, demand, or
claim provable in bankruptcy. " § 63 declares what debts of
the bankruptcy may be proved and allowed against his estate,
and ranges the provable debts in five subdivisions, numbered
from 1 to 5, inclusive. For present purposes we need quote only
two of those subdivisions, namely :
" (1) A fixed liability, as evidenced by a judgment or an in-
strument in writing, absolutely owing at the time of the filing
of the petition against him, whether then payable or not, with
any interest thereon which would have been recoverable at that
date or with a rebate of interest upon such as were not then pay-,
able and did not bear interest;" ''(4) founded upon an open
account, or upon a contract express or implied."
Clearly the liability of an indorser is within the very words
of this fourth subdivision. As was said by the Supreme Court
in Martin v. Cole, 104 U. S. 30, 37, 26 L. ed. 647, the contract
created by the indorsement of commercial paper is an express
7 — As to provability of claim for v. Magwire, 15 Wall. 549; Beed v.
damages for breaches of covenants Pierce, 36 Me. 455.
for title in deed of land see Eiggin
412 ADMINISTRATION
contract, ' ' and ' ' its terms are certain, fixed, and definite. ' ' The
iudorser's engagement is to pay a sum certain at a fixed date,
to wit, the amount of the bill- or note at its maturity, if it is
not paid upon due presentment by the party primarily liable,
upon due notice of its dishonor being given to the indorser. If
it can be affirmed that such an unmatured liability is not a
"debt," in a technical sense, certainly it is a "demand" or
"daim^' and comes, it seems to us, within the scope of the
fourth subdivision of § 63 of the act. The primary purpose of
the bankrupt act was to relieve insolvent debtors from their
pecuniary liabilities, and to secure ratable distribution of their
estates among their creditors. It is not, then, to be lightly be-
lieved that congress intended to exclude from the operation and
benefits of the act unmatured indorsements of commercial paper,
which in every commercial community so often constitute a large
proportion of the indebtedness of failing debtors. Of course, if
not provable, such liabilities are not discharged. Now, a con-
struction leading to results so foreign to the general purpose
of the law is not to be adopted unless plainly required by the
language of the act. We cannot see that such an interpretation
is demanded by anything contained in the act. The first and
fourth subdivisions of § 63 are distinct provisions, and are, we
think, independent of each other. We are unable to agree to
the proposition that subdivision 1 qualifies, and is to be carried
down and read into, subdivision 4. On the face of the act they
are distinct. Moreover, reasonable effect can be given to both
by treating them as separate and independent clauses. There
are well-known instruments — for example, surety bonds — under
which the liability is contingent on future defaults, and where
the amount of liability is wholly uncertain, depending on the
nature of the default. To instruments of this character, where
the liability is remote and is uncertain in amount and other-,
wise, subdivision 1 is fairly referable; but we think, with* the
court below, that the contract created by the indorsement of com-
mercial paper is not governed by that subdivision, but falls
within subdivision 4, which embraces debts, claims, or demands
founded upon contracts, express or implied. Accordingly the
order of the District Court allowing the claim of the Market
Street National Bank against the estate of the bankrupt, Joel
J. Gerson, is affirmed.
CONTINGENT CLAIMS 413
PHILLIPS et al. v. DREHER SHOE CO. ^ ^'^t^. -
112 Fed. 404 '^r-C^ : '''^ -^.j^
(District Court, M. D. Pennsylvania. January 9, 1902) ^^: y^^ct
ARCHBALD, District Judge. On September 16, 1901, H. L.
Phillips and nine others, all of Selins Grove, Pa., filed a cred-
itors' petition against W. A. Dreher and Floyd A. Wetherby,
traHing as the Dreher Shoe Company, of the same place, to have
them declared bankrupts on the ground that they were insolvent,
and had made an assignment for the benefit of creditors. In
the petition they set forth that they were creditors of the said
company having provable claims amounting in the aggregate to
$1,000, each of the petitioners being an indorser or surety upon
one of a series of ten notes for $100 each, signed by the Dreher
Shoe Company, dated May 1, 1901, and payable in one year from
date; these notes having been discounted by the First National
Bank of Selins Grove, and then held by it. On this showing a
subpoena and order to show cause were issued, returnable Oc-
tober 26th, and duly served. No response was made at the return
day by the alleged bankrupts, but on October 28th Fr. Otto
MuUer and two other creditors came in and obtained a rule to
show cause why the proceedings should not be dismissed be-
cause the petitioners did not hold provable claims, and in this,
on November 19th, the alleged bankrupts and two other creditors
joined. A copy of one of the notes — which are all alike — was
produced at the argument, and shows that the petitioners axe
not indorsers, but joint makers with the Dreher Shoe Company. Jrf ~l^a
But, however that may be, they were at the time of filing the -^-vf-
petition, and still are, sureties, and no more. The bank holds ,^^/-
the notes, by which they, as well as the principal debtors, are
bound ; and, while it declines to move, and has at the same time
notified the sureties that they will be looked to, nothing has been
done to enforce the obligations, which are, in fact, not yet due;
nor have the sureti^g pair! or been called upon to pay them. Un-^
der such f.iygiF'Sitapr'.e.^ it is djfFianU, to s^p bnw f.hf» profipAdinjgx
oan be naaintained. On each of the notes referred to the debt
or claim is that of the holder of the obligation to whom it is due,
the surety having no direct interest in it, being only secondarily
or contingently liable. He may pay the debt, and become the!
holder, with all the rights incident thereto ; but unless and until |
he does he occupies a secondary and subordinate petition. The
414 ADMINISTRATION
right to move is, in the first instance, lodged in the one who is
actually possessed of the obligation of the debtor. The surety
has, however, an interest to protect, which the bankruptcy law
recognizes ; and, in order to accord him what it considers a proper
f measure of relief, it provides in § 57* that "whenever a creditor,
\ whose claim against a bankrupt estate is secured by the indi-
\ vidual undertaking of any person, fails to prove such claim, such
1 person may do so in the creditor's name, and if he discharge
[ such undertaking in whole or in part, he shall be subrogated to
that extent to the rights of the creditor. ' ' No one has any rights
I under the bankrupt law outside of what it gives him, and those
of a surety are defined by this section, beyond which he cannot
go. By it he has the right to prove, in case the principal cred-
itor fails to do so. He does not, indeed, have to discharge the
obligation in order to have this privilege, but, in case he does
do so, in whole or in part, he becomes entitled to that extent
to the right of subrogation, and, in any event, when he proves
the debt, he proves it not in his own name, but in that of the
original holder. In re Christ^nsen, 2 Nat. Bankr. N. 1094. The
particular point to be noticed in the present connection with
regard to the position of the surety is that he only has a right
to prove in case the principal creditor fails to do so, and the
latter cannot be said to fail until he has had an opportunity and
passed it by, which can only occur when, by proceedings duly
instituted, the estate of the debtor has been drawn into the bank-
ruptcy court to be there administered, and all parties have been
called upon to make known their claims. "When that has been
done, and he neglects to act, the surety, so as not to be preju-
diced, may himself prove the debt in his stead. This, so far as
I can see, is all the relief given by the act, and, whether adequate
or inadequate, it must suffice. It follows from this that at the
outstart the surety who has not taken up the obligation has
no provable claim, and therefore has no standing to petition. It
is not provided in the law that at that stage he can intervene,
(either in his own name or in the name of the creditor, and in-
stitute involuntary proceedings. All that he can do is to prove
the claim later on, if the creditor fails to do so after somebody
else has moved. This is the view taken by In re Riker, 18 Nat.
Bankr. R. 393, Fed. Cas. No. 11,833, a case arising under the
act of 1867, where the provisions were fully as favorable to the
surety as here. Two of the petitioners there were indorsers on
notes of the debtor, which had been turned over for value to a
CONTINGENT CLAIMS 415
third party, in whose hands they had been dishonored at ma-
turity, and the indorsers notified that they would be held; and,
notwithstanding that their liability was so fixed, it was decided
that they were not entitled to petition. "It seems," says
Choate, J., "the notes objected to were not demands due abso-
lutely to the petitioning creditors, but on which, in case the
holders should not prove, they could make proof * * • in
the creditor's name or otherwise. The holder is the creditor,
who, in the first instance, has exclusively the right to prove;
and the liability of the maker to the indorsers is only contingent
in its nature, and his claim is only provable in a certain event,
which cannot happen until after the adjudication, viz., the
neglect of the holder to prove." This is squarely to the point,
and confirms my own reading of the law. Nor do I find anything
to contravene it in Mace v. Wells, 7 How. 272, 12 L. ed. 698, or
In re Nickodemus, 3 Nat. Bankr. R. 230, Fed. Cas. No. 10,254,
relied on by counsel for the petitioners. I am forced, therefore,
to conclude that the sureties had no standing to institute the
present proceedings, which must accordingly fall.
The rule is made absolute, and the petition and all proceed- i^ ,
ings thereunder are dismissed.^ y .-- t^'-'
SWARTS V. SIEGEL et al. ''f^ }^'- x
117 Fed. 13, 54 C. C. A. 399 a. - n ^
(Circuit Court of Appeals, Eighth Circuit. July 21, 1902)^
jjf
SANBORN, Circuit Judge. These are appeals from the decree
of the District Court directing that the claim of F. Siegel &
Bro. against the estate of the Siegel-Hillman Dry Goods Com- ^^ "^
pany, a corporation and a bankrupt, be disallowed unless the - l
claimants repay to the trustee the sums of $14,600 and $5,219,63, ,.}*:M*
which the court held to constitute preferences given to the ^ ,
claimants which they were required to surrender under § 57gr V^
of the bankrupt act of 1898. The claimants appealed from this I. <^
decree because it required them to restore the $14,600 and the •
$5,219.63 as a condition of the allowance of their claim. The
trustee appealed from it because it did not require the claimants
8 — See Insley v. Garside, 121 Fed. fi^
699; In re Dr. Vorhees Co., 187 ^^'^ -*,/;,
Fed. 611, 629, 633. .^:..y^;...V.«^:i^^?t-t^^ j^
h f
416 ADMINISTRATION
to repay to him $20,000 more as a condition of the allowance of
their claim,
1. * * * Four months prior to February 6, 1900, when
the dry goods company was adjudicated a bankrupt, the Fourth
National Bank of St. Louis held the promissory notes of this
corporation for $25,000 upon which the claimants, F. Siegel &
Bro., had indorsed their names before the notes were discounted
for the purpose of giving them credit, so that they became
^accommodation makers thereon. Within four months preceding
the filing of the petition in bankruptcy, the dry goods company,
while it was insolvent, paid to the bank $14,600 on some of these
notes, and the bank innocently received these payments. On
December 30, 1899, when the petition in bankruptcy was filed,
the bank held a claim against the corporation for $10,600 and
interest upon some of these notes which had been indorsed by
the claimants, and for $35,000 upon other notes of the bankrupt
which had not been so indorsed. After the adjudication in
bankruptcy Siegel & Bro. paid $10,535.46, the amount which
remained due upon some of these notes which they had indorsed,
and one of the items of their claim against the estate of the bank-
rupt is the amount which they so paid. Their claim consists of
various items aggregating about $35,000. The court below di-
rected the disallowance of their claim unless they refunded the
$14,600 which the bank had received on the notes which Siegel &
Bro. had indorsed.
*********
[After discussing the question of subrogation, the court con-
tinued] :
There is another reason why Siegel & Bro. are not entitled to
the allowance of their claim unless the $14,600 is repaid. It is
that they were creditors of the dry goods company when that
. ^\ I amount was paid to the bank. A creditor is ' ' one who gives
•^ ^/ credit in business transactions. ' ' Cent. Diet. p. 1341, tit. ' ' Cred-
itor." Siegel & Bro. gave credit to the dry goods company in a
business transaction. They signed its notes, became absolutely
liable to pay them, and thereby gave it credit. If they had simply
indorsed them, and thus become only contingently liable, the same
result would have followed. One who loans his credit to another
is as much his creditor as one who loans his money to him. A
creditor is "one who has the right to require the fulfillment of
an obligation or contract." Bouv. Law Diet. p. 435. An in-
dorser, an accommodation maker, or a surety on a^ obligation
CONTINGENT CLAIMS 417
of a debtor has a right to require the fulfillment of the obliga-
tion or contract of that debtor. " 'Creditor' shall include any-
one who owns a demand or claim provable in bankruptcy." § 1,
subd. 9, Bankr, Law 1898. "Debts of a bankrupt may be proved
and allowed against his estate which are (1) a fixed liability
• * * (4) founded upon an open account or upon a con-
tract express or implied. " § 63. Provision is here made for the
proof of two classes of debts, — those which evidence fixed liabili-
ties of the debtor, and those founded upon contracts which evi-
dence contingent or uncertain liabilities. The debt of a principal
debtor to his indorser, his accommodation maker, or his surety
before the latter has paid the obligation is a contingent liability
founded upon contract, and falls directly within the terms and
meaning of subdivision 4 of this section. To make assurance
doubly sure, however, congress expressly provided that "when-
ever a creditor, whose claim against a bankrupt estate is se-
cured by the individual undertaking of any person, fails to
prove such claim, such person may do so in the creditor's name,
and if he discharge such undertaking in whole or in part he shall
be subrogated to that extent to the rights of the creditor. ' ' § 57*.
An indorser, an accommodation maker, or a surety on the obliga-
tion of a bankrupt is a person whose individual undertaking
secures the claim against the bankrupt estate of the holder of that
obligation, and by the terms of this section he may prove that
claim whenever the creditor fails to do so. The langua^ is
broad, comprehensive, and without exception. He has the same
right to prove it before as after he discharges the obligation in
whole or in part, and if he is an indorser he has the same right
to make his proof before as after his liability ceases to be con-
tingent and becomes fixed. The last clause of the paragraph,
"and if he discharge such undertaking in whole or in part he
shall be subrogated to that extent to the rights of the creditor, ' '
neither limits the class who may prove their claims under this
paragraph to those who have discharged their undertakings
entirely or partly, nor in any way restricts the class which the
earlier portion of the paragraph permits to establish their de-
mands against the estate of the bankrupt. Oii the other hand, it
adds emphasis and certainty to the patent meaning of the earlier
portion of the para^aph that the indorser or surety may prove
the claim in the name of the holder of the bankrupt's obligation
whenever the creditor fails to do so, and before, as well as
after, the surety discharges his undertakings, because, while such
H. & A. Bankruptcy — 2 7
418 ADMINISTRATION
proof in the name of the creditor would send the dividends to
the original holder of the claim, the latter portion of the para-
graph adds the provision that if the surety discharges his un-
dertaking he shall then be subrogated to the rights of the original
holder, and hence to the right to receive the dividends. §§ 57 i
and 63 (4) were obviously intended to prevent the injustice that
would be inflicted upon indorsers and sureti^ for the bankrupt
whenever the holders of their obligations^ should elect to make no
proof of their claims against the bankrupt estates, and to rely
exclusively upon the liabilities of the sureties if the latter were
not allowed to prove the claims. These sections have accom-
plished their purpose. The remedy they provided is as broad
and comprehensive as the evil which they were passed to pre-
vent, and an indorser or a surety has a provable claim against
the estate of a bankrupt, and is his creditor under the act of
1898 before, as well as after, his liability becomes fixed.
An indorser, an accommodation maker, or a surety on the
'obligation of a bankrupt is a creditor under the act of 1898,
and a payment on such an obligation by the principal debtor
while insolvent to the innocent holder of the contract within
four months before the filing of the petition for adjudication in
bankruptcy will constitute a preference which will debar the
indorser, accommodation maker, or surety from the allowance
of any claim in his favor against the estate of the bankrupt
unless the amount so paid is first returned to that estate. Bankr.
Act 1898 (30 Stat. 544) §§ 1 (9), 57% 63a (1, 4) ; Landry v.
Andrews, 6 Am. Bankr. R. 281, 284, 48 Atl. 1036 ; In re Rea, 82
Iowa, 231, 239, 48 N. W. 78 ; Cutler v. Steele, 85 Mich. 627, 632,
48 N. W. 631 ; Dunnigan v. Stevens, 122 111. 396, 401, 404, 13
N. E. 651, 3 Am. St. Rep. 496 ; Ahl v. Thornor, 1 Fed. Cas. 220,
222 (No. 103) ; Sill v. Solberg (C. C), 6 Fed. 468, 474, 477;
Scammon v. Cole, 21 Fed. Cas. 627, 628 (No. 12,432) ; Cooking-
ham v. Morgan, 6 Fed. Cas. 454, 455 (No. 3,183) ; In re Gerson
(D. C), 105 Fed. 891; Bartholow v. Bean, 18 Wall. 635, 21 L.
ed. 866; In re Waterbury Furniture Co. (D. C), 114 Fed. 255.
This conclusion has not been reached without a careful com-
parison of the pertinent provisions of §§38 and 39 of the bank-
rupt act of 1867 (14 Stat. 535, 536), and a thoughtful perusal
of the opinions in Singer v. Sloan, Fed. Cas. No. 12,899 ; Thomas
V. Woodbury, Fed. Cas. No. 13,916; Bean v. Laflin, Fed. Cas.
No. 1,172; Corbett v. Woodward, Fed. Cas. No. 3,223; and
CONTINGENT CLAIMS 419
Swarts V. Siegel (C. C), 114 Fed. 1001. This portion of our
labors^ however, has been fruitless chiefly for the reason that
' the language of the act of 1898 upon this subject appears to us
T6 b6 too plain lor exegesis or interpretation. Attempted judicial
'coilstnietion of the unequivocal language of a statute or of a
contract serves only to create doubt and to confuse the judgment.
There is no safer or better settled canon of interpretation than
that when language is clear and unambiguous it must be held to
mean what it plainly expresses, and no room is left for con-
struction. Knox Co. V. Morton, 15 C. C. A. 671, 673, 68 Fed.
787, 789 ; Railway Co. v. Sage, 17 C. C. A. 558, 565, 71 Fed. 40,
47; U. S. V. Fisher, 2 Cranch, 358, 399, 2 L. ed. 304; Railway
Co. V. Phelps, 137 U. S. 528, 536, 11 Sup. Ct. 168, 34 L. ed. 767.
The accepted and customary definition of the term * * creditor, ' '
its definition in the act of 1898, the clear terms and patent
meaning of the provisions of that act upon the subject under
discussion, the better reasons and the greater weight of authority,
all converge to establish and sustain the conclusion that an in-
dorser, an accommodation maker, or a surety for a bankrupt is
his creditor; and the result is that whether we are governed by
the general definition of the term, or by the specific provisions
of the statute, Siegel & Bro. held a provable claim against the
estate of the dry goods company, and were its creditors when
the $14,600 was paid to the bank ; and as that payment depleted
the estate, and its enforcement will enable Siegel & Bro. to ob-
tain a larger percentage of their claim out of the estate of the
bankrupt than other creditors of the same class will receive,
their claim against the estate cannot be allowed unless the $14,600
is first returned to the trustee.
* * *
The result is that the claim of F. Siegel & Bro. against the A yu^p J
estate of the bankrupt cannot be lawfully allowed unless before j
its allowance * * * the sum of $14,600 is paid back to the A
trustee either by the Fourth National Bank of St. Louis or by i ^ "^ 7
Siegel & Bro. * * * The decree which is challenged by these ^ "^c4 «
appeals is reversed, and the case is remanded to the court be-
low, with directions to enter orders and take further proceed-
ings herein not inconsistent with the views expressed in this
opinion and in the opinion in the case of Swarts v. Fourth Nat.
Bank, which is filed herewith. '
420 ADMINISTRATION ' .
GODING V. ROSCENTHAL
180 Mass. 43, 61 N. E. 222
(Supreme Judicial Court of Massachusetts. October 18, 1901)
BARKER, J. By the execution of the bond of March 29, 1898,
to Aug, in which the present plaintiff was a surety for the
present defendant, the latter incurred an obligation to the pres-
ent plaintiff. to reimburse him any amount which he might be
compelled as surety to pay upon the bond. This obligation was
in force when, on February 13, 1900, the present defendant's
petition in bankruptcy was filed. It was an obligation founded
upon an implied contract, and it was evidenced by an instrument
in writing, and in one sense it was a fixed liability. But no debt
was absolutely owing at the time of the petition. The obliga-
tion was contingent upon the happening of a breach of the bond
and a payment by the surety. The payment by the surety was
not until June 12, 1900, and there seems to have been no breach
j of the bond before that date. Therefore neither the obligee in
\ the bond nor the surety could prove in the bankruptcy proceed-
/ ings a claim foulided upon the bond, unless merely contingent
/ claims are provable under the bankruptcy act of 1898. The ulti-
/ mate decision of that question is yet to be made by the Supreme
Court of the Unit^ States. But in Morgan v. Wordell, 178 Mass.
350, 59 N. E. 1037, this court assumed that such claims were
not provable under the act, and we follow that view in the
present case.
Exceptions sustained.®
HAYER V. COMSTOCK
115 Iowa 187, 88 N. W. 351
(Supreme Court of Iowa. December 20, 1901)
GIVEN, C. J. 1. The agreed statement of facts is as follows :
"On May 26, 1900, the following agreed statement of facts was
filed with the clerk of the Wright County District Court, to-wit :
'It is hereby agreed by and between the plaintiff and the de-
fendant in the above-entitled action that on December 2, 1893,
9 — Smith V. McQuillin, 193 Mass. ; liams & Co. v. U. S. Fidelity, etc.,
289; pgilby v. Hunro, 101 N. Y. Co., 11 Ga. App. 635, 75 S. E.
Supp. 753, 52 Misc. 170; R. P. Wil- 1067, ace.
CONTINGENT CLAIMS 421
the plaintiff, C. F. Hayer, signed the note attached to this state-
ment as surety for the defendant ; that the defendant failed and
neglected to pay said note; that on April 1, 1899, the plaintiff
had to, and did, pay the full amount of said note, to-wit, $193.66,
to the State Bank of Eagle Grove, Iowa, and that no part of
said amount has been repaid him; that in December, 1898, the
defendant filed his petition in the District Court of the United
States for the Northern District of Iowa, and was duly and
legally adjudged a voluntary bankrupt under the acts of Con-
gress relating to bankruptcy ; that said note was duly scheduled
in said bankruptcy proceedings as one of defendant 's liabilities ;
that in such schedule the State Bank of Eagle Grove, Iowa,
payee of said note, was named as the owner and holder thereof,
and was duly notified of each step in said bankruptcy proceed-
ings as required by law ; that in December, 1898, plaintiff, C. P.
Hayer, was informed by others of the pendency of said bank-
ruptcy proceedings, and had actual knowledge thereof after the
filing of the petition, although he was not listed as a creditor
therein ; that on April 3, 1899, this defendant was by the judg-
ment of said United States Court discharged from all his debts ;
that a certificate of such discharge was issued by said court and
delivered to defendant, a copy of which certificate is attached
to defendant's answer herein, and is hereby made a part of this
statement of facts.' " The certificate of discharge is: "From
all debts and claims which existed on the 6th day of December,
A. D. 1898, on which day the petition for adjudication was filed
by him, except such debts as are by law excepted from the
operation of such discharge in bankruptcy," This claim is not
of the class excepted by law. The plaintiff claims that as he
had not, as surety, paid the note at the time the petition for
adjudication in bankruptcy was filed, there was no debt then
due to him, and he could not have his claim scheduled against
the bankrupt's estate; that he had no provable claim; and that
the discharge does not apply to his claim; while the defendant
contends that under the facts the discharge does apply, and
that therefore the court erred in rendering judgment against
him.
§ 17 of the bankruptcy law of 1898, under which this pro-
ceeding was had, provides that ' ' a discharge in bankruptcy shall
release a bankrupt from all of his provable debts," except cer-
tain debts of which this is not one. § 63, in specifying debts
which may be proved and allowed, names the following, among
422 : ; , /ADMINISTRATION
others: " (1) A fixed liability as evidenced by judgment or an
instrument in writing absolutely owing at the time of the filing
of the petition against him, whether then payable or not, with
any interest thereon which would have been recoverable at that
date or with a rebate of interest upon such as were not then
payable and did not bear interest. * * * (4) Founded upon
an open account, or upon a contract express or implied." § 16
provides that the liability of the surety for a bankrupt shall not
be altered by the discharge of such bankrupt, and paragraph
"V of § 57 is as follows: "Whenever a creditor, whose claim
against a bankrupt estate is secured by the individual under-
taking of any person, fails to prove such claim, such person may
do so in the creditor's name, and if he discharge such undertak-
ing in whole or in part he shall be subrogated to that extent to
the rights of the creditor." Paragraph 4 of order No. 21 of
"General Orders and Forms in Bankruptcy Established by the
Supreme Court of the United States" (18 Sup, Ct. vii.) is as
follows: "(4) The claims of persons contingently liable for
the bankrupt may be proved in the name of the creditor when
known by the party contingently liable. When the name of the
creditor is unknown such claim may be proved in the name of
the party contingently liable; but no dividend shall be paid
upon such claim, except upon satisfactory proof that it will
diminish the pro tanto original debt."
(This debt was a fixed liability evidenced by an instrument in
wj^jtiag, and absolutely owing by the defendant at the time of
the filing of the petition in bankruptcy, and therefore might be
proved against the estate as it was. It is the fact that the bank-
rupt absolutely owed this fixed liability, evidenced in writing, at
the time of the filing of the petition, that made it provable,
regardless of the person to whom it was owing. If the creditor
had failed to prove the claim, the plaintiff could have done so
in its name, not because the debt was then due to him, but be-
cause it was a fixed liability, evidenced in writing, and abso-
lutely owing by the defendant. Being proved as it was by the
creditor, it was not required that the surety should take any
, further steps. We do not overlook the distinctions that exist as
between liability of the debtor to the creditor and his liability
! to his surety, but we emphasize the fact that it was the fixed
I liability, evidenced in writing, "absolutely owing" by the de-
I f endant, that made this a provable claim against his estate. Said
paragraphs in § 57 and in the general orders of the Supreme
CONTINGENT CLAIMS 423
Court recognize the right of the surety to protect himself before
payment, and when his liability is contingent, and to share in
the dividends of the estate after payment. Mace v. Wells, 7
How. 275, 12 L. ed. 698, decided under the bankruptcy law of
1841, is quite identical in its facts with this case, and it was
there held that the plaintiff was not entitled to recover. The
fourth section of the law provided that "a discharge and certi-
ficate, when duly granted, shall in all courts of justice be deemed
a full and complete discharge of all debts, contracts and other
engagements of such bankrupt which are provable under this
act," etc. By the fifth section, "endorsers, bail, or other per-
sons having uncertain or contingent demands against such bank-
rupt, shall be permitted to come in and prove such debts or
claims under this act, and shall have a right whenever debts and
claims become absolute to have the same allowed them," etc.
The court says : ' ' Wells, as surety, was within this section, and
might have proved his demand against the bankrupt. He had
not paid the last note, but he was liable to pay it as surety, and
that gave him a right to prove the claim under the fifth section.
And the fourth section declares that from all such demands the
bankrupt shall be discharged. This is the whole case. It seems
to be clear of doubt." See, also, Crafts v. Mott, 4 N. Y. 604.
We may say as to these sections, and the sections of the present
law quoted above, as is said in the recent case of In re Dillon
(D. C), 100 Fed. 627,— that "the provisions of the two acts,
though quite differently worded, yet reach in most respects the
same results. ' ' Under both cases the surety can get nothing by
way of dividend unless he pays the original debt, in whole or
in part. If he discharges the whole debt, then, under the clause
above quoted of § 19 of the Acts of 1867, and under § 57, par.
"i," of the bankrupt act of 1898, he stands in the place of the
original creditor, or is subrogated to his rights. This is true
whether the payment be made before or after the bankruptcy.
Plainly, the words "if he discharge such undertaking, " in § 57,
par. "i," are not limited to the time before adjudication. In
this Case of Dillon it is said "That if Claffin, the creditor, had
proved the original debt to him at the time of the bankruptcy,
as he might ordinarily have done, MeGuire [the surety], on his
subsequent payment of a part of the Claffin 's debt, would be
subrogated to that extent to Claffin 's rights. It follows, also,
that, since Claffin has not proved the debt, McGuire must, if he
wishes to prove, do so in Claffin 's name. As he has not done
424 ADMINISTRATION
this, bis claim must be disallowed, without any question of set-off,
and the referee's judgment is therefore affirmed." In this case
the creditor had proved the claim, and nothing further was re-
quired of the surety to entitle him to share in the dividends in
case of payment by him. Defendant cites In re Burka (D. C),
104 Fed. 326, which holds that the rights of creditors generally
relate to the date of the filing of the petition, and that a claim
for legal services not then in existence cannot be proved against
the estate, and is not released by discharge. As already said,
this was a fixed liability, evidenced in writing, and absolutely
owing by the defendant at the time of the filing of the petition ;
and these facts render it a provable claim, regardless of whether,
by transfer or otherwise, the person to whom he owed it was
changed or not. Such, we think, is the plain intent of the law,
and the discharge of the defendant operated to defeat the plain-
tiff's action.
It follows from this view of the law and facts that the judg-
ment of the District Court must be reversed.^*^
^^ -''^ ^ ^ ^'^^ DUNBAR v. DUNBAR
a-''
W ^ ' <^ ^-1?^ U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. 757
ijifJ^-^W^^^I^;^ ^United States Supreme Court. June 1, 1903)
Jir^'^j r} The defendant in error, being the plaintiff below, brought her
r^ action in October, 1899, against the plaintiff in error, in the
Municipal Court of Boston, to recover moneys alleged to be due
upon a contract, which was set forth in the complaint. Issue
was joined and the case tried before a single justice, and judg-
ment ordered for the defendant, with costs. An appeal was
taken to the Superior Court of the county of Suffolk, and that
court ordered judgment for the plaintiff for one branch only
of her claim. The case was reported to the Supreme Judicial
Court for the commonwealth, and that court ordered the court
below to enter judgment for the plaintiff for both branches of
her claim (180 Mass. 170, 62 N. E. 248), and the case was re-
manded to the Superior Court for the purpose of entering such
judgment. Pursuant to the directions of the Supreme Court,
10— Smith V. "Wheeler, 66 N. Y. See generally 60 U. of P. Law
Supp. 780, 55 App. Div. 170; Eev. 482.
Sweaney v. Baugher, 166 Ind. 557,
aec '■' ^
'y^\ 4M<|7
CONTINGENT CLAIMS 425
the Superior Court did enter judgment against the defendant
for both branches of her claim, for the sum of $851.60 and costs.
The defendant then obtained a writ of error from this court,
directed to the Superior Court of Massachusetts, where the record
remained.
The case shows these facts: The parties were husband and
wife, who, in 1889, were living apart, the husband in Ohio and
the wife in Massachusetts, In May, 1889, the attorney for her
husband came to Massachusetts and saw Mrs. Dunbar, and told
her that her husband was about to seek a divorce from her. The
wife at this time had no means, and the two sons of the marriage,
then respectively nine and twelve years old, were living with
her. The purpose of the visit of the attorney was to obtain
some assurance from her that she would not contest the case,
and, if she did not, that the husband would make provision for
aiding in the support of herself and her sons until they arrived
of age. The wife denied any intended desertion of her husband,
but the result of the negotiations after the wife had taken
counsel of friends was to give assurance to the attorney that no
defense would be interposed if he made some suitable provision
for herself and her children.
Upon the return of the attorney to Ohio, a suit for divorce was
commenced by the husband, and the summons served by publi-
cation. No appearance was made and there was no opposition
to the decree of divorce, which was obtained in July, 1889. It
adjudged that the marriage contract theretofore existing be-
tween the parties was thereby dissolved, and both parties released
from the obligation of the same, and "that the custody of the
children of such marriage, one boy, Harry H. Dunbar, aged
twelve years, and Willie W. Dunbar, aged nine years, be, and
the same are, to remain in charge and under the control of the
said Lottie E. Dunbar, the said Horace B. Dunbar to have the
privilege of seeing said children at all reasonable times."
The ground of divorce was stated, and the court found ' ' upon
the evidence adduced that the defendant has been guilty of
wilful absence for more than three years last past from plaintiff,
and that, by reason thereof, the plaintiff is entitled to a divorce
as prayed for."
After the divorce the husband sent to a friend of his wife, to
. be delivered to her in performance of his agreement, a written
\ contract, in which he bound himself to pay to Lottie E. Dunbar,
of Ashburnham, Mass., $500 yearly, so long as she remained un-
426 ADMINISTRATION
married, in monthly instalments. In that contract he also
agreed to pay ' ' to our children, Harry H. Dunbar and Willie W.
Dunbar, the sum of $250 each, yearly, until they each attain the
age of fourteen years; after that age they are to be paid by me
such extra allowance as will give them a good and sufficient edu-
cation befitting their station in life, and a suitable maintenance
until each attains the age of twenty-one years." This writing
was signed by the husband and acknowledged before a notary
public of Hamilton, Ohio.
Payments upon this contract were made by the husband, but
in 1896 they had become somewhat in arrears, and disputes arose
as to the validity of the agreement. Thereafter another contract
was entered into and payments were made as called for in that
contract until some months prior to December 2, 1898. On such
last-named date the defendant was adjudged a bankrupt, on
his voluntary petition in bankruptcy, in the United States Dis-
trict Court in bankruptcy, southern district of Ohio, western
division, and on April 24, 1899, was discharged from all debts
and claims provable, under the act of Congress relating to bank-
ruptcy, against his estate, existing on the 2d day of December,
1898.
In the schedule of the defendant it appeared that he named
the plaintiff as a creditor, as follows:
Lottie E. Dunbar, Charlestown, Mass $ 540
Alimony due up to present time.
Lottie E. Dunbar, Charlestown, Mass 1,300
Alimony payable yearly.
The plaintiff, at the first meeting of the creditors in bank-
ruptcy proceedings, which was held before a referee appointed
therein, appeared by an attorney, who produced and filed his
power of attorney, and filed her claim for $691.63, for instalments
on the contract due to December 2, 1898. The husband had paid
nothing on the contract since some time before December 2, 1898,
and finally the wife commenced an action to recover the amounts
due therefrom.
The following is a copy of the contract sued on :
"Controversies having arisen concerning the agreement here-
tofore made between Horace B. Dunbar and Lottie E. Dunbar
in September, 1889, in consideration of said Lottie E. Dunbar's
forbearance of suit on such controversies, and in settlement of
all such controversies, and in substitution of said agreement of
CONTINGENT CLAIMS 427
September, 1889, and in further consideration of the release by-
Lottie E. Dunbar and in satisfaction of all claims under said
original agreement, Horace B. Dunbar agrees with the said Lot-
tie E. Dunbar as follows:
''That said Horace B. Dunbar will pay to Lottie E. Dunbar
during her life, or until she marries, for her maintenance and
support, yearly, the sum of $500, and will pay to her yearly for
the support and maintenance of her child, Harry H. Dunbar,
the sum of $400 until he shall attain the age of twenty-one years ;
and shall pay to her yearly for the support and maintenance of
her child, Willie W. Dunbar, the sum of $400 until he shall attain
the age of twenty-one years, all said sums to be paid in equal
monthly instalments between the 1st and 10th of each and every
month, — the first instalment being for the month of May, 1896,
shall be paid between the 1st and 10th of June, 1896.
"And, in addition to the foregoing, said Horace B. Dunbar
agrees to pay the further sum of $100 between the 1st and 10th
of July, 1896, over and above the instalment otherwise due for
said month.
"And the said Lottie E. Dunbar hereby agrees that she has
not, nor shall she have, any other claim or demand against Horace
B. Dunbar for contribution to her support and maintenance, or
for the support, maintenance, or education of said children, save
and except as fixed and limited by this agreement."
Properly signed by both parties and witnessed.
The particulars of her claim were stated as follows:
Horace B. Dunbar to Lottie E. Dunbar, Dr.
1. To instalments due under covenant for alimony from
December, 1898, to October 1, 1899, ten months, at
$41.66 a month $416.60
2. To monthly allowance due her for support and main-
tenance of Willie W. Dunbar, from December,
1898, to October 1, 1899, ten months, at $33.33 a
month 333.30
$749.90
The defendant pleaded his discharge in bankruptcy as a bar,
and the Supreme Judicial Court of the state held that it was
not good.
428 ADMINISTRATION
Mr. Justice PECKHAM, after making the foregoing statement
of facts, delivered the opinion of the court:
Had the provisions of this contract, so far as contracting to
pay money for the support of his wife is concerned, been em-
bodied in the decree of divorce which the husband obtained from
his wife in Ohio on the ground of desertion, the liability of the
husband to pay the amount as alimony, notwithstanding his
discharge in bankruptcy, cannot be doubted. Audubon v. Shu-
/ feldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735. We
are not by any means clear that the same principle ought not
to govern a contract of this nature when, although the judgment
of divorce is silent upon the subject, it is plain that the con-
tract was made with reference to the obligations of the husband
to aid in the support of his wife, notwithstanding the decree.
The facts appearing in this record do not show a case of any
moral delinquency on the part of the wife, and the contract,
considering the circumstances, might possibly be held to take
the place of an order or judgment of the court for the payment
of the amount, as in the nature of a decree for alimony. We do
not find it necessary, however, to decide that question in this
case, because, in any event, we think the contract as to the
support of the wife is not of such a nature as to be discharged
by a discharge in bankruptcy.
Conceding that the bankruptcy act provides for discharging
some classes of contingent demands or claims, this is not, in our
opinion, such a demand. Even though it may be that an annuity
dependent upon life is a contingent demand within the mean-
ing of the bankruptcy act of 1898 (30 Stat, at L. 544, c. 541, U. S.
Comp. Stat. 1901, p. 3418), yet this contract, so far as regards
the support of the wife, is not dependent upon life alone, but is
to cease in case the wife remarries. Such a contingency is not
one which, in our opinion, is witliin the purview of the act, be-
cause of the innate difficulty, if not impossibility, of estimating
or valuing the particular contingency of widowhood. A simple
annuity which is to terminate upon the death of a particular per-
son may be valued by reference to the mortality tables. Mr.
Justice Bradley, in Riggin v. IMagwire, 15 Wall. 549, 21 L. ed.
232, speaking for the court, said that so long as it remained un-
certain whether a contract or engagement would ever give rise
to an actual duty or liability, and there was no means of remov-
ing the uncertainty by calculation, such contract or engagement
was not provable under the bankruptcy act of 1841 [5 Stat, at
CONTINGENT CLAIMS 429
L, 445, c. 9]. The 5th section of that axit gave the right to prove
"uncertain and contingent demands," but it was held that a
contract such as above described was not within that section.
It was remarked by the justice in that case that, if the con-
tract had come within the category of annuities and debts pay-
able in future, which are absolute and existing claims, that the
value of the wife 's probability of survivorship after death of her
husband might have been calculated on the principle of life
annuities.
h But how can any calculation be made in regard to the continu-
j anee of widowhood when there are no tables and no statistics by
^ which to calculate such contingency? How can a valuation of
a probable continuance of widowhood be made? Who can say
what the probability of remarrying is in regard to any particu- 1
lar widow ? We know what some of the factors might be in the '
question: inclination, age, health, property, attractiveness, chil-
dren. These would, at least, enter into the question as to the
probability of continuance of widowhood, and yet there are no
statistics which can be gathered which would tend in the slightest
degree to aid in the solving of the question.
In many cases where actions are brought for the violation of
contracts, such as Pierce v. Tennessee Coal, I. & R. Co., 173 U. S.
1, 43 L. ed. 591, 19 Sup. Ct. Rep. 335 ; Roehm v. Horst, 178 U. S.
1, 44 L. ed. 953, 20 Sup. Ct. Rep. 780, and Schell v. Plumb, 55
N. Y, 592, it is necessary to come to some conclusion in regard
to the damages which the party has sustained by reason of the
breach of the contract, and in such cases resort may be had to
the tables of mortality, and to other means of ascertaining as
nearly as possible what the present damages are for a failure to
perform in the future ; but we think the rules in those cases are
—not applicable to cases like this, under the bankruptcy act.
Taking the liability as presented by the contract, if the mor-
tality tables were referred to for the purpose of ascertaining the
value so far as it depended upon life, the answer would be no
answer to the other contingency of the continuance of widow-
hood; and if, having found the value as depending upon the
mortality tables, you desire to deduct from that the valuation of
the other contingency, it is pure guesswork to do it.
It is true that this has been done in England under the Eng-
lish bankruptcy act of 1869 [32 & 33 Vict. c. 71, § 31]. In Ex
parte Blakemore (1877) L. R. 5 Ch. Div. 372, it was held by the
Court of Appeal that the value of the contingency of a widow's
430 ADMINISTRATION
luarrying again was capable of being fairly estimated, and that
proof must be admitted for the value of the future payments as
ascertained by an actuary. That decision was made under the
31st section of the bankruptcy act of 1869. James, Lord Justice,
said:
"No doubt it is uncertain whether the appellant will marry
again, just as the duration of any particular life is uncertain.
But, though the duration of any particular life is uncertain,
the expectation of life at a given age is reduced to a certainty
when we have regard to a million of lives. The value of the
expectation of life is arrived at by an average deduced from
practical experience."
Although the English statute makes it necessary to arrive at
a conclusion upon this point, yet there is no "practical expe-
rience" as to the chances of the continuance of widowhood, such
as may be referred to where the probable continuance of life is
involved. In the latter ease we liave the experience tables in
regard to millions of lives, and, under such circumstances, there
is, as Lord Justice James said, almost a certainty as to the valua-
tion to be put on such a contingency. But under the English
statute, the 31st section makes every kind of debt or liability
provable in bankruptcy except demands in the nature of unliqui-
dated damages arising otherwise than by reason of a contract or
promise, so long as the value of the liability is ' ' capable of being
ascertained by fixed rules, or assessable only by a jury, or as
matter of opinion. ' ' So, under that act, in Ex parte Neal, L. R.
14 Ch. Div. 579, there was a separation deed between husband
and wife, and the husband was to pay an annuity to the wife,
which was terminable ' ' in case the wife should not lead a chaste
life; in case the husband and wife should resume cohabitation;
and in case the marriage should be dissolved in respect of any-
thing done, committed, or suffered by" the other party, after
the date of the deed. The annuity was also to be proportionately
diminished in the event of the wife's becoming entitled to any
income independent of the husband, exceeding a certain amount
a year. After the execution of the deed the husband went
through bankruptcy, and it was held that the value of the annu-
ity was capable of being fairly estimated and was provable in
the liquidation. In that case, speaking of the 31st section of the
act of 1869, it was stated that "words more large and general
it is impossible to conceive; they cover every species of contin-
gency. ' ' It was also stated that it was ' ' difficult to see how any
CONTINGENT CLAIMS 431
case could arise which would not come \\athin" the language of
this act. Bramwell, Lord Justice, said: "But for the present
bankruptcy act, our decision must have been the same as that in
Mudge V. Rowan" (1868) L. R. 3 Exch. 85 ; but he said that the
present bankruptcy act was very different in its terms from the
act which was in force when that case was decided.
In the case of Mudge v. Rowan, L. R. 3 Exch. 85, there was
a deed of separation between husband and wife, in which the
husband convenanted to pay an annuity to his wife by quarterly
instalments, the annuity to cease in the event of future cohabi-
tation by mutual consent. It was held that this was not an an-
nuity provable under the bankruptcy act of 1849, 12th and 13th
Vict. c. 106, § 175 ; nor a liability to pay money under the 24th
and 25th Vict. c. 134, § 154.
The 175th section of the act of 1849 expressly provided that
the creditor might prove for the value of any annuity, which
value the court was to ascertain. Kelly, Chief Baron, said:
' ' The annuity seems to me to be so uncertain in its nature as
to be impossible to be valued. In many cases the commissioner
of bankruptcy may have to deal with contingencies the value
of which depends on a variety of considerations, and where the
valuation is very difficult. But here I am at a loss to see any
single circumstance upon which a calculation of any kind could
be based."
Martin, Baron, said:
"This contingency depends on an infinite variety of circum-
stances, into which it is idle to suppose a commissioner could
inquire. ' '
Channell, Baron, concurring, said:
"The tendency of recent legislation, and the course of recent
decisions, has been to free a debtor who becomes a bankrupt,
from all liability of every kind ; but I do not think an order of
discharge a bar to such a claim as the present. * * * i quite
admit that, to bring an annuity within the act of 1849, it is not
necessary to have any actual pecuniary consideration. I also
feel that in many eases the difficulty of calculating the present
value of contingencies may be very great, and yet they may be
within the acts. But here it appears to me that the difficulty is
insuperable."
In Parker v, Ince (1859) 4 Hurlst. & N. 52, there was a bond
conditioned to pay an annuity during the life of the obligor's
wife, provided that if the obligor and his wife should at any
432 ADMINISTRATION
time thereafter cohabit as man and wife the annuity should
cease, and it was held that the annual sum thus covenanted to
be paid by the defendant was not an annuity within the 175th
section of the bankruptcy law or consolidation act of 1849, nor
a debt payable upon a contingency within the 177th section, nor
a liability to pay money upon a contingency within the 178th
section, and consequently the discharge in bankruptcy was no
bar to an action for a recovery of a quarterly payment due on
the bond. Martin, Baron, said:
"That cannot be such an annuity as would fall within the
175th section, because a value cannot be put upon it. How is
it possible to calculate the probability of a man and his wife,
who are separated, living together again? Their doing so de-
pends on their character, temper, and disposition, and, it may
be",~a variety of other circumstances. Then, is it money payable
upon a contingency within the 178th section ? I think it is not. ' '
It is only, therefore, by reason of the extraordinarily broad
language contained in the 31st section of the English bankruptcy
act of 1869 that the English courts have endeavored to make a
fair estimate of the value of a contract based on the continuance
of widowhood, even though the value was not capable of being
ascertained by fixed rules, nor assessable by a jury, but was
simply to be estimated by the opinion of the court or of some
one intrusted with the duty.
In the Blakemore Case, L. R. 5 Ch. Div. 372, after the an-
nouncement of the judgment, the report states that it was then
arranged that it should be referred to an actuary to ascertain
the annuity as a simple life annuity, and to deduct from that
value such a sum as he should estimate to be the proper deduc-
tion for the contingency of widowhood. In other words, it was
left to the actuary to guess the proper amount to be deducted. ^^
No such broad language is found in our bankruptcy act of
1898. § 63a provides for debts which may be proved, which,
among others, are: (1) "A fijced liability, as evidenced by a
judgment or an instrument in writing, absolutely owing at the
time of the filing of the petition against him, whether then pay-
able or not, with any interest thereon which would have been
recoverable at that date, or with a rebate of interest upon such
11 — In Victor v. Victor [1912], provision in the agreement that the
1 K. B. 247, it was held that an an- annuity should cease upon the par-
nuity provided for in a separation ties resuming cohabitation. See 10
agreement was provable despite a Mich. L. Eev. 476.
CONTINGENT CLAIMS 433
as were not then payable and did not bear interest." (4)
"Founded upon an open account or upon a contract, express or
implied. ' '
In § 636, provision is made for unliquidated claims against
the bankrupt, which may be liquidated upon application to the
court in such manner as it shall direct, and may thereafter be
proved and allowed against his estate. This paragraph &, how-
ever, adds nothing to the class of debts which might be proved
under paragraph a of the same section. Its purpose is to permit
an unliquidated claim, coming within the provisions of § 63a, to
be liquidated as the court should direct.
We do not think that by the use of the language in § 63a it
was intended to permit proof of contingent debts or liabilities
or demands the valuation or estimation of which it was substan-
tially impossible to prove.
The ian^age o± § b3a of the act of 1898 differs from that con-
tained in the bankruptcy act of 1867, and also from that of 1841.
The act of 1867, § 19 (14 Stat, at L. 517, 525, c. 176, carried into
the Revised Statutes as § 5068 ) , provided expressly for cases of
contingent debts and contingent liabilities contracted by the
bankrupt, and permitted applications to be made to the court to
have the present value of the debt or liability ascertained and
liquidated, which was to be done in such manner as the court
should order; and the creditor was then to be allowed to prove
for the amount so ascertained.
§ 5 of the act of 1841 (5 Stat, at L. 440, c. 9) provides in terms
for the holders of uncertain or contingent demands coming in
and proving such debts under the act. But neither the act of
1841 nor that of 1867 would probably cover the case of such a
contract as the one under consideration.
Cases have been cited showing some contingent debts which
were held capable of being proved under the bankruptcy act of
1898, among which are Moch v. Market Street Nat. Bank, 47 C.
C. A. 49, 107 Fed. 897, Circuit Court Appeals, Third Circuit,
1901, and Cobb v. Overman, 54 L. R. A. 369, 48 C. C. A. 223, 109
Fed. 65. Circuit Court of Appeals, Fourth Circuit, 1901. And
under former bankrupt acts, the cases of Fisher v. Tifft (1878),
12 R. I. 56; Hey wood v. Shreve (1882), 44 N. J. L. 94, and
Shelton v. Pease (1847), 10 Mo. 473.
The contingency in the case of Moch v. Market Street Nat.
Bank, 47 C. C. A. 49, 107 Fed. 897, wb& that the bankrupt was
the indorser of commercial paper not due at the time of filing the
H. & A. Bankruptcy— 28
aH^'
434 ADMINISTRATION
petition, and it was held that under § 63a, subdivision 4, the
creditor might prove against the estate of the bankrupt after the
liability had become fixed.
In Cobb V. Overman, 54 L. R. A. 369, 48 C. C. A. 223, 109 Fed.
65, the bond of the bankrupt to secure payment to the obligee of
an annuity for life was held to be properly proved under § 63a.
clause 1.
These cases, it will be seen, do not come within the principle
of the case at bar. The other cases arising under the acts of 1867
and 1841 do not affect this case.
The Massachusetts court held the debt herein not provable,
upon the authority of Morgan v. Wordell, 178 Mass. 350, 55 L.
R. A. 33, 59 N. E. 1037, and Goding v. Roscenthal, 180 Mass.
43, 61 N. E. 222. Mr. Justice Barker, in delivering the opinion
of the Supreme Judicial Court of Massachusetts in the latter
case, said:
"But in Morgan v. Wordell, 178 Mass. 350, 55 L. R. A. 33, 59
N. E. 1037, this court assumed that such claims were not prov-
able under the act, and we follow that view in the present case. ' '
We think the contract, so far as it related to the payment to
the wife during her life or widowhood, was not a contingent
liability provable under the act of 1898.
* * *
The judgment is affirmed.*^
jy In re ROTH & APPEL
^^^ 181 Fed. 667, 104 C. C. A. 649
(Circuit Court of Appeals, Second Circuit. August 2, 1910)
On August 14, 1907, Adolph Boskowitz, the appellant, entered
into an indenture of lease with the firm of Roth & Appel, the
present bankrupts, wherein he let to them certain premises in
the city of New York for the term of five years from February
1, 1908, at the annual rental of $3,000, payable quarterly in
advance. The lease contained the following provision :
*'In case the lessee is declared bankrupt, the lease shall ter-
minate and the lessor has a right to re-enter, in which case the
12 — The part of the opinion in port of the children was not prov-
which the court concluded that the able, is omitted. See Wetmore v.
claim based upon the husband's Markoe, ante, p. 384.
contract to pay money for the sup-
CONTINGENT CLAIMS 435
lessee agrees, as a part consideration hereof, that it, and its legal
representatives, will pay to the lessor and his legal representa-
tives on the first day of each month, as upon rent days, the dif-
ference between the rents and sums reserved and agreed to be
paid by the lessee and those otherwise reserved or with due dili-
gence collectible, on account of rents of the demised premises for
the preceding month, up to the end of the term remaining at
the time of the entry. Such re-entry shall not prejudice the
right of the lessor to recover for rent accrued or due at the time
of such re-entry, ' '
On January 20, 1908, a petition in involuntary bankruptcy
was filed against said Roth & Appel, and on May 27, 1908, they
were adjudicated bankrupts. On April 29, 1908, prior to the
adjudication, the appellant relet the premises for the remainder
of the term to another tenant, who entered into possession on
July 1, 1908. The rental under the new lease was at the rate
of $175 per month from July 1, 1908, to February 1, 1909, and
at the rate of $250 per month thereafter. On July 14, 1908, the
appellant filed his claim made up in substance of the following
items.
(1) Full rent from February, 1908, to July, 1908 $1,250
(2) Difference between rent reserved and rent stipulated
in new lease from July, 1908, to February, 1909 . . . 525
$1,775
The trustee moved to expunge the claim upon the ground that
it was not provable in bankruptcy. The referee expunged from
the claim so much as embraced the difference in rents arising sub-
sequent to the time of filing the claim, and allowed the balance.
The trustee and the appellant both filed petitions to review the
referee 's order and the District Court expunged the entire claim.
The opinion of the district judge is printed in 174 Fed. 64.
Adolph Boskowitz appeals from the order expunging his claim.
NOYES, Circuit Judge (after stating the facts as above).
Rent is a sum stipulated to be paid for the use and enjoyment of
land. The occupation of the land is the consideration for the rent,
[f the right to occupy terminate, the obligation to pay ceases.
Consequently, a covenant to pay rent creates no debt until the
timestipulated for the payment arrives. The lessee may be
evicted by title paramount or by acts of the lessor. The destruc-
436 ADMINISTRATION
tiou or disrepair of the premises may, according to certain statu-
tory provisions, justify the lessee in abandoning them. The lessee
may quit the premises with the lessor's consent. The lessee may
assign his term with the approval of the lessor, so as to relieve
himself from further obligation upon the lease. In all these
cases the lessee is discharged from his covenant to pay rent. The
time for payment never arrives. The rent never becomes due.
It is not a case of dehitum in prcesenti solvendum in futuro.
On the contrary, the obligation upon the rent covenant is alto-
gether contingent." Watson v. Merrill, 136 Fed. 362, 69 C. C. A.
185, 69 L. R. A. 719. See, also, Coke on Littleton, 292&; Wood
V. Partridge, 11 Mass. 492 ; Bordman v. Osborn, 23 Pick. (Mass.)
299.
It follows from these principles that rent accruing after the
filing of a petition in bankruptcy againgt the lessee is not provable
against his bankrupt estate as ' ' a fixed liability * * * abso-
lutSy"owing at the time of the filing of the petition, ' ' within the
meaning of § 63a. (1) of the bankruptcy act of 1898. It is not
a fixed liability, but is contingent in its nature. It is not abso-
lutely owing at the time of the bankruptcy, but is a mere
possible future demand. Both its existence and amount are
contingent upon uncertain events. Watson v. Merrill, supra;
Atkins V. Wilcox, 105 Fed. 595, 44 C. C. A. 626, 53 L. R. A.
118. Also In re Rubel (D. C.) 166 Fed. 131; In re Mahler (D.
C.) 105 Fed. 428; In re Hayes, etc., Co. (D. C.) 117 Fed. 879;
In re Amstein (D. C.) 101 Fed. 706; In re Jefferson (D. C.)
93 Fed. 948; In re Inman & Co. (D. C.) 171 Fed. 185.
Even under the bankruptcy acts of 1841 (Act Aug. 19, 1841,
c. 9, 5 Stat. 440) and 1867 (Act March 2, 1867, c. 176, 14 Stat.
517), which, unlike the present act, expressly permitted the
proof of contingent demands, claims for unaccrued rent were not
provable. Ex parte Houghton, 1 Low. 554, Fed. Cas. No. 6,725,
In re May, 9 N. B. R. 419, Fed. Cas. No. 9,325, and Bailey v.
Loeb, 11 N. B. R. 271, Fed. Cas. No. 739, were cases under the
act of 1867. Bosler v. Kuhn, 8 Watts & S. (Pa.) 183, was under
t|ie act of 1841.
\ ^> ,.1^'The authorities are not entirely in accord upon the question
- whether a lease, containing the usual provisions, is terminated
by bankruptcy. In some cases it has been held that bank-
ruptcy destroys the relation of landlord and tenant and prac-
tically annuls the lease. In re Jefferson, supra; In re Hayes, etc.,
Co., supra. See, also. Bray v. Cobb (D. C.) 100 Fed. 270, re-
(^'
/i.i-
CONTINGENT CLAIMS 437
versed in Cobb v. Overman, 109 Fed. 65, 48 C. C. A. 223, 54
L. R. A. 369. In other cases it is held that bankruptcy does
not sever such relation, that the tenant remains liable, and that
the obligation to pay rent is not discharged as to the future,
unless the trustee elect to retain the lease as an asset. Watson
V. Merrill, supra; In re Hinckel Brewing Co. (D. C.) 123 Fed.
942. See, also. In re Ells (D. C.) 98 Fed. 968.
In our opinion the latter view is the correct one. We think
the early law, as stated in J^x~plirL« Ilaughton, supra, is the
law under the present bankruptcy statute, applicable in the case
of leases having the usual covenants and conditions. In that
case the court said:
"The earlier law of England, which we have adopted in
this country, was that the assignees of a bankrupt have a rea-
sonable time to elect whether they will assume a lease which
they find in his possession ; and, if they do not take it, the bank-
rupt retains the term on precisely the same footing as before,
with the right to occupy, and the obligation to pay rent. If they
do take it, he is released, as in all other cases of valid assign-
ment, from all liability, excepting on his covenants; and from
these he is not discharged in any event."
This reasoning leads by another course to the same conclu-
sion already reached. If the lessee remain liable upon the lease
after his bankruptcy in cases where it is not assumed by the
trustee, it necessarily follows that his estate is not liable thereon.
With a few exceptions, not applicable here, that which is not
dischargeable in bankruptcy is not provable in bankruptcy.
The claim in this case was regarded in the report of the
referee as a demand for installments of rent falling due accord-
ing to the terms of the lease subsequent to the time of filing the
petition in bankruptcy, and the question considered in such
report was whether demands of that character are provable in
bankruptcy. So the claim was assumed to be of that character
by the district judge, and was ordered expunged upon that
assumption. Regarding, then, the claim as one for unaccrued
rent, it is clear, upon the principles already examined, that
it was not provable against the bankrupt estate under the first
clause of § 63a of the bankruptcy act.
But, while there may be a question whether the demand as
covering the period prior to the re-entry by the lessor might not
be considered a claim for rent as such, it is clear that the demand
for the difference between the rent reserved and the rent stipu-
438 ADMINISTRATION
lated in the new lease is not such a demand, but is based upon
the indemnity provision in the lease shown in the foregoing
statement of facts.
The lease in the present case is not a lease containing the usual
covenants and conditions. It contains unusual provisions. As
we have seen, it expressly provides that in case the lessee is de-
clared bankrupt the lease shall terminate and the lessor shall
have the right to re-enter. Under such a lease as this the
trustee could not adopt the lease against the lessor's objection.
The lessor had the right to terminate it, and did t^erminate it, by
re-entry. And when he terminated it the obligation of the bank-
rupts as lessees terminated. The question in this case — at least
with respect to a large part of the claim — is not, in its essence,
whether rent to accrue in the future is provable against a bank-
rupt estate, but whether a claim founded upon an agreement to
indemnify a landlord for loss of rents following bankruptcy is
provable.
Undoubtedly the parties to a lease may agree that bankruptcy
shall terminate it, and that, upon such termination, aU future
installments of rent shall at once become due and payable. In
such a case, the installments may be regarded as consolidated
by the contract, or, perhaps, as falling due by way of penalty.
Not improbably claims based upon such leases are provable in
bankruptcy. Thus in the case of In re Pittsburg Drug Co. (D.
C.) 164 Fed. 482, where a lease provided that, on default in the
payment of any rent, the rent for the entire term should at once
become due and payable, it was held that, on the bankruptcy of
the lessee while in default, the entire rent was "a fixed liability
absolutely owing," and provable against the bankrupt estate.
But the convenant of indemnity in the present lease was of a
very different nature. It called for tbe payment of no fixed and
certain sum. Its purpose was merely to guarantee against pos-
sible loss.
The inquiry, then, is as to the status of the lessor's demand
upon this indemnity covenant at the time when the petition in
bankruptcy was filed ; for it is held that that is the time when
the provability of claims against the estate of a bankrupt is fixed.
Thus in the case of In re Pettingill (D. C.) 137 Fed. 145, it was
said:
"Under that act the provability of a claim depends upon its
status at the time the petition is filed. If, at that time, the
claim is provable, within the definition of § 63, it may be proved.
CONTINGENT CLAIMS 439
If, at that time, it does not fall within that definition, but does
so at some later time, it cannot be proved."
See, also, Swarts v. Fourth National Bank, 117 Fed. 5, 54
C. C. A. 387; In re Bingham (D. C.) 94 Fed. 796; Watson v.
Merrill, supra; In re Adams (D. C.) 130 Fed. 381; In re Swift,
112 Fed. 320, 50 C. C. A. 264.
Now, when the petition was filed, the first step toward declar-
ing the lessee bankrupt was taken. It was not certain that bank-
ruptcy would follow ; but, if it did follow, the lessor would have
the right to re-enter and terminate the lease. Notwithstanding
the provision that the lease should terminate in case the lessees
should be declared bankrupt, and the lessor should have the right
to re-enter, the lease was undoubtedly terminable by the re-entry,
and not by the bankruptcy. In re Ells (D. C.) 98 Fed. 967.
But the lessor was not obliged to re-enter, and whether he would
do so or not was manifestly dependent upon uncertainties. In-
deed, looking at the claim as it existed either at the time of the
petition or the adjudication, it was altogether contingent in its
nature :
(1) It was uncertain, as just pointed out, whether the lessor
would re-enter and terminate the lease.
(2) In case the lease was terminated, it was uncertain whether
there would be any loss in rents. If the rent received by the
landlord from the new tenant equaled or exceeded that stipu-
lated in the lease, there would be no loss, and, consequently, no
foundation for any claim upon the indemnity covenant.
The case of In re Ells (D. C.) 98 Fed. 967, already referred
to, is in point. In that case the lease contained a provision that
the landlord might re-enter and resume possession if the bank-
rupt should be "declared bankrupt or insolvent according to
law," and the lessee covenanted that in case of such termination
of the lease he would ' ' indemnify the lessor against all loss of rent
or other payments which he may incur by reason of such termi-
nation during the remainder of the term, ' ' and the landlord re-
entered upon the bankruptcy of the tenant. It was held that
the claim of the landlord for the difference between the present
letting value of the premises and the rent reserved for the re-
mainder of the term could not be proved against the bankrupt
estate of the lessee. Judge Lowell said (p. 968) :
"The contract was one of indemnity for loss of rent and other
payments, and would be broken only after, and so far as, rent
had been lost and payments had been made. * * * At the
440 ADMINISTRATION
time of the adjudication the claim in this case was contingent,
first, upon the determination of the lease by the lessor for breach
of the covenant ; and, second, upon a subsequent loss of rent by
the lessor. If the lessor permitted the lease to continue, or if the
rent subsequently obtained by him equalled or exceeded that
provided in the lease, the claim would not arise. * * * The
provisions of the act of 1898 concerning the proof and allow-
ance of contingent claims differ materially from those contained
in the acts (k 1841 and 1867. * * * Even under the broad
provisions of the act of 1867 above referred to, it was held
that a provision in a lease that the lessors might re-enter and
relet the premises at the risk of the lessees, who should remain
liable for the rent, and be credited with the sums actually re-
alized, did not give rise to a provable contingent claim. Ex parte
Lake, 2 Low, 544, Fed, Cas. No. 7,991. The provision above
quoted of the lease here in question, though not identical with
that in Ex parte Lake, yet resembles it so closely as to be essen-
tially similar. If the contingent claim arising in Ex parte Lake
could not be proved under the act of 1867, it is clear that the
contingent claim arising in this case cannot be proved under
the act of 1898,"
See, also. In re Shaffer (D. C.) 124 Fed. 111.
For these reasons, we are satisfied that the claim in question
as based upon the indemnity covenant is contingent, and not
provable against the bankrupt estate under the first clause of
§ 63a of the bankruptcy act.
But this does not dispose of all of the appellant's conten-
tions. It is urged, in effect, that the claim, whether regarded
as a demand for rent or as based upon the indemnity provision,
is "a debt founded upon an express contract," and provable
under the fourth clause of § 63a, irrespective of the question
whether it is of such character as to be provable under the first
clause.
The principal cases cited in support of this contention are
In re Smith (D, C.) 146 Fed. 923, and Moch v. Market St. Nat.
Bank, 107 Fed. 897, 47 C, C. A. 49, which hold that the liability
of a bankrupt indorser of commercial paper, which does not
become absolute until after the filing of the petition, is a debt
founded upon contract within § 63a (4), and provable against
the bankrupt estate after it becomes fixed within the time allowed
for proving claims.
It is not necessary for the purposes of the present case that
CONTINGENT CLAIMS 441
we should go so far as to dispute the conelusions reached in these
decisions. While a contract of indorsement is contingent, the
extent of the liability is at all times ascertainable, and it might
be that such a contract would be provable without it following
that an indemnity contract covering possible loss of rents — both
the existence and extent of the liability upon which are uncertain
and contingent — would be provable.
The present bankruptcy statute, unlike — as we have seen —
the acts of 1841 and 1867, does not provide for the proof of con-
tingent claims. Taking the fourth subdivision of § 63a as being
independent of the first subdivision, still there is nothing to indi-
cate that it was intended to embrace wholly contingent demands.
Indeed, it is only by reading § 636 — which permits the liquida-
tion of unliquidated demands — in connection with said fourth
clause of 63a, that any ground is shown for contending that a
claim like the one in question can be proved. But this con-
struction expands the provisions of § 63a by those of 63&, and
it is well settled that such a construction cannot be adopted.
§ 636 adds nothing to the class of debts provided under 63a. It
merely permits the liquidation of an unliquidated claim prov-
able under the latter provision. In Dunbar v. Dunbar, 190 IT. S.
340, 23 Sup. Ct. 757, 47 L. ed. 1084, the Supreme Court of the
United States said :
*'§ 63a provides for debts which may be proved, which, among
others, are : ( 1 ) ' A fixed liability, as evidenced by a judgment
or an instrument in writing, absolutely owing at the time of the
filing of the petition against him, whether then payable or not,
with any interest thereon which would have been recoverable at
that date or with a rebate of interest on such as were not then
payable and did not bear interest;' (4) 'founded upon an open
account, or upon a contract express or implied.' In § 636 pro-
vision is made for unliquidated claims against the bankrupt,
which may be liquidated upon application to the court in such
manner as it shall direct, and may thereafter be proved and
allowed against his estate. This paragraph 'b,' however, adds
nothing to the class of debts which might be proved under
paragraph 'a' of the same section. Its purpose is to permit an
unliquidated claim, coming within the provisions of § 63a, to be
liquidated as the court should direct. We do not think that by
the use of the language in § 63a it was intended to permit proof
of contingent debts or liabilities or demands the valuation or
estimation of which it was substantially impossible to prove."
p.^^l
442 ADMINISTRATION
In Dunbar v. Dunbar, supra, the case of Moch v. Market St.
Nat. Bank, supra, was distinguished.
But, while it is not necessary, in order to reach a decision in
this case, to determine whether 63a (4) is subject to the limita-
tion contained in 63a (1) — ^that debts to be provable must be
absolutely owing at the time of filing the petition — we think it
the better view that it is so limited. If it is not so limited, the
limitations in the first subdivision are practically of no effect.
All claims upon instruments in writing not provable under the
first clause, because not absolutely owing at the time of the
petition, might be proved as claims founded upon a "contract
express or implied" under the fourth clause, if no limitations
are attached to the latter. We cannot regard this interpreta-
tion as tenable. We think that the different clauses of 63a
should not be considered as independent, but should be read
together, and that the said limitation in the first clause should
be considered as repeated in the fourth clause. This interpre-
tation of the section is supported by authority. Thus In re
Swift, 112 Fed. 316, 50 C. C. A. 270, already referred to, the
Circuit Court of Appeals for the First Circuit said :
"That part of the present bankruptcy act which describes
what debts may be proved does not repeat at all points the words
'owing at the time of the filing of the petition,' but it is im-
possible to consider it other than as though it did thus repeat
them."
And In re Adams (D. C), 130 Fed. 381, the court said:
"But a creditor cannot prove for an indebtedness arising
between the filing of the involuntary petition and adjudication.
This appears from the analogy of § 63a (1), (2), (3), and (5),
as applied to the interpretation of clause (4). In clauses (1)
and (4), for example, the limit of time must be the same, inas-
much as clause (4) includes clause (1), and, if clause (4) were
less limited in point of time, the limit imposed upon clause (1)
would become nugatory. ' '
For these reasons, we think that the claim of the appellant,
whether regarded as one for unaccrued rent or for indemnity
for lo^_of rent, was not provable against the bankrupt estate
un3er either | 63a (1) or 63a (4), and was properly expunged
I by the District Court.
The order of the District Court is affirmed, with costs.^*
13 — See Colman Co, v. Withoft,
195 Fed, 250,
"''?''^
CONTINGENT CLAIMS 443
BRITISH & AMERICAN MORTGAGE CO. v. STUART
210 Fed. 425, 127 C. C. A. 157
(Circuit Court of Appeals, Fifth Circuit. January 6, 1914)
SHELBY, Circuit Judge. The petitioner had a mortgage on
the bankrupt's real estate, which contains the following stipu-
lations as to attorney's fees:
"That the parties of the first part hereby agree to pay the
attorney's fees, and all other expenses which may be incurred
by the said mortgagee, its successors or assigns, in th« collection
of, or in attempting to collect the several sums, herein secured,
by a foreclosure of the mortgage, or otherwise, or for enforcing
or attempting to enforce any of the terms or provisions hereof,
with or without suit, for the payment of which this conveyance
is a lien, including solicitor's fees for a foreclosure by suit in
equity, and this mortgage shall stand as security for the same,
and it shall be no defense as to such solicitor's fees, or other
costs, fees, or expenses for a foreclosure in equity, that a fore-
closure might have been made under any power herein, the
course of procedure being optional with the holder, and it being
the purpose and intent hereof to secure such holder in the col-
lecting of principal and interest — thereby secured — net of every-
thing."
The controversy here is as to a claim for attorney 's fees based
on the foregoing agreement.
After the adjudication in bankruptcy, George Stuart, the
trustee of the bankrupt, filed a petition in the District Court to
sell the land described in the mortgage, free of liens, and the
mortgagee, petitioner here, was made a party to the proceeding.
It filed an answer, and also filed proof of the mortgage debt and
proof of the attorney's fees for services rendered in and con-
nected with said proceedings "according to stipulations in the
mortgage;" but the services were all rendered after the filing
of the petition in bankruptcy. No question is made as to the
rendition of the services, nor of the fact that they were fairly
worth $250, the amount claimed. The referee allowed the mort-
gage debt as proved, but disallowed the claim for attorney's
fees, and the District Court confirmed the referee 's order. The
petitioner seeks to revise and reverse the order disallowing the
attorney's fees.
For a clear understanding of the question to be considered
444 ADMINISTRATION
later, it is first necessary to ascertain the effect and proper con-
struction of stipulations in notes and mortgages to pay attorney's
fees for their enforcement and collection. Such stipulations are
generally held to be valid, and they are sustained in Alabama,
where the mortgaged land is situated. Munter & Faber v, Linn,
61 Ala. 492. The agreement here is for no fixed sum ; but such
an agreement, if made for a definite sum, would not be conclusive
as to the amount on the parties. It could only be enforced for
such an amount as was reasonable. Unless the services, or some
of the services, covered by the stipulation, are performed, there
can be no collection or enforcement of such contract. It follows
that the obligation to reimburse the mortgagee or payee for costs
of enforcement or collection is contingent, creating no liability
unless the services provided for are performed or partly per-
formed. If the debt is paid promptly at maturity, no services
of an attorney being required or rendered, no attorney's fees
can be added to the amount of the note or mortgage. The cred-
itor would not be permitted to make a profit by collecting fees
he did not have to pay. Until the claim becomes due and the
services of the attorney are rendered, no debt exists, on account
of such stipulation, to be added to the amount of the note or
mortgage. Springstead et al. v. Crawfordsville State Bank, 34
Sup. Ct. 195, 231 U. S. 541, 58 L. ed. — (decided December 22,
1913) ; Williams v. Flowers, 90 Ala. 136, 137, 7 South. 439, 24
Am. St. Rep. 772 ; McCabe v. Patton, 174 Fed. 217, 98 C. C. A.
225.
The stipulation which we have copied from the mortgage names
no sum which was to be paid as attorney 's fees. It fixes no time
of payment. The payment is to be made for attorney's fees
' ' incurred by the said mortgagee * * * jn the collection of,
or in attempting to collect, the several sums, ' ' etc. It is obvious
that it was not in the contemplation of the parties that an at-
torney would be employed to collect or attempt to collect the
mortgage debt before it was due. When the mortgage became
due, without the aid of attorneys and without expense, so far
as it appears, the debt was extended for four years — a period
not yet expired. So it cannot be that any debt on such account
was due and "absolutely owing" at the date of bankruptcy,
according to the terms of the contract.
The petition in bankruptcy was filed against Vandiver by his
creditors on September 19, 1912, and he was adjudicated a bank-
rupt on October 10, 1912. Up to that time nothing had occurred
CONTINGENT CLAIMS 445
which would authorize the addition of any sum to the amount
of the mortgage on account of attorney's fees; the mortgagee
had not been required, nor had anything happened to authorize
him, to employ and compensate an attorney and add the fees to
the amount of the mortgage.
So we have the important if not the controlling facts shown
by the record that, at the date of the filing of the petition in
bankruptcy, no debt for attorney's fees existed; and, the mort-
gage not being due, the time had not arrived when such debt
could have been created.
The bankruptcy act designates the debts which may be proved
against a bankrupt's estate. The claim presented here is one
"evidenced * * * by an instrument in writing," and, if
provable, it must be under § 63a, the relevant part of which is
as follows:
"Debts Which May Be Proved. — (a) Debts of the bankrupt
may be proved and allowed against his estate which are (1) a
fixed liability, as evidenced by a judgment or an instrument in
A^Titing, absolutely owing at the time of the filing of the petition
against him, whether then payable or not, with any interest
thereon which would have been recoverable at that date or with
a rebate of interest upon such as were not then payable and did
not bear interest. * * *" Bankruptcy Act (Act July 1,
1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447] ) § 63a.
The limitation is to claims "absolutely owing at the time of
the filing of the petition against him." For accuracy and uni-
formity of administration, some time had to be fixed. The lan-
guage used excludes the idea that debts may be proved which
did not exist and which the bankrupt did not owe at the time
fixed — the date of the filing of the petition. Subdivision 5 of
the" same section forbids the proving of interest which accrues
on judgments ' ' after the filing of the petition. ' ' When a dis-
charge is granted, it only discharges provable debts, and "none
post-dating the petition in bankruptcy are affected by the dis-
charge." Collier on Bankruptcy (8th ed.) 312; §17, Bank-
ruptcy Act, The property owned by the bankrupt at the date
of bankruptcy vests in the trustee, but property acquired after
the adjudication does not pass to the trustee. § 70, Bankruptcy
Act; In re Parish (D. C), 122 Fed. 553. The date of the filing
of the petition is all-important in setting the time at which the
bankrupt's condition becomes fixed in relation to debts provable
against his estate. This is shown pointedly by a class of cases
446 ADMINISTRATION
relating to court costs. Where part of such costs are incurred
before the filing of the petition and part afterwards, the part
incurred before the filing is provable against the estate and dis-
chargeable, and the part incurred afterwards is not provable or
dischargeable. 1 Remington on Bankruptcy, § 692.
In McCabe v. Patton, 174 Fed. 217, 98 C. C. A. 225, the ques-
tion was on the allowance of attorney's fee provided for in the
notes. The court held that, to be allowed, it must meet the re-
quirements of being ' ' a fixed liability as evidenced by * * *
an instrument in writing absolutely owing at the time of the
filing of the petition against him," The claim was rejected for
want of proof of the rendition of collection services before the
date of bankruptcy. In re Gebhard (D. C), 140 Fed. 571, the
attorney's fee was rejected because no attorney was, in fact,
employed by the creditor "until after the bankruptcy." In re
Garlington (D. C), 115 Fed. 999, the attorney's fees were re-
jected because the note had not matured at the time of the bank-
ruptcy. And In re Keeton, Stell & Co. (D. C), 126 Fed. 426,
the note had become due, but had not been placed in the hands
of an attorney prior to the filing of the petition in bankruptcy,
and the fees were disallowed. In re Jenkins (D. C), 192 Fed.
1000, a provision was placed in chattel mortgages for attorney 's
fees, and the mortgages were placed in the hands of an attorney,
but no services were performed by him; and, subsequently, on
the bankruptcy of the mortgagor, his trustee sold the property,
and the question arose as to the proof of the attorney's fees as
a debt against the bankrupt's estate. The claim was disallowed.
See, also. In re Roche, 101 Fed. 956, 42 C. C. A. 115. The rule
that the fees, to be provable, must have accrued before the filing
of the petition, seems to be generally recognized. Collier on
Bankruptcy (8th ed.) 708; 1 Remington on Bankruptcy, §§ 670,
671 ; 1 Loveland on Bankruptcy, 619, § 300.
In Merchants' Bank v. Thomas, 121 Fed. 306, 57 C. C. A. 374,
decided by this court, and cited by the petitioner, in which
attorney's fees provided for by notes were allowed to be proved,
the notes had been placed in the hands of an attorney and he
had performed services before the bankruptcy. The case in
that regard was wholly unlike the instant case.
Although not due, the mortgage was a provable debt, with the
rebate of interest prescribed by § 63a.
But the petitioner was not obliged to prove his mortgage as a
debt against the bankrupt's estate. 1 Jones on Mortgages (6th
CONTINGENT CLAIMS 447
ed.) § 729. The discharge of the bankrupt would not have af-
fected his right to enforce his mortgage when it became due (In
re Blumberg [D. C] 94 Fed. 476; Bank of Commerce v. Elliott,
6 Am. Bankr. Rep. 409, 109 Wis. 648, 85 N. W. 417; Paxton v.
Scott, 10 Am. Bankr. Rep. 80, 66 Neb. 385, 92 N. W. 611; 2
Jones on Mortgages [6th ed.] § 1236) ; and if, on its becoming
due, he was required to resort to suit, it may be that the amount
of his attorney's fees would be a proper claim to add to the
amount of the mortgage. But that is far from allowing the
mortgage debt to be proved, with abatement of interest, before
it is due, with the addition of attorney's fees which, under the
circumstances, could not have been within the contemplation of
the parties when the contract was made and which were not
absolutely owing at the date of bankruptcy.
In Riggin v. Magwire, 15 Wall. 549, 21 L. ed. 232, it was held
that, although the fifth section of the Bankruptcy Act of 1841
gave the right to prove "uncertain and contingent demands,"
so long as it remains wholly uncertain whether a contract or
engagement will ever give rise to an actual duty or liability and
there is no means of removing the uncertainty by calculation,
such contract or engagement is not provable under the act. The
same construction is placed on the present act. Dunbar v. Dun-
bar, 190 U. S. 340, 23 Sup. Ct. 757, 47 L. ed. 1084. So it seems
clear that the agreement as to attorney's fees, on its face and
at the date of bankruptcy, was not provable as a claim against
the bankrupt estate.
After the date of the filing of the petition, the bankrupt can-
not audd to^ theliabilities of his estate. He may create personal
liabilities which are not affected by the bankruptcy proceedings
and against which his discharge, when obtained, will not pro-
tect him. It may be conceded (but we do not so decide) that,'
although the mortgage was not due, the proceedings to sell, free
of liens, in the District Court were equivalent to foreclosure, and
that the mortgagee, being called into the litigation, was neces-
sarily required to employ an attorney, and that such employ-
ment would be embraced within the clause of the mortgage re-
lating to attorney's fees, and all this would only show an in-
debtedness or liability accruing after the filing of the petition
in bankruptcy; and, whether considered as a secured or an un-
secured claim, it was one not provable flor dischargeable under
448 ADMINISTRATION
the provisions of the bankruptcy act. In re Burka (D. C), 104
Fed. 326.
The petition to revise is denied, and the decree is affirmed.^*
(^.X"^'^^'' InreNEFF
^ ^ -* - • 157 Fed. 57, 84 C. C. A. 561
(Circuit Court of Appeals, Sixth Circuit. November 20, 1907)
LURTON, Circuit Judge. These three appeals have been
heard together, as they involve the provability of a number of
claims against the bankrupt of like character. In tenor and
substance the contracts are alike. That presented by Emily M.
Nichols is an example and is as follows :
"$2,500.00 Bellaire, Ohio, Feb. 7, 1905.
"Two years after date, I, we, or either of us promise to pay
to the order of Miss Emily M. Nichols twenty-five hundred and
no 100 dollars at the office of the Avery-Caldwell Mfg. Co., upon
surrender of certificate No. 38 for 2,500 shares of preferred
stock of said company, value received interest 7 per cent per
annum.
"J. Brent Harding,
"Theodore Neff."
Some of these contracts related to the stock of a manufactur-
ing corporation, known as the Avery-Caldwell Company, and
others to the stock of the Federal Casket Company. It was
agreed, as a fact, that the contract set out and others of like
character were made by the persons signing the same as pro-
moters, and to induce sales of the stock of the corporations
named, and that in consideration of this agreement the claim-
ants became subscribers to the stock of said companies, paying
therefor the amount named in each contract, and received there-
for the shares of stock mentioned. It was also agreed that both
of these corporations were "insolvent" before the bankruptcy
of said Neff, and that this stock was of no value. The stock
certificates were filed as part of the proof in each case and ten-
dered to the trustee. The contracts are plainly ^p^^^finpr't"- to
purchase the shares of stock named at the time and price stated.
TEey rest upon a sufficient consideration, and are written agree-
14 — See in re Pettingill, 137 Fed. In re Putnam, 193 Fed. 464; In re
143; Sayre v. Glenn, 87 Ala. 631; Ellis, 143 Fed. 103.
CONTINGENT CLAIMS 449
ments to take and pay for the shares named and signed by the
parties to be charged and delivered to and accepted by the
promisees. There is, therefore, nothing in the objection as to
the contracts being invalid under the statute of frauds because
not signed by claimants also. Thayer v. Luce, 22 Ohio St. 62 ; ^^^.^^^ ^
Himrod Furnace Co. v. Cleveland, 22 Ohio St. 451 ; Lee v. ->«.v2^ i
Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am. St. Rep. 800; Brown's t^j^^ y^
Statute of Frauds, § 345c. The status of a claim must depend ^\ ^
upon its provability at the time the bankrupt petition was filed. **" *''*'^
At that time it must come within the definition of § 63 of the
bankrupt act ; it cannot be benefited by its status at a later date.
The defense is that these claims were not "fixed liabilities,"
"absolutely owing" at the time of the filing of the petition
against the bankrupt. This is based upon the fact that the lia-
bility of the bankrupt is made dependent upon the surrender
of the stock certificate at a date which had not then arrived,
and that it was optional with the promisees to surrender or
keep the stock until that time, and that the liability of the
promisor was undetermined and contingent until such surrender
at the time named.
That the promisor might refuse performance until the time
named is true. But if, before the time of performance, one
absolutely repudiate liability and disavow unequivocally any
purpose to perform at any time, the other party may treat such
repudiation, at his election, as a breach of the agreement and
sue for his damages. This is the rule as settled in Hochster v.
De La Tour, 2 El, & Bl. 678, and approved by the Supreme
Court in Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L.
ed. 953, and by this court in Foss Brewing Co. v. Bullock, 16
U. S. App. 311, 59 Fed. 83, 8 C. C. A. 14, and Edward Hines
Lumber Co. v. Alley, 43 U. S. App. 169, 73 Fed. 603, 19 C. C.
A. 599 ; McBath v. Jones Cotton Co., 149 Fed. 383, 79 C. C. A.
203 ; Michigan Yacht Co. v. Busch, 143 Fed. 939, 75 C. C. A.
109. So, if one of the parties absolutely disables himself from
performing the contract by putting performance out of his
power, the other party may treat that as a repudiation and bring
his action to recover damages then or wait the time of perform-
ance at his election. This aspect of the question of an anticipa-
tory breach is well put by Fuller, chief justice, in Roehm v.
Horst, cited above, when he says:
"It is not disputed that if one party to a contract has de-
H. & A. Bankruptcy — 29
^.^
450 ADMINISTRATION
stroyed the subject-matter, or disabled himself so as to make
performance impossible, his conduct is equivalent to a breach
of the contract, although the time of performance has not ar-
rived; and also that if a contract provides for a series of acts,
and actual default is made in the performance of one of them,
accompanied by a refusal to perform the rest, the other party
need not perform, but may treat the refusal as a breach of the
entire contract, and recover accordingly."
In Lovell v. St. Louis Life Ins. Co., Ill U. S. 264, 274, 4 Sup.
Ct. 390, 395, 28 L. ed. 423, the company had failed and trans-
ferred its business to another company. The court held that
this authorized one insured to treat the contract as at an end
and to sue to recover back premiums paid although the time of
performance had not arrived. Mr. Justice Bradley, for the
court, said:
"Our third conclusion is that, as the old company totally
abandoned the performance of its contract with the complainant
by transferring all its assets and obligations to the new com-
pany, and as the contract is executory in nature, the complainant
had a right to consider it as terminated by the act of the com-
pany, and to demand what was justly due to him in that ex-
igency. Of this we think there can be no doubt. Where one
party to an executory contract prevents the performance of it,
or puts it out of his own power to perform it, the other party may
regard it as terminated and demand whatever damage he has
sustained thereby. We had occasion to examine this subject in
the recent case of United States v. Behan, 110 U. S. 339, 4 Sup.
Ct. 81, 28 L. ed. 168, to which we refer."
See, also, Carr v. Hamilton, 129 U. S. 669, 9 Sup. Ct. 295, 32
L. ed. 669.
Bankruptcy is a complete disablement from performance and
the equivalent of an out and out repudiation, subject only to
the right of the trustee, at his election, to rehabilitate the con-
tract by performance. In the case styled In re Swift, 112 Fed.
315, 50 C. C. A. 264, this consequence was considered by the
Court of Appeals for the First Circuit in a very satisfactory
opinion by Putnam, C. J. There the obligation of a broker
to deliver certain shares of stock on demand was held to be
breached by bankruptcy, and that no prior demand was essen-
tial, a right of action accruing simultaneously with the bank-
rupt petition, which was the act of disablement to which the
CONTINGENT CLAIMS 451
adjudication related. In re Pettingill Co. (D. C), 137 Fed.
143, 147, Judge Lowell, in a very able and discriminating opinion
in which the authorities are considered in the light of the re-
quirements for a provable debt under the present bankrupt law,
reached the conclusion that:
"If the bankrupt, at the time of bankruptcy, by disenabling
himself from performing the contract in question, and by re-
pudiating its obligation, could give the proving creditor the
right to maintain at once a suit in which damages could be
assessed at law or in equity, then the creditor can prove in
bankruptcy on the ground that bankruptcy is the equivalent of
disenablement and repudiation. For the assessment of damages
proceedings may be directed by the court under § 63h, Act July
1, 1898, c. 541 (30 Stat. 562, U. S. Comp. St. 1901, p. 3447)."
In that case it was held that a contract guaranteeing "the
redemption" of corporate shares, three years after date of issue,
was a provable claim, although the time for "redemption" had
not arrived at date of bankruptcy.
It is sufficient that a claim becomes provable as a consequence
of bankruptcy. The right to sue for and recover dagames then
accrues. As Judge LoweU puts it In re Pettingill Co., cited
above :
"In admission to proof, however, the claim need not arise
before bankruptcy, nor need the contract be broken theretofore.
It is sufficient for proof if the breach of contract and bankruptcy
are coincident."
The creditor by offering to file his claim manifests his elec-
tion to treat the contract as broken. This the court held he
might do. The decree in each case is affirmed. ^^
In re INMAN & CO.
171 Fed. 185 \
(District Court, N. D. Georgia. June 7, 1909)
NEWMAN, District Judge. * * •
It will be perceived from the foregoing that T. B. Ketterson
was in the employment of the bankrupt firm at the time the pro-
15 — See Pennsylvania Steel Co. t. Fed. 308, commented upon in 27
N. Y. City Ey. Co., 198 Fed. 721, Harv. L. Eev. 469.
743; In re Scott Transfer Co., 216 , * ^ .
452 ADMINISTRATION
ceedings in bankruptcy were filed, and that the term for which
he was employed had not expired when the bankruptcy occurred.
He seeks to prove a claim for the unexpired portion of the time
of his employment. He was allowed without objection the
amount that was due him at the time the bankruptcy proceed-
ings were instituted, and, as it was less than three months, he
was allowed priority for the same.
The question presented is an interesting one, and is almost
without direct authority since the passage of the present bank-
ruptcy act. The right to prove, if it exists at all, is under para-
graph 4, § 63, of the bankruptcy act (Act July 1, 1898, c. 541,
30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]). §63 provides
that:
"Debts of the bankrupt may be proven and allowed against
his estate which are * * * (4th) founded upon an open ac-
count or upon a contract expressed or implied."
§ 63& provides that :
"Unliquidated claims against the bankrupt, may, pursuant to
application to the court, be liquidated in such manner as it shall
direct, and may thereafter be proved and allowed against his
estate."
It is conceded that if a breach of contract had occurred prior
to the commencement of the bankruptcy proceedings, and the
claim for damages on account of the breach already existed,
that the amount of such damages might be liquidated in such
manner as the court might direct; but the immediate question
is whether where there is a discontinuance of employment grow-
ing out of. and resulting from^ the tiling of a petition in bank-
ruptcy, and that only the right to damage exists and may be
•proved aild the amount of sudi damage ascertained. Stating
tne inquiry somewhat differently, it is this: Whether, where
proceedings in involuntary bankruptcy are instituted, followed
by an adjudication, and the bankrupt is a party to a contract
of employment not terminated, this of itself is a breach of the
contract on the part of the bankrupt, or is the contract simply
terminated and annulled by operation of law without any de-
fault on the part of the bankrupt ? The latter being true, there
is no cause of action arising as for a breach of contract.
• * «
[After citing the corresponding section of the act of 1867,
and referring and quoting from the case of Dunbar v. Dunbar,
190 U. S, 340, supra, the court continued:]
CONTINGENT CLAIMS 453
According to this, § 63& adds nothing to 63a as to the class
of debts which may be proven, and it was not intended by § 63a
to admit proofs of contingent debts or contingent liabilities.
The liability here on the part of the employers was certainly
contingent. It was contingent upon the life, health, and ability
to render services on the part of the employe in the future, and
contingent also upon the life of the members of the firm of In-
man & Co. The death of one member would have dissolved the
firm and necessitated the winding up of its affairs.
A number of decisions have been cited from other District
Courts and some from Circuit Courts of Appeals in other
circuits. The only one I have seen in the Circuit Courts of
Appeals for this circuit is Atkins v. Wilcox, 105 Fed. 595, 44
C. C. A. 626, 53 L. R. A. 118. This was an effort to prove a
claim for future rental and the judgment of the District Court
refusing to allow the claim was affirmed. This decision is in
line with the decisions on the subject of rent contracts, and
it is conceded by counsel for the claimants here that contracts
for future rent are not provable under the present^bgjija'uptcx
act. The lat^t decision 1 have seen on this question of the right
lo recover rent not due is In re Rubel et al. (D. C.) 166 Fed.
131. The case was decided by Judge Quarles of the District
Court for the Eastern Division of Wisconsin. In that opinion
it is said:
"The text-books and the authorities all seem to concur in the
proposition that rent upon such a lease which has not accrued
at the time of adjudication cannot be proven as a claim in
bankruptcy. Loveland on Bankruptcy (3d ed.) 265, 268; Col-
lier on Bankruptcy, 479; In re Jefferson (D. C.) 93 Fed. 948;
Bray v. Cobb (D. C.) 100 Fed. 270; Atkins v. Wilcox, 105 Fed.
595, 44 C. C. A. 626, 53 L. R. A. 118 ; In re Hays and Foster
(D. C.) 117 Fed. 879; Watson v. Merrill, 136 Fed. 359, 69 C. C.
A. 185, 69 L. R. A. 719, These authorities are not in accord as
to the method of reasoning by which the conclusion is reached.
Some of them hold that the adjudication destroys the relation
of landlord and tenant, and practically annuls the lease. Others
hold that the claim, not being provable in bankruptcy, is not
affected by the discharge ; that the bankrupt remains bound by
his covenant; but that the trustee is not bound thereby. It is
conceded on all hands that the trustee has a reasonable time
after his appointment to determine whether he will adopt the
lease as an asset of the estate, and offer the same for sale, or
454 ADMINISTRATION
whether he will ignore it entirely. For practical purposes it
makes no difference in the instant case which line of authority
is adopted, for either is fatal to a recovery of rent, as such, for
the unexpired term."
After some other discussion immaterial here the judge con-
cludes :
' ' It may be remarked in passing that, if application had been
made to liquidate the claim pursuant to § 636, the proceeding
would have been ineffective unless the claim were of such a na-
ture that, being liquidated, it might have been proven under
§ 63a. Dunbar v. Dunbar, 190 U. S. 340, 350, 23 Sup. Ct. 757,
47 L. ed. 1084. We have seen that the unearned installment
of rent, although liquidated by a written lease, cannot be proven
under § 63a, so that the proceeding to liquidate would have been
unavailable in the instant case."
Counsel for the claimants here rely mainly upon the follow-
ing cases : In re Swift, 112 Fed. 315, 50 C. C. A. 264, In re
Stern, 116 Fed. 604, 54 C. C. A. 60, and In re Pettingill & Co.
(D. C.) 137 Fed. 143, and upon the cases therein cited, par-
ticular stress being laid upon the case cited by Judge Lowell,
Ex parte Pollard, Fed. Case No. 11,252 (2 Lowell, 411, and 17
N. B. R. 228). The second headnote in the latter case is to
this effect:
"The filing of a petition in bankruptcy by a corporation ipso
facto dissolves the contract with an employe, and is tantamount
to a dissolution, and he may have his damages assessed and
prove his amount in a bankruptcy court. ' '
It may be remarked that this decision. Ex parte PoUard, was
under the act of 1867, which, as has been stated, in reference to
the proof of claims of this character was entirely different from
the present act. None of the other cases relied upon were cases
of employer and employe. In re Pettingill & Co. (D. C.) 137
Fed. 143, Judge Lowell in the opinion says:
"It seems, therefore, that the test of provability under the
act of 1898 may be stated, thus : If the bankrupt at the time of
bankruptcy by disenabling himself from performing the con-
tract in question, and by repudiating its obligation, could give
the proving creditor the right to maintain at once a suit in
which damages could be assessed at law or in equity, then the
creditor can prove in bankruptcy on the ground that bankruptcy
is equivalent of disenablement and repudiation. For the assess-
CONTINGENT CLAIMS 455
ment of damages proceedings may be directed by the court under
§ 636 (30 Stat. 562 [U. S. Comp. St. 1901, p. 3447])."
Counsel for the claimants here also consider In re Silverman
(D. C.) 101 Fed. 219, as favorable to them. In that case Silver-
man Bros, on the 9th day of January, 1899, made a deed of
trust of their stock of goods in favor of their creditors. One
Swift was named as trustee in the deed of trust, and took pos-
session of the stock of goods, and on the same day, Jemuary 9,
1899, discharged from the store the employes under Silverman
Bros., including one Rosenberg. On the 18th day of January
thereafter proceedings in involuntary bankruptcy were insti-
tuted against Silverman Bros., and Swift was appointed re-
ceiver. Rosenberg's claim was based upon the breach of his
contract of employment, and he claimed $1,200 for the re-
mainder of the contract year. In the opinion in this case Judge
Philips says:
"There can be no question but what if on the 9th day of
January, 1899, there was a breach of the contract between
Silverman Bros, and Rosenberg by his discharge from their
service, or by their voluntary act which rendered the perform-
ance of the contract on their part impossible, a cause of action
at once arose in favor of Rosenberg against Silverman Bros, for
damages; and it is equally clear that the subsequent adjudica-
tion of bankruptcy in February, 1899, did not put an end to
the cause of action, as it was then an existing right, which the
mere adjudication in bankruptcy could not destroy. So the
real question in this case is not whether an adjudication in
bankruptcy against the employer would put an end to a con-
tract with an employe like the one in question, so that the dis-
charge of the employe would be under the operation of the
bankruptcy law, and not by reason of the voluntary act of the
employer, but it is whether or not the act of Silverman Bros, in
making the deed of trust and placing Swift in absolute charge
of the store and its business, whereby Rosenberg was displaced
as manager and employe, did not constitute a breach of the
contract, and create a subsisting cause of action, three weeks
before the adjudication in bankruptcy."
The court then holds that there was such a breach of con-
tract, and fixes the amount that Rosenberg would be entitled
to recover. I do not consider this case of In re Silverman au-
thority either way.
In the case of In re Imi>erial Brewing Company (D. C.) 143
456 ADMINISTRATION
Fed. 579, decided by Judge Philips for the Western District of
Missouri, it is said:
' * The question to be decided is : Did the adjudication in bank-
ruptcy against the Imperial Brewing Company in and of itself
constitute such a breach of the contract as to mature the whole
executory contract, entitling the claimant to prove up and have
allowed against the estate in bankruptcy the damages claimed?
While the statement of the petition is a little indefinite respect-
ing the proceedings leading to the adjudication, the court will
take cognizance of its own records, which show that it was an
involuntary proceeding in bankruptcy — necessarily so because
the corporation could not on its own voluntary petition be ad-
judged a bankrupt. While the petition herein states that the
Imperial Brewing Company was permanently disabled from
performing said contract and repudiated the same in all its
parts, and that it retired permanently from business and was
hopelessly insolvent, etc., these results are alleged to follow 'by
reason of said bankruptcy proceedings.' At the time of the
adjudication in bankruptcy, there was no debt owing by the
bankrupt to the claimant. There had been no delivery or tender
of delivery prior thereto, and none since. It may be conceded as
the law of this jurisdiction that where a party is bound from
time to time, as expressed in the contract, to deliver articles to
be manufactured or products to be grown, each parcel as deliv-
ered to be paid for at a certain time and in a certain way, a
refusal by the vendee to be further bound by the terms of the
contract or to accept further deliveries constitutes a breach of
the contract as a whole, and gives the vendor a right of action
to recover the damages he may sustain by reason of such refusal.
In such case the positive refusal of the vendee to perform when
tender is made, or notice by him to the vendor before maturity
of the time for delivery that he will not carry out the contract,
will release the vendor from making any tender, and entitle
him to an action in advance of the fixed period for delivery on
his part to recover damages as for breach of the whole contract.
Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. ed. 953. The
sole reliance of the claimant to bring it within this rule for such
breach is predicated on the adjudication in an involuntary pro-
ceeding in bankruptcy against the vendee. I am unable to con-
sent to the proposition that such an adjudication in bankruptcy,
ex vi termini, is in law tantamount to a refusal of the bankrupt
to perform, or that it thereby permanently disabled itself from
CONTINGENT CLAIMS 457
performance to bring the claim asserted by petitioner within i
the operation of the rule laid down in Roehm v. Horst, supra." I
The judge then cites and quotes from the opinion in Watson v.
Merrill, 136 Fed. 359, 69 C. C. A. 185, 69 L. R. A. 719, decided
by the Circuit Court of Appeals for the Eighth Circuit, and In
re Swift, supra, and says :
"In re Swift, 112 Fed. 315, 50 C. C. A. 264, a broker had
made a contract to deliver certain stock to a customer. It was
held that he made it impossible to fulfill his agreement to deliver
the stock by his adjudication in bankruptcy, for the reason that
it took the stock from him and vested it with all his property,
in his trustee. But that is clearly not this case."
Judge Philips refers to In re PettingiU & Co., supra, in this
way:
"I may say that I can concur in the syllabus of that case
that, under the bankruptcy act, the provability of a claim de-
pends upon its status at the time of the filing of the petition
in bankruptcy. If not then a provable debt, as defined in the
act, it cannot be proved, although it may thereafter come within
such definition, * * * If, however, it was intended to hold
that as applied to an executory contract for the sale of annual
crops to be raised in successive years, where no breach had
occurred at the time of an involuntary adjudication in bank-
ruptcy, the mere act of such declared statutory insolvency con-
stituted such a breach of the contract as to enable the vendor
to prove up against the estate the contingent damages, as, on a
repudiation of the contract by the vendee, I cannot consent
thereto. There was no renunciation by the vendee company of
the contract after the commencement of performance or renun-
ciation before the time for performance had arrived. Nor has
the vendee deliberately incapacitated itself or rendered per-
formance of the contract impossible within the rule laid down
in Roehm v. Horst, 178 U. S. 18, 20 Sup. Ct. 787, 44 L. ed. 953.
As a discharge in bankruptcy under § 1, cl. 12, means no more
than 'the release of a bankrupt from all of his debts which
are provable in bankruptcy, except such as are excepted by
the act,' and the claim for damages for a possible future breach
of a contract is not a debt provable against the estate, in the
absence of any refusal on the part of the bankrupt to recog-
nize the contract, and he has not voluntarily or positively dis-
abled himself from performing it, where its performance does
not become obligatory until after the adjudication in bankruptcy,
458 ADMINISTRATION
my conclusion is that the claim in question is not one provable
in bankruptcy. It is a noteworthy fact that, under the bank-
rupt acts of 1841 and 1867, the right was given to prove 'un-
certain and contingent demands' against the estate. This
provision was omitted from the present bankruptcy act of 1898.
In my judgment this omission is significant."
The important question in the instant case, and the one which
in my judgment is controlling, is discussed in the cases to which
I shall now refer. The first of these is In re Jefferson (D. C.)
93 Fed. 948, decided by Judge Evans for the District of Ken-
tucky. The syllabus in that case is as follows:
"A lease for a term of years, reserving rent payable in
monthly installments, is terminated by the adjudication of the
lessee as a bankrupt during the term; and the landlord has no
provable claim against the tenant's estate in bankruptcy for
the rent which would have accrued under the lease after the
date of such adjudication."
The reasoning of the court in the opinion to the effect that
proceedings in bankruptcy terminate the relation of landlord
and tenant applies, it seems to me, with equal force to the rela-
tion of employer and employee. The next case in order is that of
Bray v. Cobb (D. C.) 100 Fed. 270, decided by Judge Purnell
for the Eastern District of North Carolina. In the opnion he
says:
* ' The relation of landlord and tenant is severed by operation
of the bankruptcy law."
The question was again presented before Judge Evans In re
Hays, Foster & Ward Company (D. C.) 117 Fed. 879, and the
opinion expressed In re Jefferson, supra, was reiterated. In
both cases the conclusion reached is based largely upon the de-
cisions in Bailey v. Loeb, 2 Fed. Cas. 376 ; In re Webb, 29 P'ed.
Cas. 494; In re Breck, 4 Fed. Cas. 43. In Watson v. Merrill,
136 Fed. 359, 69 C. C. A. 185, 69 L. R. A. 719, decided in the
Circuit Court of Appeals for the Eighth Circuit, the opinion
being delivered by Circuit Judge Sanborn, the court differs
from the views expressed in the three cases just referred to,
although it reaches the same result; that is, that a claim for
damages for a breach of a contract in a lease to pay install-
ments of rent for the use of the premises at times subsequent
to the filing of the petition in bankruptcy is not provable under
the bankruptcy law of 1898. In the opinion it is said :
"An adjudication in bankruptcy does not dissolve or termi-
CONTINGENT CLAIMS 469
nate the contractual relations of the bankrupt, notwithstanding
the decisions to the contrary In re Jefferson (D. C.) 93 Fed. 448;
Bray v. Cobb (D. C.) 100 Fed. 270; and Re Hays, Foster &
Ward Company (D. C.) 117 Fed. 879. Its effect is to trans-
fer to the trustee all the property of the bankrupt except his
__executory contracts, flnd tQ^vest in the trustee the option to
assume or to renounce these. It is the assignment of the prop-
erty of the bankrupt to the trustee by operation of law. It
neither releases nor absolves the debtor from any of his contracts
or obligations, but, like any other assignment of property by
an obligor, leaves him bound by his agreements and subject
to the liabilities he has incurred. It is the discharge of the
bankrupt alone, not his adjudication, that releases him from
liability for provable debts in consideration of his surrender
of his property, and its distribution among the creditors who
hold them. Even the discharge fails to relieve him from claims
against him that are not provable in bankruptcy, and, since the
filing of the petition in bankruptcy may not be the basis of a
provable claim, his liability for them is neither released nor
affected by his adjudication in bankruptcy, or by his discharge
from his provable debts. One agrees to pay monthly rents for
the place of residence of his family or for his place of busi-
ness, or to render personal services for monthly compensation
for a term of years, he agrees to purchase or to convey prop-
erty, and he then becomes insolvent and is adjudicated a bank-
rupt. His obligations and liabilities are neither terminated
nor released by the adjudication. He still remains legally bound
to pay the rents, to render the services, and to fulfill all his other
obligations, notwithstanding the fact that his insolvency may
render him unable immediately to do so. Nor are those who
contracted with him absolved from their obligations. If he or
his trustee pays the stipulated rents for his place of residence
or for his place of business, the lessors may not deny to the
payor the use of the premises according to the terms of the
lease. If he renders the personal services, he who contracted
to pay for them may not deny his liability to discharge this
obligation. His trustee does not become liable for his debts,
but he does acquire the right to accept and assume or to re-
nounce the executory agreements of the bankrupt as he may
deem most advantageous to the estate he is administering, and
the parties to those contracts which he assumes are still liable to
perform them. And so, throughout the entire field of con-
460 ADMINISTRATION
tractual obligations, the adjudication in bankruptcy absolves
from_jio_agreement. terminates no contract^ and discharges no
"Eabilityr In re Curtis, 9 Am. Bankr. Rep. 286, 109 La. 1717^
South. 125; In re Ells (D. C.) 98 Fed. 967, 968; Witthaus v.
Zimmerman, 11 Am. Bankr. Rep. 314, 315, 91 App. Div. 202,
86 N. Y. Supp. 315 ; White v. Griffing, 44 Conn. 437, 446, 447 ;
In re Pennewell, 119 Fed. 139, 55 C. C. A. 571."
It will be seen from the foregoing that the conclusion reached
in this case of Watson v. Merrill was that claims for future rent,
and probably, from the language used in the opinion, for future
personal services, are not provable in bankruptcy, though the
reason given therefor is entirely different from that given in
the other cases. According to this last opinion contracts such
as those in question here will remain of force and unaffected by
the bankruptcy proceedings. Bailey v. Loeb, 2 Fed. Cas. 376,
was decided under the act of 1867 by Circuit Judge Wood, after-
wards a Justice of the Supreme Court. An extract from the
opinion in that case will show the view that Judge Wood enter-
tained of the matter, as follows:
"For instance, a business man has a manager or bookkeeper
hired by the year, at a salary payable quarterly. At the end of
two months he is adjudicated bankrupt. His manager or book-
keeper may prove for a proportionate part of his salary up to
the time of the bankruptcy, but he cannot prove for any part
that may accrue and fall due after the bankruptcy. The clear
purpose of the bankruptcy act is to cut off all claims for rent
to accrue, or for services to be rendered, after the date of the
bankruptcy."
The fact that this decision by Judge Wood was under the
bankruptcy act of 1867 strengthens it as an authority, because
it is generally conceded that the bankruptcy act of 1867 was
more liberal as to the proof of claims for contingent liabilities
than is the present act. In Malcomson v. Wappoo Mills et al.
(C. C.) 88 Fed. 680, Judge Simonton held that:
"Damages are not recoverable against a corporation for its
failure to perform a contract for the sale and delivery of mer-
chandise, where performance was prevented solely by the action
of a court in appointing a receiver for the corporation, and en-
joining all others from interfering with its business or property.
In such cases the breach of contract is damnum absque injuria."
It seems clear to me that adjudication in bankruptcy ends
contracts for rent, and for personal services, and I agree with
CONTINGENT CLAIMS 461
the views expressed in the opinions in In re Jefferson, supra,
Bray v. Cobb, supra, In re Hayes, Foster & Ward Company,
supra, and Malcomson v. Wappoo Mills et al., supra. The case
of James Dunlap Carpet Company (D. C.) 163 Fed. 541, is a
case favorable to the contention of the claimants here to the
,£^tent of allowing proof of claim. The difficulty about the case
to my mind is that the learned judge based his decision on Mocli
V. Market Street National Bank, 107 Fed. 897, 47 C. C. A. 49.
In the case of Moch v. National Bank the person seeking to
prove had indorsed for the bankrupt and the paper matured
after the bankruptcy proceedings were instituted. The indorser
paid the paper, and then proposed to prove it as a debt against
the bankrupt in the bankruptcy proceedings. I can see no similar-
ity at all between such a case and the case of an employe seek-
ing to prove for salary to be earned by services to be rendered
in the future. The indorsement in the Moch Case was a definite
and fixed liability which the indorser had undertaken for the
bankrupt, and it was in existence before the bankruptcy pro-
ceedings commenced. It matured, and the indorser was com-
pelled to pay the debt pending the bankruptcy proceedings. This
is entirely different from a contract to render personal services.
Such services depend upon the life, health, and ability other-
wise of the employe to render the services, and also upon the
life, certainty, and perhaps other contingencies as to the em-
ployer. But it is a partnership in bankruptcy here, and what-
ever is true as to individual cases there would seem to be no
doubt, first, that a partnership is dissolved by the bankruptcy
proceedings (22 Am. & English Cyclopedia of Law [2d ed.]
202, and 30 Cyc. 654, and cases cited in both) ; and, second, if
the firm is dissolved by operation of law, then certainly the
contracts of that firm are ended.
In Griggs v. Swift, 82 Ga. 392, 9 S. E. 1062, 5 L. R. A. 405,
14 Am. St. Rep. 176, it is held in the opinion by Chief Justice
Bleckley :
''From the very nature of a contract for the rendering of
personal services to a partnership in its current business, where
nothing is expressed to the contrary, both parties should be re-
garded as having by implication intended a condition dependent
on the one hand upon the life of the employe, and, on the other,
upon the life of the partnership, provided the death in either
case was not voluntary."
462 ADMINISTRATION
Wood on Master and Servant, § 163, is then quoted with ap-
proval to the following effect:
" 'Where a servant is employed by a firm, a dissolution of
the firm dissolves the contract, so that a servant is absolved
therefrom; but, if the dissolution results from the act of the
parties, they are liable to the servant for his loss therefrom, but,
if the dissolution results from the death of a member of the
firm, the dissolution resulting by operation of law, and not from
the act of the parties, no action for damages will lie. * • *
So, if a firm consists of two or more persons, and one or more
of them dies, but the firm is not thereby dissolved, the contract
still subsists, because one or more of his partners is still in the
firm, and this is so even though other persons are taken into
the firm. The test is whether the firm is dissolved. So long as
it exists, the contract is in force, but, when it is dissolved, the
contract is dissolved with it, and the question as to whether dam-
ages can be recovered therefor will depend upon the question
whether the dissolution resulted from the act of God, the opera-
tion of law, or the act of the parties. ' ' '
None of the cases cited from the United States Courts seem
to bear directly upon the question immediately involved here —
that is, of the right of an employe to prove for future services —
except, perhaps, the case of James Dunlap Carpet Company,
supra, and with the utmost respect for the learned judge decid-
ing the case I am, for the reason stated above, unable to agree
with his conclusion. I have, i>erhaps, cited authorities at un-
necessary length, but the question is an interesting one, and is
presented in its present shape for the first time in this district.
' I do not believe that it was the intention and purpose of the
bankruptcy act that contracts extending into the future for
rent and personal services should be left hanging over the
bankrupt to embarrass and harass him after his discharge in
bankruptcy. It is said that if this is not true, and he is relieved
of such liability by the bankruptcy act, it follows that claims
for such rent and personal service should be admitted to proof
in the bankruptcy proceedings. I do not think this follows at
all. The adjudication in bankruptcy ends all such contracts.
Of course, proof may be allowed for any amount due prior to
the institution of the proceedings in bankruptcy. It is provided
by the bankruptcy act that for most personal services the em-
ploye would have priority for any amount due him for as much
as three months preceding the bankruptcy proceedings. This
SECURED CLAIMS 463
fact of priority of payment for three months extending to so
large a class of employes is another reason why I believe it was
the intention, in passing this act, that such contracts should
terminate with the adjudication in bankruptcy. All this is cer-
tainly true as to a partnership. The adjudication dissolves it
by operation of law, and that dissolution ends all its liabilities
except such as are expressed in the act.
My conclusion is that the referee in bankruptcy correctly de-
cided that this claim should not be admitted to proof. ^<^
S^. -T/H
D. Secured Claims
SEXTON V. DREYFUS et al.
219 U. S. 339, 55 L. ed. 244, 31 Sup. Ct. 256
(United States Supreme Court, January 23, 1911)
Mr. Justice HOLMES delivered the opinion of the court:
In both of these cases, secured creditors, selling their se-
curity some time after the filing of the petition in bankruptcy,
and finding the proceeds not enough to pay the whole amount
of their claims, were allowedby the referee to apply the pro- /Ctv^^.^^
ceeds first to interest accrued since the filing of the petition, ^ ■
then to principal, and to prove for the balance. The referee ^'"""^t
certTfied the question whether the creditors had a right to the ^^*-^-w«
interest. The district judge answered the question in the affirm- "^^^ Z.
ative, giving the matter a very thorough and persuasive dis-
cussion, and declining to follow the English rule. Re Kessler, f y (*
171 Fed. 751, On appeal, his decision was affirmed by a ma-
jority of the Circuit Court of Appeals. 180 Fed. 979.
The argument certainly is strong. A secured creditor could
apply his security to interest first when the parties were solv-
ent (Story V. Livingston, 13 Pet. 359, 371, 10 L. ed. 200, 206),
and liens are not affected by the statute. § 67c2 [30 Stat, at L.
564, c. 541, U. S. Comp. Stat. 1901, p. 3449]. The law is not
intended to take away any part of the security that a creditor
may have, as it would seem at first sight to do if the course
adopted below were not followed. Some further countenance to
that course is thought to be found in § 57/t, which provides that
16 — See In re James Dunlap Car-
pet Co., 163 Fed. 541; In re D.
Levy & Sons Co., 208 Fed. 479.
464 ADMINISTRATION
the value of securities shall be determined by converting them
into money "according to the terms of the agreement," for it
is urged that, by construction, the right to apply them to in-
terest is as much part of the agreement as if it had been written
in. Nevertheless, it seems to us that, on the whole, the considera-
tions on the other side are stronger and must prevail.
/ For more than a century and a half the theory of the English
bankrupt system has been that everything stops at a certain
date. Interest was not computed beyond the date of the com-
qj^ion. Ex parte Bennet, 2 Atk, 527. This rule was applied'
1 to mortgages as well as to unsecured debts (Ex parte Wardell,
1787; Ex parte Hercy, 1792, 1 Cooke, Bankrupt Laws, 4th ed.
181 [1st ed. Appx.]); and notwithstanding occasional doubts,
it has been so applied with the prevailing assent of the English
judges ever since (Ex parte Badger, 4 Ves. Jr. 165 ; Ex parte
Ramsbottom, 2 Mont. & A. 79 ; Ex parte Penf old, 4 De G. & S.
282; Ex parte Lubbock, 9 Jur. N. S. 854; Re Savin, L. R. 7 Ch.
760, 764; Ex parte Bath, L. R. 22 Ch. Div. 450, 454; Quarter-
maine's Case [1892] 1 Ch. 639; Re Bonacino, 1 Manson, 59).
As appears from Cooke, supra, the rule was laid down not be-
cause of the words of the statute, but as a fmidamentaljgnn^^
We take our bankruptcy system from England, and we naturally
assume that the fundamental principles upon which it was ad-
ministered were adopted by us when we copied the system,
somewhat as the established construction of a law goes with the
words where they are copied by another state. No one doubts
that interest on unsecured debts stops. See § 63 (1). Shawnee
County V. Hurley, 94 C. C. A. 362, 169 Fed. 92, 94.
The rule is not unreasonable when closely considered. It
simply fixes the moment when the affairs of the bankrupt are
supposed to be wound up. If, as in a well-known illustration
of Chief Justice Shaw's (Parks v. Boston, 15 Pick. 198, 208),
the whole matter could be settled in a day by a pie-powder court,
the secured creditor would be called upon to sell or have his
security valued on the spot, would receive a dividend upon that
footing, would suffer no injustice, and could not complain. Mr,
under § 57 of the present act, the value of the security shoiild
be determined by agreement or arbitration, the time for fix:ing
it naturally would be the date of the petition. At that moment
the creditors acquirve,.A.right.w rem against, the.. assets. Chem-
ical Nat. Bank v. Armstrong, 28 L. R. A. 231, 8 G.'C A. 155, 16
U. S. App. 465, 59 Fed. 372, 378, 379; Merrill v. National
SECURED CLAIMS 465
Bank, 173 U. S. 131, 140, 43 L. ed. 640, 643, 19 Sup. Ct. Rep.
360. When there is delay in selling because of the hope of get-
ting a higher price, it is more for the advantage of the secured
creditor than of any one else, as he takes the whole advance,
and the others only benefit by a percentage, which does not
seem a good reason for allowing him to prove for interest by
indirection. Whenever the creditor proves, his security may
be cut short. That is the necessarily possible result of bank-
ruptcy. The rule under discussion fixes the moment in all cases
at the date [on] which the petition is filed; but beyond the fact
of being compelled to realize his security and look for a new in-
vestment, there is no other invasion of the secured creditor's
contract rights, and that invasion is the same in kind what-
ever moment may be fixed.
It is suggested that the right of a creditor having security
for two claims, one provable and the other unprovable, to mar-
shal his security against the unprovable claim (see Hiscock v.
Varick Bank, 206 U. S. 28, 37, 51 L. ed. 945, 951, 27 Sup. Ct.
Rep. 681), is inconsistent with the rule applied in this case. But
that right is not affected by fixing a time for winding up, and
the bankruptcy law does not touch securities otherwise than in
this unavoidable particular. The provision in § 57h for con-
verting securities into money ac(x>rding to the terms of the
agreement has no appreciable bearing on the question. Apart
from indicating, in accordance with § 67rf, that liens are not to
be affected, it would seem rather to be intended to secure the
right of the trustees and general creditors in cases where the
security may be worth more than the debt. The view that we
adopt is well presented in the late Judge Lowell 's work on Bank-
ruptcy, § 419 ; seems to have been entertained in Coder v. Arts,
15 L. R. A. (N. S.) 372, 82 C. C. A. 91, 152 Fed. 943, 950
(affirmed without touching this point, 213 U. S. 223, 53 L. ed.
772, 29 Sup. Ct. Rep. 436, 16 A. & E. Ann. Cas. 1008), and in
somewhat sustained by analogy in the case of insolvent banks
(Merrill v. National Bank, supra; White v. Knox, 111 U. S. 784,
787, 28 L. ed. 603, 604, 4 Sup. Ct. Rep. 686).
Interest and dividends accrued upon some of the securities
after the date of the petition. The English cases allow these
to be applied to the after-accruing interest upon the debt. Ex
parte Ramsbottom; Ex parte Penfold; and Quartermaine 's
Case, — supra. There is no more reason for allowing the bank-
rupt estate to profit by the delay beyond the day of settlement
H. & A. Bankruptcy — 30
466 ADMINISTRATION
than there is for letting the creditors do so. Therefore to apply
these subsequent dividends, etc., to subsequent interest, seems
just.
Decrees reversed.
^il ^ Cy/ (^Jy^ >/> E. Claims Having Priority
, ^^ ^ I -^^ In re ROUSE, HAZARD & CO.
iw '^ ^»>-^^ ^^ ^®^- ^^' ^^ ^- ^- ^- ^^^
j^ 1^ Circuit Court of Appeals, Seventh Circuit. January 3, 1899)
- q \ JENKINS, Circuit Judge, delivered the opinion of the court.
^y^t^^ * * * It appears that on the 1st day of November, 1898,
j^j' an involuntary petition was filed in the court below against
' i Rouse, Hazard & Co., a corporation existing under the laws of
5^^'*'^ the state of Illinois, and that on the 11th day of November,
1898, that corporation was adjudicated a bankrupt ; that on the
5th day of November, 1898, a petition was filed in the court
below by a large number of workmen, laborers, and servants
of Rouse, Hazard & Co., asking for the payment of their labor
claims accruing to them prior to the filing of the petition, and
that such claims be awarded priority in payment out of the
bankrupt's estate. Rouse, Hazard & Co., on the 31st day of
August, 1898, suspended business, its property on that date
being seized by the sheriff of Peoria county, 111., under execu-
tions issued upon judgments rendered against the corporation
in the courts of the state of Illinois, and such property remained
in the possession of the sheriff until it was sold by him, and the
proceeds, under order of the bankrupt court, turned over to
the temporary receiver appointed under the bankruptcy pro-
ceedings. The labor claims in question accrued within three
months prior to August 31, 1898, the date upon which the cor-
poration bankrupt suspended business by reason of the levy of
the executions, none of the services for which payment was sought
being rendered after that date. Specific objections were filed by
certain general creditors to the allowance of priority of pay-
ment of these claims, and upon the hearing in the bankruptcy
court it was ordered that the claims for wages as shown by the
receiver's report be approved as preferred claims, not exceeding
by any one claimant the sum of $300, and that such claims
should be paid out of the bankrupt's estate in preference and
priority to the general creditors. It is this direction for the pay-
CLAIMS HAVING PRIORITY 467
ment of labor claims in priority to the general creditors that is
asked to be reviewed here as a question of law.
The bankrupt law (e. 7, § 646) provides that:
* ' The debts to have priority, except as herein provided, and to
be paid in full out of the bankrupt 's estate, and the order of pay-
ment shall be * * * (4) wages due to workmen, clerks or /
servants which have been earned within three"months before the
date of the commencement of proceedings, not to exceed $300 to
each claimant. (5) Debts owing to any person, who by the laws
of the states, or of the United States, is entitled to priority'*^"'""
The laws of the "slate of Illinois with respect to voluntary
assignments provides (Rev. St. 111. 1898, p. 172, c. 10, § 6) :
* * That all claims for the wages of any laborer or servant, which
have been earned within the term of three months next preceding
the making of such assignment, and which have been filed within
said term of three months after such assignment, and to which no
exception has been made, or to which exception has been made
and the same having been adjudicated and settled by the court,
shall, after the payment of the costs, commissions and expenses
of assignment, be preferred, and first paid to the exclusion of all
other demands and claims. ' '
By c. 38a, p. 629, Rev. St. 111. 1898, it is provided:
* * That hereafter, when the business of any person, corporation,
company or firm shall be suspended by the action of creditors, or
be put into the hands of a receiver or trustee, then in all such
cases the debts owing to laborers and servants which have accrued
by reason of their labor or employment, shall be considered and
treated as preferred claims, and such laborers or employes shall
be preferred creditors, and shall be first paid in full, and if there
shall not be sufficient to pay them in full the same shall be paid
from the proceeds of the sale of the property seized. ' '
*********
Coming, then, to the merits, it may be remarked by way of
preface that the several provisions of the law of the state of Illi-
nois with respect to the priority of payment to be allowed labor
claims are not altogether consistent. In the case of voluntary as-
signments, the claim of the laborer which is preferred must have
accrued within three months next preceding the making of the
assignment. In the case of a suspension of business by action of
creditors there is neither limit as to time nor as to amount. The
reason of the distinction is not easy to understand. It is also to
be observed that the Bankrupt Court whose order is here under
468 ADMINISTRATION
review proceeded upon the theory that § 64&, cl. 4, applied as to
the amount, but did not apply as to time. Singularly enough,
priority of payment of claiilis was allowed upon the theory that
the provision of § 64&, cl, 5, governed, and that, notwithstanding
the previous provision, wherever the laws of a state granted
priority with respect to payment of labor claims, those laws must
be recognized and followed. Yet here the Bankrupt Court has
allowed priority with respect to these claims without regard to
limitation of time, but has imposed the limitation of the bankrupt
act with respect to amount when the law of the state under which
priority was allowed contains no such limitation.
The question here is one of construction of the bankrupt law
of the United States, and is this: whether the congress, having
spoken by a particular provision (§ 64&, cl. 4) with respect to the
prionty to be allowed labor claimants, and having subsequently
in the same act (§ 646, cl. 5) spoken generally with respect to
the recognition of the priorities allowed by the laws of the state
or the United States, the latter general provision overrides or en-
larges the prior special provision. The bankrupt act, by its
terms, went into full force and effect upon its passage, July 1,
1898, and * * * was operative from the date of its passage,
and was effective from that date to supersede the insolvency laws
of the several states. Manufacturing Co, v. Hamilton (Mass.) 51
N. E. 529; Blake v. Francis-Valentine Co., 89 Fed. 691; In re
Bruss-Ritter Co. (E, D. Wis.) 90 Fed. 651. * * * What was
the real intention of the congress as expressed in clauses 4 and 5
of § 646 ? In the first clause congress addresses itself to the sub-
ject of labor claims, and particularly provides that all wages that
have been earned within three months before the date of the com-
mencement of proceedings in bankruptcy, not to exceed $300 to
each claimant, shall be awarded priority of payment. It recog-
nized, it must be assumed, the various provisions of law in the
several states with respect to this subject. It found them not to
be in harmony, and in some states — as, notably, Illinois — the laws
upon that subject not to be consistent with each other. It found
limitation as to time different in the different states. It found
that in some of the states priority of payment was unlimited as
to amount, and in some limited to so small a sum as $50. With
this divergence within its knowledge, the congress spoke to the
subject specially and particularly, and limited the amount to
$300, and, as to time, to wages earned within three months before
the commencement of proceedings. Can, then, the general pro-
CLAIMS HAVING PRIORITY 469
vision of the law following immediately thereafter, allowing pri-
ority of payment for all debts owing to any person who, by the
laws of the states or the United States, is entitled to priority, be
held to enlarge the prior provision so that the statute should
be read that, in any event, the laborer should be entitled to pri-
ority of payment in respect of wages earned within three months
prior to proceedings, and in amount not exceeding $300, and
that wherever the laws of the state of the residence of the bank-
rupt grant the laborer priority of payment without limit as to
time or amount, or impose a limit in excess of that imposed by
the bankrupt act, he shall be entitled to a further priority in pay-
ment according to the law of the particular state ? We think not.
It is not to be supposed — unless the language of the act clearly
so speaks — that the congress intended that in the administration
of the act there should be a marked contrariety in the priority
of payment of labor claims dependent upon locality. It is an
elementary principle of construction that where there are in one
act or in several acts contemporaneously passed specific provisions
relating to a particular subject, they will govern in respect to
that subject as against general provisions contained in the same
act. See Suth. St. Const. § 158. Thus, in State v. Inhabitants of
Trenton, 38 N. J. Law, 67, it is said: "When the intention of
the lawgiver, which is to be sought after in the interpretation of
a statute, is specifically declared in a prior section as to a par-
ticular matter, it must prevail over a subsequent clause in gen-
eral terms, which might, by construction, conflict with it. The
legislature must be presumed to have intended what it expressly
stated, rather than that which might be inferred from the use
of general terms." * * *
Our conclusion is that congress having spoken specifically to
the subject of priority of payment of labor claims, what it has
said upon that subject expresses the particular intent of the law-
making power, and that provision is not to be tolled or enlarged
by any general prior or subsequent provision in that act. That
which is given in particular is not affected by general words. So
that the statute providing for the priority of payment of debts
referred to in clause 5 must be construed to mean other debts
and different debts than those specified in clause 4. We are not
unmindful of the particular hardship which our conclusion, it
is said, will work out here. It arises from the fact that under
the law proceedings in bankruptcy, except by voluntary act of
the bankrupt, could not be commenced in time to fully protect
470 ADMINISTRATION
these labor claimants. We regret that this is so. It is a mis-
fortune arising from the provisions of the act, but to remedy
this particular wrong we cannot override a recognized canon
of construction of statute law.
The prayer of this petition must be allowed, and the order
of the District Court, * * * so far as it allows priority of
payment to labor claims which accrued prior to the 1st day of
^ August, 1898, must be set aside, and held for naught. * * *
V ^ ■ j^
1^1! ^ \ SHROPSHIRE, WOODLIFF & CO. v. BUSH et al.
t ^ ^J^ 204 U. S. 186, 51 L. ed. 436, 27 Sup. Ct. 178
/Av*^ ■* (United States Supreme Court. January 7, 1907)
K
i Mr. Justice MOODY delivered the opinion of the court:
The appellees are trustees of the bankrupt estate of the
Southern Car & Foundry Company. The appellants, before the
commencement of the proceedings in bankruptcy, acquired by
purchase and assignment a large number of claims for wages
of workmen and servants, none exceeding $300 in amount, and
aU earned within three months before the date of the commence-
ment of the proceedings in bankruptcy. The District Court
for the eastern district of Tennessee rendered a judgment dis-
allowing priority to these claims, because, when filed, they
were not "due to workmen, clerts, or servants."
On appeal to the Circuit Court of Appeals for the sixth circuit
that court duly certified here for instructions the following ques-
tion:
"Is an assignee of a claim for wages earned within three
months before the commencement of proceedings in bankruptcy
against the bankrupt debtor entitled to priority of payment, un-
der § 64 (4) of the bankrupt act, when the assignment occurred
prior to the commencement of such bankruptcy proceedings?"
The question certified has never been passed upon by any
Circuit Court of Appeals, and in the District Courts the decisions
upon it are conflicting. Re Westlund, 99 Fed. 399 ; Re St. Louis
Ice Mfg. & Storage Co., 147 Fed. 752 ; Re North Carolina Car Co.
[semftie], 127 Fed. 178, where the right of the assignee to pri-
ority was denied; Re Brown, 4 Ben. 142, Fed. Cas. No. 1,974
[act of 1867, 14 Stat, at L. 517, c. 176] ; Re Harmons, 128 Fed.
170, where, on facts slightly but not essentially different, the
right of the assignee to priority was affirmed.
CLAIMS HAVING PRIORITY 47X
The bankruptcy law (act July 1, 1898, 30 Stat, at L. pp. 544,
563, c. 541, U. S. Comp. Stat. 1901, p. 3447), in §1, defines
**debt" as including "any debt, demand, or claim, provable in
bankruptcy. " § 64, under which priority is claimed in this case,
is, in the parts material to the determination of the question, as
follows :
' * § 64. Debts which have priority. — * * * b. The debts
to have priority, except as herein provided, and to be paid in
full, out of bankrupt estates and the order of payment, shall be
* * * (4) wages due to workmen, clerks, or servants
which have been earned within three months before the date of
the commencement of proceedings, not to exceed three hundred
dollars to each claimant ; * * * "
The precise inquiry is whether the right of prior pajrment thus
conferred is attached to the person or to the claim of the wage-
earner; if to the person, it is available only to him; if to the
claim, it passes with the transfer to the assignee. In support of
the proposition that the right is personal to the wage-earner, and
enforceable only by him, it is argued that it is not wages earned
within the prescribed time which are given priority, but wages
"due to workmen, clerks, or servants;" that when the claim is
assigned to another it is no longer "due to workmen, clerks, or
servants," but to the assignee ; and therefore, when presented by
him, lacks one of the characteristics which the law makes essen-
tial to priority. In this argument it is assumed that the wages
must be "due" to the earner at the time of the presentment of
the claim for proof, or, at least, at the time of the commencement
of the proceedings in bankruptcy. Without that assumption the
argument fails to support the conclusion. But the statute lends
no countenance to this assumption. It nowhere expressly or by
fair implication says that the wages must be due to the earner
at the time of the presentment of the claim, or of the beginning
of the proceedings, and we find no warrant for supplying such
a restriction. Regarding, then, the plain words of the statute,
and no more, they seem to be merely descriptive of the nature
of the debt to which priority is given. When one has incurred
a debt for wages due to workmen, clerks, or servants, that debt,
within the limits of time and amount prescribed by the act, is
entitled to priority of payment. The priority is attached to the
debt, and not to the person of the creditor ; to the claim, and not
to the claimant. The act does not enumerate classes of creditors
and confer upon them the privilege of priority in payment, but,
472 ADMINISTRATION
on the other hand, enumerates classes of debts as "the debts to
have priority."
In this case the Southern Car & Foundry Company had in-
curred certain debts for wages due to workmen, clerks, or
servants, which were earned within three months before the
date of the commencement of proceedings in bankruptcy. These
debts were exactly within the description of those to which the
bankruptcy act gives priority of payment, and they did not cease
to be within that description by their assignment to another.
The character of the debts was fixed when they were incurred,
and could not be changed by an assignment. They were pre-
cisely of one of the classes of debts which the statute says are
"debts to have priority."
The question certified is answered in the affirmative, and it
is so ordered.
In re McDAVID LUMBER CO.
190 Fed. 97
(District Court, N. D. Florida. September 25, 1911)
SHEPPARD, District Judge. This cause comes here for
consideration on petition of Wm. F. Lee for review of the ruling
of C. L. Shine, Esq., referee in bankruptcy, and involves the
question of priority of liens attaching to the lumber and other
products of a sawmill plant in due course of administration in
a court of bankruptcy.
The McDavid Lumber Company, bankrupt, was lately engaged
in manufacturing lumber and operated a large plant when pro-
ceedings in bankruptcy were begun. The company was adju-
dicated a bankrupt in June, 1910. Wm. F. Lee was employed
as bookkeeper for the company, and by his petition before the
referee sought to declare his lien on the stock of lumber and
fixtures of the company for wages due him for the month of
April and a part of May, 1910, at the rate of $115 per month.
It is disclosed by the petition that the stock of lumber, the greater
portion of which was produced during Lee's employment, com-
prised the principal assets of the company. Three months prior
to Lee's employment, to wit, on January 10, 1910, the McDavid
Lumber Company executed a chattel mortgage, based upon the
present consideration of $1, to the Hayward Export Company,
embracing all the lumber and timber of whatsoever kind which
CLAIMS HAVING PRIORITY 473
should be manufactured at the mill of said company from the
1st of January, 1910, to the 1st of January, 1911 ; this mortgage
provided that the export company should advance 80 per cent,
of the value of the output of the mill each month, and further
stipulated that the export company should be the selling agent
of the lumber company for all its product, excepting interior
stock. The advances to the extent of 80 per cent, were secured
by a mortgage based upon the whole output, and included all
the lumber and timber stored upon the yards of the company
during the existence of the mortgage.
The further point is made by Lee's petition that the mort-
gage of the export company was not recorded until the 15th of
April, 1910, 15 days after Lee's employment by the McDavid
Lumber Company; but actual notice of its existence is nowhere
negatived by the petition, although, as will later appear, notice
of the mortgage is not material in view of the determination of
the question certified to this court, Lee by his petition seeks
to have his claim for wages declared a preference over the
mortgage of the export company on the proceeds of the product
embraced in the mortgage, and that the export company which
has disposed of the lumber be required to pay his claim for
wages.
The Hayward Export Company interposed a demurrer to
Lee's petition, the first ground of which is only necessary to be
considered at this time, viz.:
" (1) The allegations of the petition show that the rights of
the Hayward Export Company under its mortgage and contract
of sale are superior to the rights of petitioner in the proceeds
of the lumber."
The referee upon the hearing before him sustained the de-
murrer, and it is this order which is certified here on petition
of Lee for review.
The contest seems to have waged so far over the priority of
the respective liens of contestants, the mortgage of the export
company, and the statutory lien of the laborer as created by
§2198, Gen. St. Florida 1906, which provides:
"That liens prior in dignity to all others accruing thereafter
shall exist in favor of bookkeepers, clerks, etc., upon the stock
and fixtures and other property of merchants and corpora-
tions. ' '
Whether the statutory lien in favor of Lee should be declared
superior to the mortgage of the Hayward Export Company,
474 ADMINISTRATION
which antedated the performance of any labor by Lee, was the
question before the referee, and was decided by him in favor of
the mortgage lien. If the question were to be settled by state
statute and without reference to the order of distribution of the
estates of bankrupts provided by the federal bankruptcy act,
the referee may have decided rightly. It v^dll be conceded that
the bankrupt act (§ 67d) recognizes liens generally in the prior-
ity precisely as the state law fixes them, when the bankruptcy
act is silent, or where by its terms priority is left for state regu-
lation. When, however, the lien of the laborer for his wages
earned within three months of his employer's bankruptcy is
given preference in the distribution of the assets of the estate,
it is immaterial whether under the state law his claim is or is
not superior to the mortgage lien. It was earnestly insisted at
the argument that the bankruptcy act (§ 64b) does no more
than provide for the order of distribution of the assets after
satisfaction has been made of valid liens recognized by § 67d.
When Congress, however, provides the order of payment and
gives preference to a certain class of claims, such as taxes, cost
of administration, and wages in limited amounts for a definite
time, such legislation can have no other effect in reality than to
create a lien in favor of the claims thus preferred. Undoubt-
edly it was intended by Congress that when property of em-
ployers should be placed in bankruptcy and beyond the reach
of those who had aided in its creation, to charge and impress
such property to the limited extent noted with a preference by
law second only to taxes and cost of administration. Those
entering into contracts with employers of labor for manufac-
tured product must contemplate the relation of the labor to the
finished product and should be held to know that, in case bank-
ruptcy overtakes the enterprise, the assets resulting from the
administration of such trust shall be distributed in the course
provided.
Nor does the adoption of this principle destroy the probity of
contracts or work greater hardship to secured creditors than
would fall unhappily to the lot of that creditor class who live
from hand to mouth, if a different construction were adopted.
The priority of laborers' claims when they are based upon pro-
ductive or operating expense of a quasi public corporation is a
salutary doctrine long established in this country predicated
upon the theory of public interest and of public benefit as well
as pecuniary advantage to the security holders; the operating
CLAIMS HAVING PRIORITY 475
expenses of such corporations are recognized by the courts as a
first lien on the property of such corporations. Burnham v.
Brown, 111 U. S. 776, 4 Sup. Ct. 675, 28 L. ed. 596 ; Southern
R. Co. V. Carnegie Steel Co., 176 U. S. 257, 20 Sup. Ct. 347, 44
L. ed. 458.
What substantial reason would justify any distinction in the
protection the law secures to the flagman of the railroad train
whose wages are preferred over the interest of the bondholder,
and the laborer in the sawmill whose handiwork is a constructive
force in the product of the plant, which not only pays the inter-
est on the mortgage, but returns the investment?
That sound legal philosophy established by numerous and
powerful decisions of the Supreme Court recognizing the prior-
ity of labor engaged in the service of quasi public corporations
because of the public convenience and necessity of continued
operation, fortunately, is being gradually and wisely extended
to the legal preservation of the rights of the laborer whose toil
produces the output which pays the interest and enhances the
value of the mortgage security. L'Hote v. Boyett, 85 Miss. 636,
38 South. 1 ; Dickinson v. Saunders, 129 Fed. 20, 63 C. C. A.
666.
It was well said by the Court of Appeals of the First Circuit,
in Dickinson v. Saunders, supra, discussing the effect of the fed-
eral bankruptcy act regulating priority:
"Turning, therefore, either to the local statute, or to what
for the federal courts is the higher authority, the bankrupt act,
the priority in favor of creditors of the class of interveners in
this case is declared as a rule of administration, not only for
quasi public corporations, but for all corporations, and in the
federal statute for corporations and individuals. ' '
It was further observed by the learned court in this instruct-
ive case that the statute of Massachusetts could not control ad-
ministration in bankruptcy in the federal court.
When the order of distribution of a bankrupt estate has been
expressly laid down by Congress that order should be observed
by the federal court in administration in bankruptcy. As said
by Collier in his admirable work on Bankruptcy ( [7th ed.]
742):
"The bankrupt act not only controls the state law in case of
absolute conflict, but by its express legislation on these priorities
excludes the state law altogether."
And again, as said by Judge Lowell, when both a state statute
476 ADMINISTRATION
and the bankrupt act gives priority to the same class of debts,
the bankrupt act supersedes the state law. Dickinson v. Lewis,
129 Fed. 20, 63 C. C. A. 666; In re Lewis (D. C.) 99 Fed. 935;
In re Erie Lbr. Co. (D. C.) 150 Fed. 823; In re Tebo (D. C.)
101 Fed. 420.
It is clear that the trust fund arising from the administration
is distinctly charged by the act in favor of wages to the extent
provided by § 64b, and, if it cannot be said to constitute tech-
nically a lien, its effect is tantamount to any claim or privilege
created by state statute. It will not be denied that, where liens
have attached before bankruptcy administration and are not dis-
solved by the act, they will be respected as criteria in the order
for distribution of the estate, except preferred claims under the
bankruptcy act which unquestionably supersedes the state law.
In re Laird, 109 Fed. 557, 48 C. C. A. 538. It should be the
policy of the law and the primary duty of society to protect the
wages of the laborer in every contingency. Congress has indi-
cated its purpose, and courts should declare the law.^"
/
SECTION III ,,,
THE TRUSTEE 6^^ >
A. Appointment 5^ '
In re EAGLES
99 Fed. 695
(District Court, E. D. North Carolina. February 16, 1900)
PURNELL, District Judge. The referee certifies for review
the following record:
"I, C. C. Fagan, one of the referees in bankruptcy of said
court, do hereby certify that the first meeting of the creditors
herein was held in Tarboro, N. C, on February 12, 1900, at
which claims were proven, and the eleqtion of a trustee entered
upon; that nine (9) creditors, whose proven claims amounted
to two thousand and eighty-four and '^Koo dollars, voted for
Stamps Howard, Esq., as trustee, and twenty-six (26) creditors,
whose proven claims amounted to two thousand and eight hun-
dred and twenty-five and ^%oo dollars, voted for Henry Gillaim,
17 — See the discussion of the sub-
ject in 78 Cent. L. Jour. 313.
APPOINTMENT OF TRUSTEE 477
Esq., as trustee ; that questions arose as to the right of Howard
& Co. and George Howard to vote, in the selection of the trustee,
$712 due the former, and $1,000 due the latter, both of which
claims are reported and proven as secured by the assignment of
collaterals of bankrupts, fully set forth in schedule; that ques-
tion also arose as to who was entitled to vote a certain indebt-
edness duly proven by B. F. Eagles, and due him by Eagles and
Crisp, bankrupts, for, $2,886,36, and which is hypothecated with
George Howard as collateral security for the sum of one thou-
sand dollars, the amount due and secured to George Howard as
above. Howard & Co. and George Howard claimed the right to
vote their debts of $712 and $1,000 in the election of a trustee,
and offered to vote the same for Stamps Howard, Esq. The
referee was of opinion that the said creditors, being secured by
collaterals, were not entitled to participate in the selection of a
trustee, unless they first surrendered their securities. George
Howard claimed the right to vote the debt of $2,886.36 due to
and proven by B. F. Eagles, and deposited with him as collateral
security for $1,000 due by bankrupts as aforesaid, and offered
to vote the said indebtedness for Stamps Howard as trustee. B.
F. Eagles, to whom the debt is due, claims the right to vote said
indebtedness, and offers to vote the same for Henry Gillaim, as
trustee. The referee was of opinion that B. F. Eagles was en-
titled to vote said indebtedness in the selection of a trustee, and
the same was voted for Henry Gillaim. The referee declared
Henry Gillaim duly elected trustee, and fixed his bond at the
sum of $2,500. Attorneys for the said Howard & Co. and George
Howard object to the above rulings and decision of the referee,
and ask that the same be certified to the judge of the district
court for review."
It would not be inappropriate for referees to follow the fa-
miliar practice of "explaining the object of the meeting" to
creditors and attorneys not familiar with the practice in the
courts of bankruptcy. Many questions similar to those presented
may thus be solved, thus saving time, frequently so essential in
a proper adjustment of estates. The meeting is for business, and
must be held in strict accordance with the notice, at the time and
place specified, not at some other time, sooner or later, or an-
other place, though near by. Adjournments may be had if the
business requires it, but all adjournments are the same meeting,
in contemplation of law. If no creditor appears, the meeting is
as effectual as if they were present or represented. The court,
478 ADMINISTRATION
judge, or referee is not authorized or required to wait for or
"count a quorum." If, in such case, the schedules disclose no
assets, the court may order that no trustee be appointed. Rule
15.
The referee should be punctually present at the time and place
specified in the notice. He or the judge presides, and his duties
are judicial. He does not otherwise participate. The bankrupt
is required and should be actually present at the first meeting.
It is a creditors' meeting, and they (the referee and bankrupt)
are there to assist the creditors, — the first as an officer of the
law, and the other to aid him in so doing. Thus aided, the ref-
eree should, in most cases, be able to pass upon all claims which
have been or may be presented at the meeting. Bankr. Act,
§ 55c. Having thus passed upon the claims presented, a cred-
itor to participate in and vote at such meeting must own an un-
secured claim, provable in bankruptcy, and must not only have
roved such claim, but had it allowed. Id. §§ 56a, 56b; In re
ill. Fed. Cas. No. 6,481; In re Altenheim, Id. 268. Secured
creditors cannot vote at such meetings, unless their claims exceed
the amount of the security held by them, and then only for such
excess as shall be allowed by the court. Bankr. Act, § 56b. An
attorney, agent, or proxy can represent and vote for such cred-
itors, but, before being permitted to do so, should be required to
produce and file written authority from the creditor, which
should be filed by the referee as a part of his record. In re
Sugenheimer (D. C.) 91 Fed. 744. Creditors holding claims
which are secured or have priority are not, in respect to such
claims, entitled to vote. To do so, such security or priority
must be surrendered. In re Saunders, Fed. Cas. No. 12,371;
Bankr. Act, §57g; In re Conhaim (D. C.) 97 Fed. 924. This
provision illustrates the homely maxim, of Heywood, hoary with
the age of over four centuries, that one cannot eat his cake and
have his cake too. The creditor must decide. He can make a
surrender, thus becoming an unsecured creditor, and participate
with other creditors in the management of the estate, or he can
stand on his security or priority. He cannot do both. He can-
not run with the hare and hold with the hounds, as boys who
run rabbits would express it, quoting a sixteenth century au-
thority.
Assisted as indicated by the schedules, the bankrupt, and
others interested, creditors present, it would seem the court could
pass on all or most of the claims without difficulty or delay. If
APPOINTMENT OF TRUSTEE 479
a particular claim is objected to, the question should be heard as
soon as feasible, and, if the court (judge or referee) is not satis-
fied with the weight of evidence, the hearing may be postponed,
and heard at some subsequent time. The act of 1867 provided
expressly for such postponement, and the act of 1898 does not
prohibit, but, by lodging a large discretion in the court, war-
rants and contemplates it. On a decision, the allowance or rejec-
tion of a claim of $500 or over, both may be reviewed by the
court of appeals. Bankr. Act, § 25, subd. 3. The effect of allow-
ing or postponing the hearing on a particular claim affects only
the creditor's right to vote at the first meeting of creditors. If
made to appear the result would be changed by such vote or
votes, the judge or referee may set aside the result, and order a
new vote to be taken. When it appears the right to vote would
not affect the business of the estate, the proceedings would not
be disturbed to allow a creditor to exercise the right to vote
when it would be barren of results. A creditor who has received
a preference must surrender such preference before he can par-
ticipate in a meeting of creditors. By the adjudication, the
estate of the bankrupt is in the custody of the court. If the
preference is by the assignment of securities, the creditor can-
not realize on such securities, or release the debtor of the bank-
rupt, except through the bankrupt court. See In re Cobb (D.
C.) 96 Fed. 821, and authorities cited. Such creditor should
prove and file his claim, and his preference, if valid, will be
protected by the court, but he cannot participate in meetings as
an unsecured creditor. In a proceeding like the one at bar, the
creditors of the partnership elect the trustee, but an individual
creditor of one of the partners cannot vote for a trustee of the
partnership. Bankr. Act, § 5b.
Applying the foregoing principles, which are thus fully dis-/
cussed,49Life§_^;^efit^f£efereeSj to the case at bar, the rulings'
of the referee are affirmed. The claim of $712 due Howard &
Co., and that of $1,000 due George Howard, "reported and
proven as secured by the assignment of collaterals of bankrupt,
fully set forth in schedule," are not such claims as would entitle
the creditor holding such claim to participate in the first meet-
ing of creditors or vote for a trustee.
The question propounded, but not presented in such a way as
to be properly passed upon, as to who is entitled to vote the
claim of B. F. Eagles, due him by Eagles and Crisp, bankrupts,
for $2,886.36, may be settled by an answer to the question, was
480 ADMINISTRATION
such claim allowed? If not, no one can vote it. B. F. Eagles
was a member of the bankrupt firm, and schedules his individual
property. § 5ff of the bankrupt act provides :
* ' The court may permit the proof of the claim of the partner-
ship estate against the individual estates, and vice versa, and
may marshal the assets of the partnership estate and individual
estates so as to prevent preferences and secure the equitable dis-
tribution of the property of the several estates. ' '
The schedules disclose the fact that the $1,000 debt due George
Howard by B. F, Eagles, partner, is secured by the hypotheca-
tion of a note of A. H. Crisp (not of the bankrupt firm), which
note is secured by real-estate mortgage and other collaterals.
Other questions as to this claim may arise hereafter, which are
not now presented for review, as contemplated by the bankrupt
act, and even the question of who is entitled to prove and vote
the claim is not so presented. Howard cannot prove or vote the
claim, for he does not own it. It is only assigned as collateral
security. If, when reduced to money, the proceeds are in ex-
cess of his claim, which he cannot vote, the excess would, in a
marshaling of assets, go to the estate, and, if not sufficient to
satisfy his claim, then he would be entitled to prove, as an unse-
cured creditor, any excess. How this may be cannot now be
determined. B. F. Eagles cannot prove the claim, because he does
not own it. Aliunde the bankrupt proceedings, he would own
an equitable interest, but has assigned the legal title to the
claim. Nor does the report of the referee and the schedules
correspond in some essential particulars as to this claim. Only
the right to prove and vote the claim, which is not properly
presented, is now considered, and the many questions which may
arise are not intended to be passed upon. It will be in apt time
to adjudicate such questions should they arise in the course of
the administration of the estates of the firm and the partners.
It is impossible to say from the report which claims are in-
cluded in the vote for trustee. If the claims not entitled to vote
were included in the vote for Mr. Gillaim or Mr. Howard, they
must be eliminated, and_tlifi,one who thus has a majority in num-
ber and amount of the claims proved and allowed will be de-
clared trustee . Such trustee will at once file the bond fixed by
the creditors, and proceed with the administration of the estate
according to the statute.
APPOINTMENT OF TRUSTEE 481
In re SYRACUSE PAPER & PULP CO. 7 (r^^^^^Ju-^'^'^
164 Fed. 275 ^.^ ^}^^,
(District Court, N. D. New York. October 5, 1908) | jjC^
RAY, District Judge. The petition in bankruptcy was filed in -j^ "^
this ease June 17, 1908, not Au^st 17, 1908, as stated in the /^ ' fj^ju
petition of review. On the same day, on all the papers and a full ^fsff-"*^ .1
hearing and examination of Geo. W. DriscoU as to his connection r^^.
with and relations to the alleged bankrupt, this court appointed '*' '' Aitr*
Frank P. Hakes, of Cortland, N. Y., a person selected by the ^
court because of his known integrity, long business experience, ...| ^
education, and good judgment, and entire disassociation with |'
said alleged bankrupt and its officers, and said Driscoll, receivers "
of the estate of said paper and pulp company. I then was and
still am of the opinion that some one fully acquainted with the
operations and business of the company should be associated in
the administration and winding up of its affairs. Soon there-
after, and early in July, an order was made for the examination
of the officers of the alleged bankrupt and a full and complete
inspection of its books and papers, to commence, as my recollec-
tion serves, July 20, 1908. This order was made on application
of Mr, Stoltz, who represented certain creditors, including those,
or some of those, who now object. This was done to enable a
full discovery, so far as practicable, in advance of the election of
a trustee. This afforded every opportunity to ascertain the real
creditors of the bankrupt, etc. All the claims voted on and ques-
tioned here were included in the schedules and appeared on the
books of the company. If there was valid objection to these
claims in question here, or any one of them, it would have been
easy to prepare in advance, or on the day of the first meeting
of creditors, properly verified objections to the claims, which
could have been filed on that day.
The first meeting of creditors was duly called and held on the
5th and 6th days of August, 1908. At that meeting there was
a lively contest over the appointment of trustees. Three tickets
were in the field. One ticket was for the appointment of three
trustees, and the others for the appointment of one trustee. The
minutes of the meeting show that some informal proofs were
rejected ; but no question is raised as to the propriety and legal-
ity of such action. One hundred and sixty-six votes were cast
for each ticket, and Frank P. Hakes of Cortland, Frank M. Bosr
H. & A- BanTjruptcy— 31
482 ADMINISTRATION
worth, of Watertown, and George W. DriscoU, of Syracuse, on
one ticket, received 85 votes each, representing $215,380.04 of the
proved and allowed claims ; William A. McKenzie, Jr., on another
ticket, received 6 votes, representing $12,806.08; and Geo. D.
Chapman, on another ticket, received 75 votes, representing $112,-
173.52 of such claims. It is seen that Hakes, Bosworth, and Dris-
coU had a clear majority of 4 over all and a plurality of 10 over
Chapman. The intelligence and general character and ability
of Mr. Driscoll cannot be questioned. Hakes and Bosworth are
pre-eminently fit for the place; Bosworth being skilled in the
business he is to care for and settle, and Hakes having proved
his ability and integrity while acting as receiver. From the fact
that Heath and Stoltz represented creditors, or were able to
control the votes of creditors, to the number of 75, it is evident
they had been working up the election of Chapman. Mr. Heath,
or Mr. Stoltz, or both, orally objected to the following claims:
Hannawa Falls Water Power Co., $7,299, on the ground it was
a claim against other companies, or one of two other compa-
nies. Commercial National Bank, $6,802.37, on ground it had,
with knowledge of insolvency, received a preferential payment
within four months. National Bank of Auburn, $25,159.69, on
same grounds. Salt Springs National Bank, $7,563.69, on same
ground. Salt Springs National Bank, $9,139.50, same ground.
Jeiferson County National Bank, $15,523, same ground. Utica
Trust & Deposit Company, $3,976.19, same ground. State Bank
of Syracuse, $77,181.15, same ground. Skaneateles Railway Com-
pany, $1,920, on ground services were rendered to Rose & Moses
Pulp & Paper Company, Rose & Moses Paper & Pulp Company,
$36,536.02, on ground it is not a provable claim, and bankrupt
not indebted to it in any sum whatever. Pottsdam Paper Mills,
$3,941.46; George W. Phelps, $1,792.25; George W, Phelps,
$575.75; G, Wittner, $8,100,97; Battle Island Paper Company,
$12,585,99; John C, Lutz, $2,840 — and also numerous small
claims, on the general ground, in nearly every case, that it was
not a provable claim, and that alleged bankrupt was not in-
debted to the claimant in any sum, and frequently was added
the objection that a preference had been paid and received with
knowledge of insolvency. These general oral objections, not
reduced to writing, or signed by any one, or verified, were made
to substantially every claim voted in favor of Hakes, Bosworth,
and Driscoll.
The objections having been made and overruled, no offer hav-
APPOINTMENT OF TRUSTEE 483
ing been made to substantiate the objections by proof, and noth-
ing appearing tending to impeach the validity of the claims, the
referee announced that the election of a trustee was in order.
Mr. Heath then objected to the election of a trustee on the ground
that he had a right to have the claims to which he had objected,
and where his objections were overruled, heard upon the evi-
dence, and requested an adjournment for that purpose. This
was an objection to proceeding to the election of a trustee with-
out an adjournment. No evidence was offered to sustain the
objections, and there was no claim made that evidence, if any,
to sustain the objections was not then at hand. The referee ruled
that to try out the objections would take more time than was
at his disposal, and overruled the objection. This was equivalent
to denying an adjournment for the purpose of trying the various
and numerous objections on the merits. It was evident to the
referee, and is evident to the court, that to have taken time to
try out the question of the validity of these objections would have
required weeks of time. The objections were not verified or re-
duced to writing. Evidently they were made at random and for
purposes of delay. It was essential to the due administration of
the estate that it proceed with reasonable diligence. The oppor-
tunity given for the examination of the officers and books of
the company had developed nothing, so far as appears, against
these claims. If so, that record could have been produced as a
basis or ground for the objections. The claims, so far as al-
lowed and voted upon, were regular upon their face and appar-
ently valid. The claims stood proved, and were entitled to
allowance, unless met and overthrown by proof. Whitney v.
Dresser, 200 U. S. 532, 26 Sup. Ct. 316, 50 L. ed. 584, and cases
there cited.
But the allowance of a claim is not final; for if, at a later
time, it is desired to open it and try out its validity, it can be
done. And it is the duty of the referee and judge to afford such
a rehearing on a prima facie case. True, the trustee or trustees
represent the creditors, and this reopening of a claim is done
by the trustees; but if a creditor, one or more, makes a prima
facie case, and asks the trustee to take measures for the opening
of a claim, and he refuses, an appeal to the referee or court would
effect the desired result, and perhaps result in the removal of the
trustee. The referee, in the absence of verified objections, and in
the absence of any offer of evidence to sustain the oral objec-
tions made, overruled the objections in most instances and pro-
484 ADMINISTRATION
jceeded to obey the statute, which is imperative that the trustee
/shall be elected or appointed by the creditors at their first meet-
/ ing. Bankr. Act, July 1, 1898, c. 541, § 44, 30 Stat. 557 (U. S.
Comp. St. 1901, p. 3438) :
* ' The creditors of a bankrupt shall, at their first meeting after
the adjudication * * * appoint one trustee or three trustees
of such estate. If the creditors do not appoint a trustee or
trustees as herein provided, the court shall do so. ' '
I do not doubt that it is competent for the [referee] to adjourn
this first meeting of creditors for a reasonable time, and from
time to time when necessary, and in a proper case it is his duty
so to do. But when it is apparent, as it was here, that certain
attorneys in their own interest take it upon themselves to orally
object to all, or substantially all, claims presented which may be
voted against their nominee for trustee, and fail to file written
and verified objections, or to offer then and there some evidence
tending to support those made, and it is apparent that to try
out the validity of such unsupported oral objections would un-
duly postpone the election of a trustee or trustees, it is the duty
of the referee to obey the spirit and letter of the law and pro-
ceed with the election of a trustee. Any other course in such a
case should not be tolerated. It is quite true that the creditors
are to elect the trustee ; but it is also true that at the first meet-
ing they are to perform this duty, and that they should come
prepared to act with reasonable expedition, and that these matters
should not be dragged along on mere oral objections to verified
claims apparently valid, and which are conceded by the bankrupt
to be valid. And verified claims, presumptively valid, and which
are entitled to probative force, which in effect prove themselves,
should not be held up or denied allowance or participation in
the election of trustees on mere oral objections in any case, un-
less some written evidence is placed before the court tending to
impeach their validity, or some oral evidence is offered at the
time having that tendency, or it is made to appear that such
evidence exists, but cannot be then obtained and presented.
As the vote for trustee was being taken, objections were made
to a vote being allowed on certain claims. The most of these
objections, if not all, were clearly frivolous. A vote on the claim
of Mr. Lattemer was objected to on the ground that the claim-
ant was an employe of the bankrupt company, and therefore not
a proper person to vote for the election of a trustee. No such dis-
ability is imposed by the bankruptcy act or by common sense. It
APPOINTMENT OF TRUSTEE 485
might be that two-thirds of the creditors of the bankrupt com-
pany were employes of the concern. Are they to be debarred
from voting on the suspicion that they may have a friendly
feeling for the company which has given them employment ? A
vote on the claims of John C. Lutz was objected to on the ground
that he was a stockholder in the corporation, and not a proper
person to unite in the selection of a trustee. A vote on the
claims of G. Wittner were objected to on the same ground, with
the addition that he was also a director. The law imposes no
such disability on the creditor of such a corporation who hap-
pens to be a stockholder or director therein, and there is no
valid reason why he should be debarred from voting for trustee.
* * * Cases may arise where the directors of a bankrupt corpo-
ration, also creditors thereof, may seek to control the election of
the trustee in the interest of the bankrupt itself, and in opposition
to the interests of the general creditors. In such a case I do
not doubt that the referee or judge has the power to set aside
such an election, if made ; but it would be on other grounds than
that the directors were not entitled to vote for the appointment
of the trustee. In this case there was no combination of di-
rectors ; no attempt to elect trustees in the interest of the bank-
rupt corporation. As stated, two of those elected and confirmed
by the referee are men of the highest probity and business abil-
ity, and entirely disinterested; and the inclusion of Driscoll,
familiar with all the books and affairs of the company, was wise
and proper. Should he attempt to hide or cover the transac-
tions, or balk proper legal proceedings, it would be ground of
removal, and the referee should not hesitate to report the facts,
and this court would speedily remove him.
It was suggested on the argument that there is a possibility
that it will become the duty of the trustees to bring action
against some or all the directors, including Driscoll, and that he,
as trustee, cannot sue himself as director, or as an individual.
There will be ample opportunity to cross that bridge when
reached, if it ever is; but I am of opinion that a trustee as such
may be party complainant or plaintiff as such, and also defendant
as an individual. In this case Hakes and Bosworth may prose-
cute all necessary actions, making Driscoll as director or person-
ally, or even as trustee, a party defendant, stating the necessity
for such action. 1 Foster's Fed. Pr. p. 148, §42; Harding v.
Handy,ll Wheat. 103, 6 L. ed. 429; Wisner v. Bamett, 4 Wash.
486 ADMINISTRATION
C. C. 631, 642, Fed. Cas. No. 17,914; Barry v. Missouri, etc.
(C. C.) 27 Fed. 1, per Wallace, J.
The creditors and all of them are at liberty to examine the
directors, including Driseoll, and if it shall develop that he is an
improper person to act as trustee, or that his presence as such
interferes with the due and proper administration of the estate,
he can be removed. No self-respecting court would hesitate a
moment to take such action. There was a clear majority in
number and amount voting for Hakes, Bosworth, and Driseoll.
I have examined all the cases cited, and find nothing that would
require, or even justify, the setting aside of their appointment.
• « «
The order of the referee, affirming the action of the creditors,
is therefore approved and affirmed.
.\
^^^
^.^* B. Property Acquired
1. AS OF WHAT TIME
JOHNSON V. COLLIER
^
y/ 222 U. S. 538, 56 L. ed. 306, 32 Sup. Ct. 104
^ (United States Supreme Court. January 9, 1912)
M. B. Johnson, as executor, recovered judgment against B. T.
Collier, in the city court of Gadsden, Alabama. Execution
thereon was levied July 20, 1906, on certain personal property.
Under a provision of the Alabama statute, Collier immediately
filed with the sheriff a claim of exemption. On the same day he
filed, in the proper District Court of the United States, a volun-
tary petition in bankruptcy, including this property in his
schedule of assets. Notwithstanding the claim of exemption,
the sheriff sold the property at public outcry on July 30, 1906.
Thereafter, on a date not shown by the record. Collier was
adjudicated a bankrupt. On August 8, 1906, before a trustee
was elected, he brought suit against both Johnson and the sheriff
for damages, on the theory that the sale of the property after
the filing of the claim of exemption made them trespassers ah
initio. The defendants filed a plea, in which they set up the
pendency of the bankruptcy proceedings, and alleged that Col-
lier had no title to the cause of action, which was in gremio legis
until the election of the trustee, and for that reason he could
not maintain a suit for damages occasioned by the unlawful sale
AS OF WHAT TIME 467
of property included in the schedule of assets. A demurrer to
this plea was sustained. The jury found a verdict in favor of
Collier, which the trial court refused to set aside. This ruling
was affirmed, and the case is here on writ of error from that
judgment of the Supreme Court of Alabama.
Mr. Justice LAMAR, after making the foregoing statement,
delivered the opinion of the court:
The trustee, with the approval of the court, may prosecute
any suit commenced by the bankrupt prior to the adjudication.
(§ lie.) But the statute is otherwise silent as to the right of
the bankrupt himself to begin a suit in the time which intervenes
between the filing of the petition and the election of the trustee.
There is a conflict in the conclusions reached in the few cases
dealing with this question. Rand v. Sage, 94 Minn. 344, 102
N. W. 864; Rand v. Iowa C. R. Co., 186 N. Y. 58, 116 Am. St.
Rep. 530, 78 N. E. 574, 9 A. & E. Ann. Cas. 542; Gordon v.
Mechanics' & T. Ins. Co., 120 La. 444, 15 L. R. A. (N. S.) 827,
124 Am. St. Rep. 434, 45 So. 384, 14 A. & E. Ann. Cas. 886.
While for many purposes the filing of the petition operates in
the nature of an attachment upon choses in action and other
property of the bankrupt, yet his title is not thereby divested.
He is still the owner, though holding in trust until the appoint-
ment and qualification of the trustee, who thereupon becomes
"vested by operation of law with the title of the bankrupt" as
of the date of adjudication. (§70.)
Until such election the bankrupt has title, — defeasible, but
sufficient to authorize the institution and maintenance of a suit
on any cause of action otherwise possessed by him. It is to the
interest of all concerned that this should be so. There must
always some time elapse between the filing of the petition and
the meeting of the creditors. During that period it may fre-
quently be important that action should be commenced, attach-
ments and garnishments issued, and proceedings taken to recover
what would be lost if it were necessary to wait until the trustee
was elected. The institution of such suit will result in no harm
to the estate. For if the trustee prefers to begin a new action
in the same or another court, in his own name, the one previously
brought can be abated. If, however, he is of opinion that it
would be to the benefit of the creditors, he may intervene in the
suit commenced by the bankrupt, and avail himself of rights
488 ADMINISTRATION
and priorities thereby acquired. Thatcher v. Rockwell, 105 U. S.
469, 26 L. ed. 950.
If, because of the disproportionate expense, or uncertainty as
to the result, the trustee neither sues nor intervenes, there is
no reason why the bankrupt himself should not continue the
litigation. He has an interest in making the dividend for cred-
itors as large as possible, and in some states the more direct
interest of creating a fund which may be set apart to him as an
exemption. If the trustee will not sue and the bankrupt cannot
sue, it might result in the bankrupt's debtor being discharged
of an actual liability. The statute indicates no such purpose,
and if money or property is finally recovered, it will be for the
benefit of the estate. Nor is there any merit in the suggestion
that this might involve a liability to pay both the bankrupt and
the trustee. The defendant in any such suit can, by order of
the bankrupt court, be amply protected against any danger of
being made to pay twice. Rand v. Iowa C. R. Co., 186 N. Y. 58,
116 Am. St. Rep. 530, 78 N. E. 574, 9 A. & E. Ann. Cas. 542 ;
Southern Exp. Co. v. Connor, 49 Ga. 415,
i! There was no error in holding that the bankrupt had title to
the cause of action and could institute and maintain suit
thereon.
AflSrmed.^
STATE BANK OF CHICAGO v. COX
143 Fed. 91, 74 C. C. A, 285
(Circuit Court of Appeals, Seventh Circuit, January 2, 1906)
This is. a suit in assumpsit, by the trustee in bankruptcy, to
recover assets of the bankrupt which were appropriated by State
1 — "The complainant's counsel estate until the trustee was ap-
agrees that from the time of the pointed. It could not order a sale;
adjudication until the appointment it could not permit a delivery of
of a trustee the bankrupt is civilly property admitted not to belong to
dead, and that nothing that takes the bankrupt; it could not permit
place in the meantime can deprive a business to be carried on; the
the trustee of his right to elect adjudication would strike the estate
whether to accept any asset of the with a complete paralysis until nec-
bankrupt or not. If that doctrine essary weeks or the usual months
were true, the court would have no had passed before the appointment
power to authorize any action what- of a trustee. There is nothing in
ever in respect to the assets of the the Bankruptcy Act which author-
AS OF WHAT TIME 48»
Bank of Chicago, plaintiff in error, through attachment and
garnishee process, pending the proceedings in bankruptcy; and
the writ of error is from the judgment, upon verdict, for $2,-
692.36 against the bank. The bankruptcy proceedings were in
the District Court of the United States for the Western District
of New York, against Muskoka Lumber Company, a New York
corporation, upon petition for involuntary bankruptcy filed
August 20, 1901; and adjudication as a bankrupt was entered
May 1, 1902. On August 21, 1901, the plaintiff in error com-
menced attachment proceedings against the bankrupt, in the
Circuit Court of Cook county. 111., under which property of the
bankrupt was seized and certain of its creditors were served
with garnishee process. The John S. Owen Lumber Company
followed with another attachment, through the same attorneys,
returnable at the same term, and thus became a prorating attach-
ment creditor under the Illinois statute. § 37, c. 11, 1 Starr &
C. Ann. St. 1896 (2d ed.). Through the attachment on the part
of the plaintiff in error the sheriff collected $286.13 and the
garnishees paid $2,014.52. Of this aggregate it appears that
the share actually received was $1,902.78; the remainder being
costs and pro rata share of the other attaching creditor. The
trustee in bankruptcy brought the present action, against the
plaintiff in error alone, May 11, 1903, no claim having been filed
or appearance entered on its part in the bankruptcy proceed-
ings, and various questions of pleading were raised, which in-
volve no substantial controversy not otherwise presented for
review, aside from jurisdictional features which are referred
to in the opinion. Upon issues joined, with the substantial
facts undisputed, the case was tried and resulted in a verdict,
directed by the court, against the plaintiff in error for the entire
amount so realized and interest, without deduction for the share
of the prorating attachment.
SEAMAN, Circuit Judge (after stating the facts and dispos-
ing of matter of jurisdiction of the court below). * * *
The questions arise for review therefore: (1) Whether the
trustee in bankruptcy establishes a right of recovery; and, if
so (2) whether the true measure of damages was awarded. As
izes such a conclusion." Plant v.. Acme Harvester Co. v. Beekman
Gorham Mfg. Co., 174 Fed. 852, 858./ Lumber Co., 222 U. S. 300.
See In re Pease, 4 Am. B. R. 578 j
490 ADMINISTRATION
the material facts are undisputed, the inquiry is within narrow
compass, if not otherwise free from difficulty.
1. Upon the first question the contentions are twofold: (1)
That under the present bankruptcy act (Act July 1, 1898, c.
541, §70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]), the
trustee is vested with title to the property of the bankrupt, "as
of the date he was adjudged a bankrupt," so that he cannot re-
cover for property theretofore attached and sold; and (2) that
in any view, if such attaching creditor obtained no greater per-
centage than other creditors of like class, the proceeds were not
recoverable as a preference. The attachment processes under
consideration were instituted in Illinois on the day following
the commencement of the bankruptcy proceedings in New York,
but both attachment and appropriation of the proceeds were
prior to the adjudication of bankruptcy, and the first-men-
tioned proposition is thus fairly involved.
The general purposes and scope of bankruptcy enactments, to
take and administer all of the assets of the bankrupt for pro rata
distribution to the unsecured creditors, is well recognized. In
conformity with this view the provisions of the present act, alike
with those of the former acts, are uniform — from § 1, cl. 10 (30
Stat. 544— [U. S. Comp. St. 1901, p. 3418]), to and including
§ 70, cl. 5, in fixing the date when the petition was filed as the
time bankruptcy jurisdiction is established over the property
then possessed by the bankrupt, as the date from which the
sequestration of property becomes operative and with reference
to which the validity or invalidity of the various transactions
affecting the estate must be ascertained. As well remarked by
Mr. Chief Justice Fuller, speaking for the Supreme Court, in
Mueller v. Nugent, 184 U. S. 1, 14, 22 Sup. Ct. 269, 46 L. ed. 405 :
"It is as true of the present law as it was of that of 1867 that
the fiOling of the petition is a mveat to all the world, and in
effect an attachment and injunction (Bank v. Sherman, 101 U.
S. 403, 25 L. ed. 866), and on adjudication title to the bank-
rupt's property became vested in the trustee (§§70, 21e, 30
Stat. 565, 52 [U. S. Comp. St. 1901, pp. 3451, 3430]), with
actual or constructive possession, and placed in the custody of
the bankruptcy court."
In this court the view is clearly expressed in the opinion by
Judge Jenkins, In re Rodgers, 60 C. C. A. 567, 578, 125 Fed.
169:
"The filing of the petition, followed by seizure and by ad-
AS OF WHAT TIME 491
judication in bankruptcy, is a seizure of the property by the
law for the benefit of creditors, and an appropriation of it to
the payment of the debts of the bankrupt. It is a seizure of
the property by legal process, equal in rank to and of the same
force and effect as by execution or attachment."
In other words, it is the established doctrine that bankruptcy!
proceedings are in rem, and when commenced all of the property
tHen held by the bankrupt or for his use (aside from exemp-
tions) is subjected to the jurisdiction of the bankruptcy court,
and that, when bankruptcy is adjudicated, the sequestration ^
reaches all such property at least, and becomes operative from
the institution of proceedings, as "a caveat to all the world,"
preventing interference by attachments or other means in deroj
gation of the interests of the estate. In re Pekin Plow Co., 50
C. C. A. 257, 259, 112 Fed. 308 ; Chesapeake Shoe Co. v. Seldner,
58 C. C. A. 261, 264, 122 Fed. 593; Loveland's Bankruptcy (2d
ed.) 366; Collier on Bankruptcy (5th ed.) 553. While title
rests in the bankrupt up to adjudication, and in form until a
trustee qualifies, it is subject to the pending sequestration, and
no rights can be acquired thereunder which are not equally
amenable. The formal title of the bankrupt to the estate passes
to the trustee (§ 70a) "by operation of law" as of the date of
adjudication, but the trustee is vested as well under subdivisions
(4) and (5) with property transferred in fraud of creditors,
and "property which prior to the filing of the petition" the
bankrupt "could by any means have transferred" or which
might have been levied upon and sold. Thus the narrow con-
struction of the first-mentioned provision, which is sought for
escape from liability for the plain violation of the act through
the seizure in question, not only ignores these succeeding and
comprehensive clauses, but it would nullify the terms and entire
policy of the act for the protection of creditors against spolia-
tion of estates subject to bankruptcy proceedings.
We are clearly of opinion that such rights of action, arising
out of transactions prohibited by the act, vest in and are en-
forceable by the trustee, unaffected by the date when the legal
title passes from the bankrupt to the trustee. In re Pekin Plow
Co., 50 C. C. A. 257, 259, 112 Fed. 308 ; In re Garcewich, 53
C. C. A. 510, 513, 115 Fed. 87; In re Breslauer (D. C), 121 Fed.
910, 914; Chesapeake Shoe Co. v. Seldner, 58 C. C. A. 261, 265,
122 Fed. 593. The question is not raised in Clarke v. Larre-
492 ADMINISTRATION
more, 188 U. S. 486, 23 Sup. Ct. 363, 47 L. ed. 555, but the
recovery affirmed in that ease could rest on no other view.
In reference to the further contention that the proceeds of
the attachment and sale gave the plaintiff in error no per-
centage upon the indebtedness to it beyond that received by
other creditors, and thus no preference in fact, it is sufficient
to remark that the alleged cause of action does not rest upon
the provision relating to preferences, but upon the prohibited
seizure and appropriation of property of the estate vested in
the court of bankruptcy for administration. Whether the
amount realized was more or less than the percentage which
might otherwise have been awarded the creditor cannot enter
into consideration.2
'ijr "k ^- ^I^^S OF PROPERTY
5*^ y^t In re COFFIN
r -'\k 152 Fed. 381, 81 C. C. A. 507
,M\, ««. J Circuit Court of Appeals, Second Circuit. February, 26, 1907)
f' This cause comes here upon petition to review an order of
the District Court, District of Connecticut, enjoining the bank-
rupt from making any conveyances of certain real estate in
western states, standing in his name, and directing him to turn
over certain drafts and cash to the trustee in bankruptcy.
LACOMBE, Circuit Judge (after stating the facts). In 1890 a
Nebraska corporation, the Real Estate & Live Stock Association,
of which the bankrupt and his wife were stockholders, being fi-
nancially embarrassed, sought a loan from its stockholders. The
stockholders advanced $50,000 ($18.75 per share of their re-
spective holdings), and took as security a mortgage upon nu-
merous parcels of real estate in Nebraska and Wyoming. The
mortgagee named in the instrument was one Alonzo Clark as
trustee. The money not being paid, Clark brought suit in fore-
closure, and under proper decree the real estate in Nebraska
was sold and bought in by him and conveyance thereof made to
2 — That part of the opinion deal- the judgment was reversed and new
ing with the second question is trial directed.
omitted. Because of the damages See Hiscock v. Varick Bank, 206
having been measured improperly U. S. 28, 51 L. ed. 945.
KINDS OP PROPERTY 493
him by the ''master commissioner under foreclosure proceed-
ings. ' ' The real estate in Wyoming was bought in by Coffin. In
November, 1900, Clark conveyed all the real estate to Coffin,
who thereupon undertook to sell and dispose of the same and
to distribute the proceeds ratably to the beneficiaries, for whom
he was acting as trustee. Upon the sale of one parcel in Ne-
braska, the prospective purchasers questioned Coffin's title to
the lands. Thereupon each of the parties interested and the
association executed quitclaim deeds to Coffin of their respective
interests in all said lands both in Nebraska and Wyoming.
Moreover, a friendly suit was brought in Nebraska by Coffin
against the association and all the other parties in interest to
quiet the title, and decree was entered therein June 2, 1902,
declaring that the title of Coffin in and to said lands was abso-
lute as against any of the parties defendant. On or prior to
that date the quitclaim deeds were all filed.
Subsequent to June 2, 1902, Coffin sold and conveyed from
time to time portions of said real estate in both states, and re-
ceived in payment therefor certain amounts of cash, which were
deposited with his personal account in a bank in Middletown,
and certain notes and mortgages which were taken in his in-
dividual name for part payment of such sales. From the
amounts so received he paid between July 30 and October 30,
1902, to the parties who had advanced the funds to the associa-
tion 30 per cent of the amount so loaned or advanced by them,
together with 8 per cent interest thereon. Part of these pay-
ments were made in cash and part by the transfer to them of
notes secured by mortgages received in part pajrment for the
lands so sold. Subsequently to these payments there had accu-
mulated a large sum over and above disbursements from sales
of the land in question, which had been deposited in his bank
account. On November 14, 1903, he drew his entire deposit
($4,800) from the bank, took $1,000 in cash which he kept in a
drawer at his office, and added to it a draft of $1,915.86 which
he had received from his agent in the West as proceeds of the
sale of part of said lands, and bought a draft on New York to
the order of himself as trustee of $7,715.86, This draft and
some others sent from the West by said agent have come into
the possession of the trustee in bankruptcy. On December 2,
1903, Coffin was adjudicated a bankrupt on his own petition.
Various technical matters have been eliminated during the
494 ADMINISTRATION
argument, and the single question is presented whether the sev-
eral parcels of real estate yet unsold prior to December 2, 1903,
were held by Coffin in trust for the beneficiaries, and therefore
did not pass to his trustee in bankruptcy, or whether they were
a part of his individual estate to be disposed of by the trustee
for the benefit of his creditors. That question may appropriately
be answered by this court. The bankrupt and the trustee (rep-
resenting all the creditors) duly appeared. The record would
seem to indicate that there was no appearance for the so-called
"beneficiaries," who claim interest in the western lands, but it
was asserted upon the argument that the record is defective in
that respect, and, with the consent and concurrence of all parties,
the beneficiaries formally entered their appearance in this court.
It appears from the referee's findings of fact that credit was
not given or extended by any creditors upon the strength of
Coffin being the owner of the lands and property in question.
This simplifies the situation, because under such circumstances
the trustee in bankruptcy stands in no better position than that
in which the bankrupt stood on the day the petition was filed,
and it will be necessary only^o deiermme whether, if there had
been no bankruptcy, the beneficiaries could in a court of equity
have established their right to have him dispose of these lands
for their benefit and distribute the proceeds ratably among
them.
The express trust created by the deeds to Clark as trustee and
from Clark to Coffin, and resultant upon the furnishing of the
money by the beneficiaries, was terminated by the delivery of
the quitclaim deeds and by the entry of the decree of the Ne-
braska court on June 2, 1902. Coffin already held the legal
title, and each quitclaim deed conveyed to him every right, title,
and interest, legal and equitable, which the beneficiary execut-
ing it had to convey. At the close of this transaction Coffin was
the absolute owner with no outstanding interest in and no re-
sultant trust to any one. But, since the property was his abso-
lutely, he was entirely free to do what he pleased with it. He
could convey it to one, or more, or all of his fellow stockholders,
or to a stranger. He could convey it to any one he chose in
trust to make any disposition of it he might prescribe so long as
such trust did not violate the law or the statutes of the state.
He could make a declaration of trust which would constitute
KINDS OF PROPERTY 495
himself the trustee for any such purpose. What did he do after
he became the absolute owner on June 2, 1902 ? Were his acts
such that as between himself and the other stockholders — to
whom undoubtedly he owed a, moral obligation to distribute a
proportionate part of the proceeds — a court of equity would
hold that he had created a new trust in their favor? It seems
to us that, upon this record, such question must be answered in
the affirmative.
In the first place we have the sworn statement of Coffin him-
self made June 15, 1904, that although he held the apparent
legal title to the several parcels of land, the same was really in
trust for the benefit of the several individuals whom he enumer-
ated and called beneficiaries. This statement was made after
bankruptcy, and no act of his at that time, no position which
he might take, could alter the status established by the bank-
ruptcy. But it is not as an act of the bankrupt that this state- j
ment of June 15, 1904, is important. It is an historical narjia-
tive of a_transaction lon^ prior t.^ t-hp hankrnptpy^ anrl with such
a sworn "declaration against interest" in the case, it is difficult
to see how a court of equity could refuse such relief as would
give the applicants the benefit of the trust which he thus de-
clared he had created. Nor is this declaration a mere after-
thought. Coffin's whole course of conduct shows that he con-
sidered himself a trustee for his f eUow stockholders. The referee
has found that between July 30 and October 30, 1902, he col-
lected from the sale of these lands and distributed to them 30
per cent of the amounts originally advanced by them. Nor were
his declarations merely oral. The referee finds that :
**In and about October, 1903, he wrote to some and made
statements to others of the parties named in the petition, and
therein called beneficiaries, that he soon hoped and intended to
pay another dividend of from 30 to 40 per cent to claimants
who had advanced funds to the Nebraska Real Estate & Live
Stock Association, part of which was to be paid in cash and
part with notes secured by mortgages on the land in question.
See Exhibits 73 to 131."
Examination of the exhibits referred to shows that the dec-
larations of Coffim as to the equities of the beneficiaries were
much more explicit than the above quotation would indicate.
Thus on August 2, 1902, he writes to one of the beneficiaries to
496 ADMINISTRATION
whom he had sent three notes received as part payment for a
parcel of land just sold:
j, "A party in Nebraska has made me an offer of $950 for each
f $1,000 note, but I have replied that the notes are not mine. If
you should wish to accept the offer, please so advise when re-
turning the receipt. ' '
No one can peruse these exhibits without being convinced that
subsequent to June 2, 1902, Coffin undertook to manage these
lands, to sell them, and to distribute the proceeds in the interest
of all who had originally invested in the enterprise. No doubt
the fact that there was such a trust was kept secret, so that no
other prospective purchaser might question the title to any
property he sold, but it was communicated to the others over
Coffin's signature repeatedly, and, since the rights of no one
else had supervened during this period of secrecy, a court of
chancery would have enforced their equities had application
been made to do so just before the petition in bankruptcy was
filed. As the district judge expresses it, * ' the acts of Mr. Coffin
after the decree [of June, 1902] undoubtedly put the stock-
holders in a position where they could, if there had been time,
have established such a relation;" i, e., a trust relationship.
That being so, the trustee in bankruptcy, who is not the grantee
of the bankrupt for a valuable consideration, but a transferee
by act of the law, who takes his property subject to all existing
equities, cannot successfully dispute their right to establish such
relationship in an appropriate tribunal. And, since all parties
are here, this court may properly dispose of the controversy.
As to the various drafts referred to supra, the evidence is
not sufficiently clear to enable us to determine how much of
them represents proceeds of sales of land and how much repre-
sents general funds of the bankrupt. Upon remand of the cause
the District Court will be able to determine those questions.
The order is reversed, and cause remanded, with instructions
to the District Court to vacate the injunction which now pre-
vents Coffin as trustee for the "beneficiaries" from continuing
to sell this western land and to distribute the proceeds between
them. As to the drafts and cash, disposition can be made of
them in conformity with the views expressed in this opinion.^
3 — See Carpenter v. Marnell, 3 129. Cf. In re Packing Co., 138 Fed.
B. & P. 40; In re Davis, 112 Fed. 625.
KINDS OF PEOPERTY ^ 497
CHICAGO, BURLINGTON, & QUINCY RAILROAD COM-
PANY V. HALL ^''^^•r*
229 U. S. 511, 57 L. ed. 1306, 33 Sup. Ct. 885 '^. C ? S.
(United States Supreme Court. June 9, 1913) * -^^ 9 //•
loyed/^
H^l, a resident of Douglas county, Nebraska, was employed / ■ yw
by the railroad as switchman in its yards in Omaha. His wages ^t --i ^
were exempt from garnishment by the laws of Nebraska. In _^- v*
July, 1907, he was insolvent, and in that month, while tern- ^^ ^
porarily in the state of Iowa, two proceedings were instituted M. /,
against him, in which he was personally served, and the rail- ^<
road, which owed him ^132 as wages, was garnisheed. In one
of these cases Rawles sued on an open account for $54.20, the
railroad being required to answer on August 10th. In the other,
Torrey, holding a judgment for $22,40, rendered in 1894, served
a summons of garnishment on the railroad, requiring it to an-
swer on August 27, 1907.
"While these proceedings were pending in the Iowa courts,
Hall returned to Nebraska, and, on^ August 7, 1907, he was, on
his own application, adjudged a. bankrupt, his wages being
claimed as exempt, and the two Iowa plaintiffs included in his
list of creditors. Notice of the bankruptcy proceeding was given
to them and to the railroad.
Thereafter, on August 10th, the railroad answered in the
Rawles suit, admitting that it owed Hall $122, and a judgment
was accordingly entered against the railroad as garnishee for
$61.60. On August 27, it answered in the Torrey suit, and the
court entered judgment against it as garnishee for $56.91. Hall,
in the bankruptcy proceedings, had asked that, as allowed by
the laws of Nebraska, his wages be set apart as exempt, and filed
a petition praying that the railroad should be summarily ordered
to pay him the amount due for work done in June and July,
1907. The application was resisted by the railroad and was
denied by the court, which held, on the authority of Ingram v.
Wilson, 60 C. C. A. 618, 125 Fed. 913, that the bankruptcy court
could determine that the property was exempt, but had no juris-
diction to compel its payment.
In view of that ruling, Hall made a further application to
have the $122 set off to him as exempt. An order to that effect
was passed by the referee. Hall was discharged as a bankrupt^ 1
in April, 1908, and then sued the railroad and recovered a judg- /
H. & A. Bankruptcy — 32
498 ADMINISTRATION
ment, which was afifirmed by the Supreme Court (88 Neb. 20,
128 N, W. 645), and the case was brought here.
Mr. Justice LAMAR, after making the foregoing statement
of facts, delivered the opinion of the court:
Hall, a married man, head of a family, and insolvent, worked
as a switchman for the railroad company in Nebraska, his wages
being exempt from garnishment by the laws of that state. While
temporarily absent in Iowa, two suits were there brought against
him, summons of garnishment being served upon the railroad's
agent in Iowa, where it had been held that the Nebraska exemp-
tion statute had no extra-territorial effect.
While these two suits were pending in Iowa, Hall returned to
Nebraska, was adjudged a bankrupt, and claimed his wages as
exempt. No defense was made to the Iowa suits, and in both
cases judgment was entered against the railroad as garnishee.
For this reason it refused to pay Hall when he demanded the
money, which had been set apart to him as exempt by the referee.
He then sued the company and recovered a judgment, which
was affirmed by the Supreme Court of Nebraska. The railroad
sued out a writ of error to test its liability in this class of cases,
which it insists are constantly arising, because of the employ-
ment of many persons on lis linies, extending into different states,
with varying garnishment laws. It contends that the laws of
Iowa do not recognize the Nebraska exemption of wages from
garnishment ; that Hall was personally served in the Iowa suits,
and that the judgments therein entered against the railroad as
garnishee are unreversed and binding; that to compel it to pay
Hall and these Iowa plaintiffs also is to impose upon it a double
liability, and to deny to the judgments of the Iowa courts the
full faith and credit to which they are entitled under the Fed-
eral Constitution.
But if they were nullified by §^67/ of the bankruptcy act, they
are entitled to no faith and no credit. That they were so nulli-
fied is Hall's contention; for he insists that if there was a lien
against his wages, it was obtained by garnishment served within
four months of his bankruptcy, and discharged by virtue of the
provisions of § 67/, which declares that "all * * * liens ob-
tained through legal proceedings against a person who is in-
solvent, at any time within four months prior to the filing of a
petition in bankruptcy against him, shall be deemed null and
void in case he is adjudged a bankrupt, and the property af-
KINDS OP PROPERTY 499
fected by the levy, judgment, attachment, or other lien shall
be deemed wholly discharged and released from the same, and
shall pass to the trustee as a part of the estate of the bankrupt. ' '
The railroad, on the other hand, contends that under_§J70 the '
trustee acquires no title "to property which is exempt," and '
that liens thereon are not discharged by §.67/, since that section
has reference only to liens on property which can "pass to the j
trustee as a part of the estate of the bankrupt, ' ' /
On this question there is a difference of opinion, some state
and Federal courts holding that the bankruptcy act was intended
to protect the creditor's trust fund, and not the bankrupt's own
property, and that therefore liens against the exempt property
were not annulled even though obtained by legal proceedings
within four months of filing the petition. Re Driggs, 171 Fed. >
897 ; Re Durham, 104 Fed. 231. On the other hand. Re Tune,
115 Fed. 906 ; Re Forbes, 108 C. C. A. 191, 186 Fed. 79, hold~j
that § 67/ annuls all such liens, both as against the property |
wEieh the trustee takes and that which may be set aside to the |
bankrupt as exempt. ~*
This view, we think, is supported both by the language of the
sectioA and the general policy of the act, which was intended
not only to secure equality among creditors, but for the benefit
of the debtor in discharging him from his liabilities and en-
abling him to start afresh with the property set apart to him
as exempt. Both of these objects would be defeated if judgi,
ments like the present were not annulled, for otherwise thp
t^ojowa plaintiffs would not only obtain a preference oyer
other creditors, but would take property which it was the pur-
pose of the bankruptcy act to secure to the debtor. f
Barring exceptional cases, which are specially provided for,
the policy of the act is to fix a four months' period in which a
creditor cannot obtain an advantage over other creditors nor a
lien against the debtor's property. "All liens obtained by legal
proceedings" within that period are declared to be null and
void. That universal language is not restricted by the later
provision that "the property affected by the * * * lien
shall be released from the same, and pass to the trustee as a part
of the estate of the bankrupt." It is true that title to exempt
property does not vest in the trustee, and cannot be adminis-
tered by him for the benefit of the creditors. But it can "pass/"
to th£. trustee as a part of the estate of the bankrupt, ' ' for the!
purposes named elsewhere in the statute, included in which isl
500 ADMINISTRATION
the duty to segregate, identify, and appraise what is claimed
to be exempt. He must make a report "of the articles set off
to the bankrupt, with the estimated value of each article," and
creditors have twenty days in which to except to the trustee's
report. §47 (11) and general orders in bankruptcy 17. In
other words, the property is not automatically exempted, but
must "pass to the trustee as a part of the estate," — not to be
administered for the benefit of creditors, but to enable him to
perform the duties incident to setting apart to the bankrupt
what, after a hearing, may be found to be exempt. Custody and
possession may be necessary to carry out these duties, and all
S levies, seizures, and liens obtained by legal proceedings within
\ the four months, that may or do interfere with that possession,
are annulled, not only for the purpose of preventing the prop-
erty passing to the trustee as a part of the estate, but for all
purposes, including that of preventing their subsequent use
against property that may ultimately be set aside to the bank-
rupt. This property is withdrawn from the possession of the
trustee, not for the purpose of being subjected to such liens,
but on the supposition that it needed no protection, inasmuch
as they had been nullified.
The liens rendered void by § 67/ are those obtained by legal
proceedings within four months. The section does not, however,
defeat rights in the exempt property acquired by contract or by
waiver of the exemption. These may be enforced or foreclosed
by judgments obtained even after the petition in bankruptcy was
filed, under the principle declared in Lockwood v. Exchange
Bank, 190 U. S. 294, 47 L. ed. 1061, 23 Sup. Ct. Rep. 751. But
Hall did not waive his exemption in favor of the Iowa plaintiffs,
and they had no right against his wages except that which was
obtained by a legal proceeding within four months of the bank-
ruptcy. Those liens, having been annulled by § 67/ of the bank-
ruptcy act, furnished no defense to the railroad when sued by
Hall for his wages, earned in Nebraska, exempt by the laws of
that state, and duly set apart to him by the referee in bank-
ruptcy. The judgment of the Supreme Court of Nebraska is
affirmed.*
4 — Southern Pac. Co. v. I. X. L,
Furniture, etc., House (Utah, 1914),
140 Pac. 665, ace.
y^ ) \^
V^
KINDS OF PROPERTY 501
LOCKWOOD v. EXffiANGE BANK ^^^"^^^f"*^ ^,
190 U. S. 294, 47 L. ed. 1061, 23 Sup. Ct. 751 ^ . /^ T \/
(United States Supreme Court. June 1, 1903) a4.vck*^T».*jk # j
In this proceeding, upon certain questions being certified by
the United States Circuit Court of Appeals for the fifth circuit
for decision by this court, a writ of certiorari was allowed, and
the entire record has been brought up for consideration.
The controversy is fully set forth in the following "state-
ment of case," embodied in the certificate of the Circuit Court
of Appeals :
"On the 23d day of November, 1900, said Joel W. Loekwood
was, on his application, duly adjudged a bankrupt by the District
Court of the United States for the southern district of Georgia.
On December 6, 1900, F. T. Rape was duly appointed trustee for
said bankrupt ; on the 16th day of December, 1900, the said F. T.
Rape, trustee, set aside and designated as an exemption all of
the property returned by the 5»i.iH bari]5ri]pt rnFiis sc,h^iiTft_of
assets. On the 1st day of January, 1901, the Exchange Bank of
^^o?rif alley, a creditor who had duly proven its debt as an unse-
cured claim, filed exceptionsjo the trustee's assignment of home-
stegii_au4„exeinptiQe, upon the following grounds : " :
" ' (a) That said creditor held a contract against the bankrupt
in which said bankrupt specially waived and renounced all right
to the homestead exemption allowed by the laws of Georgia or the
United States. Said waiver is contained in a note constituting
contract of indebtedness, and was made in accordance with the
provisions of the Constitution and laws of said state, authorizing
and empowering the debtor to waive and renounce in writing his
right to the benefit of the exemption provided for by the Con-
stitution and laws of said state.
" '(6) That creditor's debt was unsecured, save and except
so far 2& a waiver of homestead and exemption may be construed
as a security.
" '(c) That the trustee has set apart all the property of said
bankrupt returned by him in bankruptcy.
" * (d) Under the laws of Georgia, the debtor's exemption can-
not be subjected to the payment of a debt containing a waiver
of homestead except by putting said debt in judgment, and after-
wards causing execution to issue thereon to be levied on the
502 ADMINISTRATION
exempt property, in accordance with the provisions of § § 2850
et seq. of the Code of Georgia. If bankrupt court should ap-
prove trustee 's assignment in this case, without reserving to peti-
tioner the right to sue his claim and put same in judgment, and
without itself giving judgment for said debt, creditor would be
left without means of enforcing his rights created and arising
out of the aforesaid waiver, and would be without remedy.
" * (e) Creditor therefore prays equitable relief and such de-
cree as will protect his rights; that the homestead be set aside
and trustee be required to take charge of and administer the
property of said bankrupt so set apart, except so much as cannot
be waived, for the benefit of creditors holding waiver contracts. '
' ' To these exceptions of the creditor the bankrupt duly filed a
demurrer on the following grounds :
'* * (a) That said exceptions are wholly insufficient in law to
defeat the report of the trustee.
" '(b) That the exceptions made are not such as, under the
laws of Georgia, will defeat the setting apart of the exemption,
and furnish no reason why the trustee should not assign the
exemption.
" ' (c) That the bankrupt court has no jurisdiction over ex-
empted property, and no authority to administer the same.
" ' (d) That there is no authority of law for the exceptions
made, nor for the relief sought. '
"The referee, Honorable Shelby Myrick, overruled the afore-
said demurrer, and directed the trustee to carve out of the said
exemption of property a portion of the same, amounting to
$300.00, which was to be free from the claims of all creditors.
JThe residue of the exempted property was to be sold, and the
/proceeds held by the trustee for the benefit of creditors holding
(waiver notes. The bankrupt was ordered to yield possession to
the trustee for the purpose of carrying out this order. The ref-
eree, at the request of bankrupt, certified the record in said case,
together with his decision thereon, to the Honorable Emory
Speer, judge of the District Court of said district, for final
determination. On the 30th March, 1901, said case came on regu-
larly to be tried before said district judge, and, after hearing
argument of counsel, his honor Judge Emory Speer held and
decided and adjudged the aforesaid exceptions to the determina-
tions and report of the trustee be sustained, and that the exemp-
tions set apart by the trustee in his said report be denied and
refused to the said bankrupt, save and except the item of house-
KINDS OP PROPERTY 503
hold furniture and wearing apparel, and that the said bankrupt
was not entitled to an exemption as claimed by him, by reason of
having waived and renounced in writing his rights thereto, in
accordance with the Constitution and laws of the state of
Georgia."
This judgment of the District Court is the one complained of,
and which was sought to be revised in the Circuit Court of
Appeals.
Mr. Justice WHITE, after making the foregoing statement,
delivered the opinion of the court:
The general exemption of property from levy or sale, author-
ized by article 9, § 1, Tj 1, of the present Constitution of the state
of Georgia (that of 1877), is ''realty or personalty, or both, to
the value in the aggregate of $1,600." By article 9, § 3, ^ 1, of
the same Constitution, a debtor is vested with power to waive or
renounce in writing this right of exemption, ' ' except as to wear-
ing apparel, and not exceeding $300 worth of household andi
kitchen furniture and provisions, ' ' The mode of enforcement of
a. waiver of exemption is provided for in § 2850 of the Code of
1895, reading as follows :
"In all cases when any defendant in execution has applied
for and had set apart a homestead of realty and personalty, or
either, or where the same has been applied for and set apart out
of his property, as provided for by the Constitution and laws of
this state, and the plaintiff in execution is seeking to proceed
with the same, and there is no property except the homestead, on
which to levy upon the ground that his debt falls within some one
of the classes for which the homestead is bound under the Con-
stitution, it shall and may be lawful for such plaintiff, his agent,
or attorney, to make affidavit before any officer authorized to
administer oaths that, to the best of his knowledge and belief,
the debt upon which such execution is founded is one from which
the homestead is not exempt, and it shall be the duty of the officer
in whose hands the execution and affidavit are placed to proceed
at once to levy and seU, as though the property had never been
set apart. The defendant in such execution may, if he desires to
do so, deny the truth of the plaintiff's affidavit by filing with
the levying officer a counter affidavit."
The question presented on the record before us may be stated
in similar language to thatVhich was used by the district judge
— ^the correctness of whose decision in the case at bar is now for
504
ADMINISTRATION
review — in the course of his opinion In re Woodruff, 96 Fed. 317,
as follows (p. 318) :
"Has the bankruptcy court jurisdiction to protect or enforce
against the bankrupt's exemption the rights of creditors not hav-
ing a judgment or other lien, whose promissory notes or other
like obligations to pay contain a written waiver of the homestead
and exemption authorized and prescribed by the Constitution of
the state, or are such creditors to be remitted to the state courts
for such relief as may be there obtained ? ' '
The provisions of the bankruptcy act of 1898 [30 Stat, at L.
544, c. 541 (U. S. Comp. Stat. 1901, p. 3418),] which control the
consideration of the question just propounded are as foUows:
By clause 11 of § 2 courts of bankruptcy are vested with juris-
diction to "determine all claims of bankrupts to their exemp-
tions." I^G^rovides as follows: '> 'sUj^nir^B 'iff lu
"§ 6. This act shall not affect the allowance to bankrupts of
the exemptions which are prescribed by the state laws in force
at the time of the filing of the petition in the state wherein they
have had their domicil for the six months or the greater portion
thereof immediately preceding the filing of the petition."
By clause 8 of § 7 the bankrupt is required to schedule all his
property, and to make "a claim for such exemptions as he may
be entitled to. ' ' By clause^ll.pf .i 47 it is made the duty of the
trustees to ''set apart the bankrupt's exemptions and report
the items and estimated value thereof to the court as soon as
practicable after their appointment. ' ' By § 67 it is provided,
among other things, that the property of the debtor fraudulently
conveyed, etc., "shall, if he be adjudged a bankrupt, and the
same is not exempt from execution and liability for debts by the
law of his domicil, be and remain a part of the assets and estate
of the bankrupt, ' ' etc. In § 70 is enumerated the property of
the bankrupt which is to vest in the trustee as of the date of
the adjudication in bankruptcy, "except in so far as it is to
property which is exempt."
Under the bankruptcy act of 1867 [14 Stat, at L. 522, c. 176]
it was held that property generally exempted by the state law
from the claims of creditors was not part of the assets of the
bankrupt, and did not pass to the assignee, but that such prop-
erty must be pursued by those having special claims against it,
in the proper state tribunals. Thus, speaking of the act of 1867,
Mr. Justice Bradley (Re Bass, 3 Woods, 382, 384, Fed. Cas.
No. 1,091) said:
KINDS OF PROPERTY 505
' ' Not only is all property exempted by state laws, as those laws
stood in 1871, expressly excepted from the operation of the con-
veyance to the assignee, but it is added in the section referred to,
as if ex industria, that ' these exceptions shall operate as a limi-
tation upon the conveyance of the property of the bankrupt to
his assignee, and in no case shall the property hereby excepted
pass to the assignee, or the title of the bankrupt thereto be im-
paired or affected by any of the provisions of this title. '
"In other words, it is made as clear as anything can be thatj ^
such exempted property constitutes no part of the assets in/ ,
bankruptcy. The agreement of the bankrupt in any particular
case to waive the right to the exemption makes no difference. He
may owe other debts in regard to which no such agreement has
been made. But whether so or not, it is not for the bankrupt
court to inquire. Tlie_exemption is created by the state law, and
the assignee acquires no title to the exempt property. If the
"creditor has a claim against it, he must prosecute that claim in
a court which has jurisdiction over the property, which the bank-
rupt court has not. ' '
We think that the terms of the bankruptcy act of 1898, above ,
set out, as clearly evidence the intention of Congress that the )
title to t]^e-^.pi»p^'ty of a bankrupt, generally exempted by state
laws, should remain in the bankrupt, and not pass to his repre-
sentative in bankruptc}'. as did the provisions of the act of 1867,
considered In re Bass. The fact that the act of 1898 confefsS
upon the court of bankruptcy authority to control exempt prop-
erty in order to set it aside, and thus exclude it from the assets
of the bankrupt estate to be administered, affords no just ground
for holding that the court of bankruptcy must administer and
distribute, as included in the assets of the estate, the very prop-
erty which the act, in unambiguous language, declares shall not
pass from the bankrupt, or become part of the bankruptcy assets.
The two provisions of the statute must be construed together,
and both be given effect. Moreover, the want of power in the
court of bankruptcy to administer exempt property is, besides,
shown by the context of the act ; since, throughout its text, ex-
empt property is contrasted with property not exempt, the lat-
ter alone constituting assets of the bankrupt estate subject to
administration. The act of 1898, instead of manifesting the pur-
pose of Congress to adopt a different rule from that which was
applied, as we have seen, with reference to the act of 1867, on
the contrary, exhibits the intention to perpetuate the rule, since
506
ADMINISTRATION
the provision of the statute to which we have referred in reason
is consonant only with that hypothesis.
Though it be conceded that some inconvenience may arise from
the construction which the text of the statute requires, the fact
of such inconvenience would not justify us in disregarding both
its letter and spirit. Besides, if mere arguments of incon-
venience were to have weight, the fact cannot be overlooked that
the contrary construction would produce a greater inconvenience.
The difference, however, between the two is this: That in the
latter case — that is, causing the exempt property to form a part
of the bankruptcy assets — the inconvenience would be irremedi-
able, since it would compel the administration of the exempt
property as part of the estate in bankruptcy ; whilst in the other,
the rights of creditors having no lien, as in the case at bar, but
having a remedy under the state law against the exempt prop-
erty, may be protected by the court of bankruptcy, since, cer-
tainly, there would exist in favor of a creditor holding a waiver
note, like that possessed by the petitioning creditor in the case at
bar, an equity entitling him to a reasonable postponement of
the discharge of the bankrupt, in order to allow the institution
in the State Court of such proceedings as might be necessary
to make effective the rights possessed by the creditor.
As, in the case at bar, the entire property which the bank-
rupt owned is within the exemption of the state law, it becomes
unnecessary to consider what, if any, remedy might be available
in the court of bankruptcy for the benefit of general creditors,
in order to prevent the creditor holding the waiver as to exempt
property from taking a dividend on his whole claim from the
general assets, and thereafter availing himself of the right result-
ing from the waiver to proceed against exempt property.
r"Yhe judgment of the District Court is reversed, and the pro-
jceeding is remanded to that court with directions to overrule
the exceptions to the trustee's assignment of homestead and
exemption, and to withhold the discharge of the bankrupt, if
he be otherwise entitled thereto, until a reasonable time has
elapsed for the excepting creditor to assert, in a state tribunal,
his alleged right to subject the exempt property to the satis-
faction of his claim. And it is so ordered.
li<
KINDS OF PROPERTY €07
In re GHAZAL
174 Fed. 809, 98 C. C. A. 517
(Circuit Court of Appeals, Second Circuit. December 7, 1909)
LACOMBE, Circuit Judge. The sum in question was awarded
to Ghazal by the Treasury Department on May 6, 1908, as a
reward for information given by him against smugglers, which
information resulted in the discovery and confiscation by the
United States government of certain smuggled property. The
award was made under authority of Act June 22, 1874, c. 391,
§ 4, 18 Stat. 186 (U. S. Comp. St. 1901, p. 2019), which provides:
"That whenever any ofl&cer of the customs or other person
shall detect and seize goods, wares, or merchandise, in the act
of being smuggled, or which have been smuggled, he shall be
entitled to such compensation therefor as the Secretary of the
Treasury shall award not exceeding in amount one-half of the
net proceeds, if any, resulting from such seizure, after deduct-
ing all duties, costs, and charges connected therewith : provided,
that for the purpose of this act smuggling shall be construed to
mean the act, with intent to defraud, of bringing into the United
States, or with like intent, attempting to bring into the United
States, dutiable articles without passing the same, or the pack-
age containing the same, through the custom house, or submitting
them to the officers of the revenue for examination. And when-
ever any person not an officer of the United States shall furnish
to a district attorney, or to any chief, officer of the customs,
original information concerning any fraud upon the customs-
revenue, perpetuated or contemplated, which shall lead to the
recovery of any duties withheld, or of any fine, penalty, or for-
feiture incurred, whether by importers or their agents, or by
any officer or person employed in the customs service, such com-
pensation may, on such recovery, be paid to such person so fur-
nishing information as shall be just and reasonable, not exceeding
in any case the sum of five thousand dollars; which compensa-
tion shall be paid, under the direction of the Secretary of the
Treasury out of any money appropriated for that purpose. ' '
It is clear that the statute makes the Secretary of the Treasury i^
the sole judge as to whether there is an informer who is entitled/
to a share under this section. Until he acts the informer haaj
merely an expectation of reward. Ramsey v. U. S., 14 Ct. C1.I
508 ADMINISTRATION
367. The trustee does not question the accuracy of this proposi-
tion.
§3477, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2320),
provides :
"All transfers and assignments made of any claim upon the
United States or any part or share thereof, or interest therein,
whether absolute or conditional, and whatever may be the con-
sideration therefor, and all powers of attorney, orders, or other
authorities for receiving payment of any such claim, or any part
or share thereof, shall be absolutely null and void, unless they
are freely made and executed in the presence of at least two
attesting witnesses, after the allowance of such a claim, the ascer-
tainment of the amount due, and the issuing of a warrant for the
payment thereof, such transfers, assignment, and powers of at-
torney, must recite the warrant for payment, and must be
acknowledged by the person making them, before an officer hav-
ing authority to take acknowledgments of deeds, and shall be
certified by the officer ; and it must appear by the certificate that
the officer at the time of the acknowledgment, read and fully
explained the transfer, assignment or warrant of attorney to the
person acknowledging the same. ' '
It is therefore apparent that, before the allowance to him of
the $428.93, Ghazal could not have transferred the same, be-
cause any such attempted transfer would be null and void, and
certainly a hoped-for award, not yet made, could not have been
levied upon and sold in judicial process against him.
The relevant provision of the bankrupt act (Act July 1, 1898,
c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]) is:
"§70. That the trustee * * * shall * * * be vested
by operation of law with the title of the bankrupt as of the date
he was adjudged a bankrupt * * * to all * * * prop-
erty which prior to the filing of the petition he could by any
means have transferred or which might have been levied upon
and sold under judicial process against him. ' '
The petition in bankruptcy was filed on April 29, 1908, but
the award was not made by the Secretary of the Treasury until
May 6, 1909. Under the provisions of statute above cited, there-
fore the trustee did not take title to this sum of $428.93.
It is contended, and the District Judge reached the conclusion,
that the bankrupt was estopped from insisting that title to this
sum never passed to the trustee. Before petition was filed Ghazal
had made assignments to some of his creditors of certain sums.
KINDS OF PROPERTY 509
out of moneys to be paid him. by the government, all of which
assignments were of course "null and void." It was on the
theory that these were preferential that proceedings in involun-
tary bankruptcy were instituted. Ghazal at first disputed the
allegation of the petition, but subsequently withdrew his answer
and consented to an adjudication. The proposition contended
for is that :
"When the bankrupt voluntarily receded from his position
and endeavored to accept what now appears to be the benefits of
the bankruptcy statute in this case, in the way of applying for
a discharge from his debts, and at the same time to keep out of
the estate in bankruptcy the only property about which the cred-
itors could have attempted to maintain their position * * *
the bankrupt is estopped from insisting that upon the 29th of
April he could not have transferred his claim against the United
States."
We do not find, in the circumstance that he has not chosen to
oppose adjudication, sufficient ground for holding him to be
estopped from insisting that after-acquired property shall not
go to the trustee. No injury has resulted therefrom, and no
one has been misled thereby. Nor can we see that the circum-
stance that he had no property at the time of adjudication is
any reason why he should be required to give up after-acquired
property, which the bankrupt act did not transfer to his trustee.
1/
The order is reversed.^ -+ ^ «w c^''^'^*^
187 U. S. 596, 47 L. ed. 318, 23 Sup. Ct. 200 <^^^ J
PAGE V. EDMUNDS ^.^.-L^W • 1
Si-
(United States Supreme Court. January 5, 1903)
The appellant is a resident of Philadelphia, Pennsylvania, and
has been a member of the Philadelphia Stock Exchange in good
standing since the year 1880. On the 16th of November, 1899,
he was adjudged a voluntary bankrupt in the District Court for
the eastern district of Pennsylvania, and the cause was referred
to Alfred Driver, Esq., referee in bankruptcy. In the schedules
attached to his petition the appellant did not include as an asset
of hisestate his membership in the stock exchange. His trustee
in bankruptcy caused the membership to be appraised, and peti-
5—Cf. Taft V. Maisely, 120 N. Y. Williams v. Heard, 140 U. S. 529
474; Brooks v. Ahrens, 68 Md. 212; (reversing Heard v. Sturgis, 146
Kingsbury v. Mattocks, 81 Me. 310; Mass. 545).
510 ADMINISTRATION
tioned the referee for an order to sell the same. The petition
was heard before the referee, who, after hearing, filed his report
containing a summary as follows:
''The said Page was adjudicated a bankrupt upon his own
petition on November 16, 1899. Upon his examination he stated
that he is a member of the Philadelphia Stock Exchange; that
he bought his seat in 1880, paying for it at that time about
$5,500; that when a member wishes to dispose of his seat he
hunts up somebody who wants to buy and sells it to him ; that
seats are always salable; that the last price paid of which he
heard was $8,500 ; that he could sell his seat at any time to any-
one who wanted to buy it ; that the buyer takes it with the under-
standing that he will be elected a member; otherwise it is no
sale; that he could sell his seat without the approval and con-
currence of the other members; that he did not include the seat
as an asset in his schedules because from his understanding of
the matter he did not consider it an asset ; that in the event of
his death there would be paid to his wife $5,000 out of the
gratuity fund, and that she would get said sum and the seat ; that
if he should sell the seat the gratuity or insurance would go with
the seat. ' •" '-
"The trustee upon this evidence of the bankrupt caused the
seat in the stock exchange to be appraised, and the appraisers
have reported its value to be $8,000.
"The secretary of the stock exchange testified that the bank-
rupt had no unsettled contracts with or claims against him by
any member of the exchange. The Philadelphia Stock Exchange
is an unincorporated association. The constitution and by-laws
were offered in evidence.
* * «
"The by-laws contain no provision relating to membership or
transfer of membership."
As a conclusion from these facts and from the bankrupt law,
the referee on March 7, 1900, "ordered that the trustee sell at
public auction the seat or membership of Edward D, Page, the
bankrupt, and all his right and interest therein, subject to the
constitution and by-laws of the Philadelphia Stock Exchange
regulating membership therein."
The appellant petitioned for a review of the referee 's order by
the District Court, averring error in the order in that the peti-
tioner was advised and believed that his membership in the Phila-
delphia Stock Exchange was not property within the meaning
KINDS OF PROPERTY 511
of the bankrupt act of July 1, 1898 (U. S. Comp. St. 1901, p.
3418), nor was it an asset of his estate which could be sold by his
trustee in bankruptcy.
On June 19, 1900, the District Court approved the order of
sale made by the referee, and directed it to be executed. The
matter was then taken for review to the Circuit Court of Appeals,
which court confirmed the order of the District Court. This
appeal was thereupon taken.
Mr, Justice McKIENNA delivered the opinion of the court:
The case presented by the record is a simple one, and does not
call for elaborate discussion. Indeed, it has been virtually ruled
by this court. Hyde v. Woods, 94 U. S. 525, 24 L. ed. 265 ; Spar-
hawk V. Yerkes, 142 U. S. 1, 35 L. ed. 915, 12 Sup. Ct. Rep. 104.
§ 70 of the bankrupt act of 1898 provides that the trustee shall
be vested with :
"The title of the bankrupt as of the date he was adjudged a
bankrupt, except in so far as it is property which is exempt, to
all * * *
"(3) Powers which he might have exercised for his own
benefit. * * *
" (5) Property which prior to the filing of the petition he coula]
by any means have transferred, or which might have been levied/
upon and sold under judicial process. ' '
* « *
1. Was the seat in the stock exchange property which could
have been by any means transferred, or which might have been
levied upon and sold under judicial process? If the seat was
subject to either manner of disposition, it passed to the trustee
of the appellant's estate.
We think it could have been transferred within the meaning
of the statute. The appellant could have sold his membership,
the purchaser taking it subject to election by the exchange, and
some other conditions. It had decided value. The appellant paid
for it in 1880, $5,500, and he testified that the last price he had
heard paid for a seat was $8,500. One or the other of these sums,
«r at any rate, some sum, was the value of the seat. It was prop-
erty and substantial property to the extent of some amount, nott
withstanding thec(Witingeneies to which it was subject. In othey
words, the buyer took therisk of the contingen^cieS: And they
seem to be capable of estimation. The appellant once estimated
them and paid $5,500 for the seat in controversy ; another buyer
512 ADMINISTRATION
estimated them and paid $8,500 for a seat. A thing having such
vendible value must be regarded as property, and as it could have
been transferred by some means by appellant (one of the condi-
tions expressed in § 70) it passed to and vested in his trustee.
Whether it was subject to levy and sale by judicial process we
need not consider except incidentally in discussing the next
contention.
• * *
Judgment affirmed.^
r EARLB v. MAXWELL
/^ ' 86 S. C. 1, 67 S. E. 962
(Supreme Court of South Carolina. April 29, 1910)
WOODS, J. This appeal is from a decree overruling a de-
murrer to a complaint, the material allegations of which may
thus be stated : On the 24th of February, 1908, the defendant
F. B. MaxweU made an assignment of all his property for the
benefit of his creditors to J. M. Paget. Thereafter, on the 18th
day of March, 1908, Maxwell was adjudged a bankrupt by the
District Court of the United States, and Martin & Earle, a part-
nership composed by B. F. Martin and C. B. Earle, became
trustee for the bankrupt estate. This action was originally
brought in the name of the partnership as trustee, but afterwards
the referee in bankruptcy, with the consent of a majority of the
creditors in numbers and amount, substituted C, B. Earle as
trustee, and the complaint was amended to conform to the change.
F. B. Maxwell, the bankrupt, is the grandson of F. C. Borstell
and the son of Mrs. Alice Maxwell. By his will, Borstell made
the following devise: "I will and bequeath to my daughter,
Alice Maxwell, my lot on Brick Range with the storeroom, offices
and all buildings connected therewith, and in view of the mis-
fortunes of life which are incident to aU persons however prudent
and cautious they may be, and not from any distrust of my said
daughter or her husband, I have concluded to make this a trust
property, and therefore vest the fee simple of said lot and build-
6 — See In re Becker, 98 Fed. 407 ; of Commerce) ; In re Spitzel & Co.,
In re Comer & Co., 171 Fed. 261; 168 Fed. 156 (license to sell pat-
In re Miller, 171 Fed. 263; In re ented article). But see In re Dann,
Weisel, 173 Fed. 718 (all cases of 129 Fed. 495 (inventor's rights he-
liquor licenses) ; In re Niemann, 124 fore patent issued).
Fed. 738 (Membership in Chamber
KINDS OF PROPERTY 513
ings in D. S. Maxwell, as trustee for her, to have and to hold all
and singular the said premises to him and his heirs and assigns.
In trust nevertheless for the following uses and purposes : That
my said daughter shall have the right to use, occupy and possess
the said property, to receive the issues, rents and profits of the
same, for and during the term of her natural life, and at her
death, the same to be sold and the proceeds to be divided among
her children, share and share alike, the share of any deceased
child, or remote descendant to take the share to which the
parent would be entitled if living as under the statute of dis-
tributions. And should the said trustee die or by any means a
change should be necessary, my said daughter shall have the right
to appoint a new trustee in writing without application to any
court, who shall have all the rights conferred on the said D. S.
JNIaxweU, and so continue to appoint new trustees as often as a
contingency may arise." Mrs, Maxwell, the life beneficiary of
the trust, is still living, and it is therefore uncertain whether
at her death the bankrupt will take, or his children, or their chil-
dren or descendants. Some years before Maxwell was adjudged
a bankrupt, he undertook to assign his interest under the will to
his aunt. Miss Von Borstell, now Mrs. Coleman ; but this assign-
ment is alleged to be invalid for lack of record or other notice to
subsequent creditors. The trustee, believing Maxwell's interest
in the trust estate to be salable, advertised it for sale, and there-
upon received notice from the bankrupt that his contingent in-
terest was not the subject of sale, and that "said sale would be
contested. ' ' The allegation is made : ' ' That by reason of such
notification and claim on the part of F. B. Maxwell and on
the part of others on his behalf, a cloud has been and is now
being cast upon the title of the interest of the plaintiff as trustee,
and that on account of the resultant probability of the bidding
for the said interest being chilled by virtue of such claim and
cloud upon the title as aforesaid, the plaintiff withdrew said in-
terest from sale and now desires the question of title and sala-
bility of the said interest to be determined and declared by the
court, and the cloud from said title removed. ' ' The relief asked
is that the cloud on the title be removed, that the court deter-
mine and declare the salability of the interest of the bankrupt,
and order the plaintiff as trustee to sell and convey it.
In the decree of the Circuit Court this statement appears:
"By consent of counsel, the demurrer to the original complaint
is to be considered as made to the amended complaint." The
H. & A. Bankruptcy — 33
514 ADMINISTRATION
first ground of demurrer to the original complaint was: "Be-
cause it appears from the face of the complaint that the plain-
tiffs have not legal capacity to sue for the following reason,
to wit: §§44 and 45 of the act of Congress entitled *An act to
establish a uniform system of bankruptcy throughout the United
States' provide that the creditors of a bankrupt estate shall
appoint one or three trustees of the estate, who shall be indi-
viduals or corporations ; whereas, it appears from the complaint
that Martin & Earle, a partnership composed of B. F. Martin
and C. B. Earle, and engaged in the practice of law, was ap-
pointed trustee of said estate by the creditors of the bankrupt
estate." Act July 1, 1898, c. 541, 30 Stat. 557 (U. S. Comp. St.
1901, p. 3438). This was the only objection made to the capacity
of the plaintiff to sue, and it was removed by the amendment
alleging C. B. Earle to be the sole trustee and substituting his
name as plaintiff for the firm name of Martin & Earle. Therefore
the point made in argument that C. B. Earle was not properly
appointed trustee of the bankrupt estate was not before the Cir-
cuit Court and cannot be considered by this court.
By the demurrer the bankrupt, Maxwell, submits that the com-
plaint does not state a cause of action : First, because his interest
under the will is contingent, and is therefore not the subject of
sale ; and, second, because the will provides that the land shall be
sold on the death of his mother and the proceeds divided, and
therefore his interest is personalty, with respect to which an
action to remove a cloud on title cannot be maintained. § 70a
of the bankruptcy statute provides that the trustee of the estate
of the bankrupt shall be vested by operation of law with the title
of the bankrupt as of the date he was adjudged a bankrupt,
except in so far as it is to property which is exempt, to "all
property which prior to the filing of the petition he could by
any means have transferred or which might have been levied
upon and sold by judicial process against him. ' ' The bankruptcy
statute further provides for the sale of the property of the bank-
rupt subject to the approval of the bankrupt court.
Since under the will the trustee therein named was to sell the
land and divide the proceeds of the sale after the death of the
life beneficiary, the interest of F. B. Maxwell and the other chil-
dren of Mrs. Maxwell is a contingent interest, not in the land,
but in the proceeds of the land, which is personalty. Wood v.
Reeves, 23 S. C. 382 ; Walker v. Killian, 62 S. C. 482, 40 S. E.
887. The court held, in Pickens v. Pickens, 13 Rich. Eq. Ill,
KINDS OF PROPERTY 515
that, while a contingent interest in land passes to the assignee
of an insolvent, the sale must be postponed until the contingent
interest should become vested. It has been often decided in this
state that an assignment or mortgage of a contingent remainder
in land is good, at least in equity. Allston v. Bank of the State,
2 Hill, Eq. 235 ; Rountree v. Rountree, 26 S. C. 450, 2 S. E. 474;
Bank v. Garlington, 54 S. C. 413, 32 S. E. 513. Under the
bankrupt statute, providing that all property which the bank-
rupt could by any means have transferred passes to the assignee,
there can be no doubt that a contingent remainder in land would
pass and would be subject to sale by the trustee.
The interest of the bankrupt in this case not being an interest
in the land, but in personal property — the money to be realized
from the sale of the land — it might have been doubtful, under
the authority of Wood v. Reeves, supra, whether it could be
assigned or mortgaged; for in that case the view is indicated
that such possible future interest in personal property could
not be mortgaged. But in the later case of Walker v. Killian,
supra, it is expressly held that, while a paper in the form of a
mortgage of such a possible future interest in personal prop-
erty cannot operate as a mortgage, it is good in equity as an
assignment.
In three cases in the District Court of the United States and
in one case in the Circuit Court of Appeals, it has been held
that such a contingent interest in either real or personal prop-
erty as is here involved does not pass to the trustee in bank-
ruptcy, because it is not property which could have been trans-
ferred by the bankrupt. In re Hoadley (D. C.) 101 Fed. 233;
In re Gardner (D. C.) 106 Fed. 670; In re Twaddell (D. C.)
110 Fed. 145 ; In re Wetmore, 108 Fed. 520, 47 C. C. A. 477."^
But these cases arose under the laws of New York and Penn-
sylvania. Under our law there can be no doubt that a bankrupt
could transfer such an interest before his bankruptcy; and,
that being so, the conclusion is inevitable that it passes to the
trustee under a bankrupt act which provides that all "prop-
erty ' ' shall pass which the bankrupt * ' could by any means have
transferred." It is true, as has been often said, that a con-
tingent remainder is not technically an estate, but a mere pos-
sibility of an estate in the future; but that is very far from
7 — See In re McCrea, 161 Fed.
246; Clowe v. Seavey, 208 N. Y.
496, 47 L. E. A. (N. S.) 284. v^iv>?: .;
516 ADMINISTRATION
saying that it is not property. The term "property," used in
the bankruptcy act, is of the broadest possible signification,
embracing everything that has exchangeable value, or goes to
make up a man's wealth — every interest or estate which the law
regards of sufficient value for judicial recognition. Chas. & W.
C. By. Co. V. Reynolds, 69 S. C. 481, 48 S. E. 476; South Bound
Ry. Co. V. Burton, 67 S. C. 515, 46 S. E. 340; Delassus v.
United States, 34 U. S. 117, 9 L. ed. 71 ; Knight v. United Land
Association, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. ed. 974. It
follows that under our decisions the interest of the bankrupt
under the will was ' ' property ' ' which he could have transferred,
and that, therefore, it passed to his trustee in bankruptcy to be
sold by him.
* « •
It might have been more appropriate to have the right de-
termined by application to the Federal Court having control of
the bankrupt proceedings; but that point was not made by the
demurrer, and is not before us.
The judgment of this court is that the judgment of the Cir-
cuit Court be aflSrmed.
:>j
In re MEYER'S ESTATE
Appeal of WEISS
232 Pa. St. 89, 81 Atl. 145
(Supreme Court of Pennsylvania. May 23, 1911)
From the record it appeared that testator died December 19,
1902, leaving a will by which he gave his residuary estate to
his daughter, Clara L. Beihl, and her husband, Ernest H.
Beihl, ''absolutely and forever, as tenants by entireties." On
July 2, 1909, Ernest H. Beihl was adjudicated a bankrupt by
the United States District Court, and Charles J. Weiss was ap-
pointed his trustee in bankruptcy. The trustee in bankruptcy
claimed that one-half of the fund before the court should be
awarded to him as the property of the bankrupt. The auditing
judge disallowed the claim.
STEWART, J. The appeal is by the trustee in bankruptcy
of the estate of Ernest H. Beihl from a decree of the Orphans'
Court in the adjudication of the account of the trustees under
the last will of C. A. Adolph Meyer, deceased, awarding the
KINDS OF PROPERTY 517
fund before the court to Ernest H. Beihl and Clara, his wife.
The appellant claims the fund in virtue of his office in bank-
ruptcy, the appellees on the ground that the estate vested in
them as husband and wife. It is not questioned that under the
will through which this estate was derived husband and wife
took by entireties, if indeed such estate may still be created.
The contention of appellant is that this venerable and unique
common-law estate has been abolished in Pennsylvania by the
act of June 8, 1893 (P. L. 344), not in express terms, but by
unavoidable implication. [After concluding that the estate by
the entirety may still be created in Pennsylvania, the court con-
tinues:]
It is further complained of as error that the court refused to
order proper security to be given for the payment to the trustee
of one-half the income arising during the life of the wife from
the fund for distribution. Whatever the rights of the trustee
may be with respect to the fund in the event of the husband
surviving his wife, it is too plain for discussion that, except as
estates by entirety no longer exist, he can have no present right
of enjoyment. We have just held that they do still exist. In
estates of this kind husband and wife are not joint tenants or
tenants in common, but both are seised of the entirety, per tout
et non per my. As a consequence neither can dispose of any
part without the consent of the other, but the whole must remain
to the other. It follows that the interest of the appellant in
the fund in dispute, under all our authorities defining this kind
of estate, and its characteristics, is at most a contingent one.
He is not presently substituted for the husband, and cannot be.
His right to the use and enjoyment of any part of the fund must
await the happening of the contingency of the husband surviv-
ing the wife. Until that happens, the wife 's right to the enjoy-
ment of the whole may not be disputed by any one claiming
under the husband. The very enlightening discussion of the
subject in the able opinion of Judge Thayer, approved and
adopted by this court in McCurdy v. Canning, 64 Pa. 39, and
which has consistently been followed, makes further citation
of authority for the views here expressed unnecessary.
This assignment of error is likewise overruled, and the appeal
is dismissed.^
8— See Ann. Cas. 1912 C, 1242,
where the case is annotated.
51%>*^ /^>^C ADMINISTRATION
^^^^y^^_ ^ '^' ''^ GAZLAY V. WILLIAMS
i^^" ^^}^^ 210 U. S. 41, 52 L. ed. 950, 28 Sup. Ct 687
(United States Supreme Court. May 18, 1908)
June 16, 1902, W. A. Gazlay, Hanna F. Gazlay, Hulda G.
Miller, Emma G. Donaldson, Julia G. Stewart, and Clara G.
Kuhn entered into a written agreement as lessors with one J. D.
Kueny, whereby, in consideration of the rents to be paid and
the covenants to be performed by said lessee, his heirs and
assigns, they leased to said Kueny certain premises situated on
the east side of Vine street, south of Sixth street, Cincinnati,
Ohio, for a period of ten years, with the privilege of ten years
additional.
The lease contained the following condition :
"Provided, however, that if said lessee shall assign this lease
or underlet said premises, or any part thereof, or if said lessee 's
interest therein shall be sold under execution or other legal
process, without the written consent of said lessors, their heirs
or assigns, is first had, or if said lessee or assigns shall fail to
keep any of the other covenants of this lease by said lessee to be
kept, it shall be lawful for said lessors, their heirs or assigns,
into said premises to re-enter and the same to have again, re-
possess, and enjoy as in their first and former estate, and there-
upon this lease and everything therein contained on the said
lessors' behalf to be done and performed shall cease, determine,
and be utterly void."
On the 9th of April.Jthe.Jlessors filed a petition in the Superior
Court of Cincinnati, Ohio, against J. D. Kueny for the recovery
of rent due under the lease. In their petition the lessors asked
that a receiver be appointed to take charge of all the property
of said J. D. Kueny, including said leasehold estate, and that
said leasehold premises and the unexpired term be sold, "sub-
ject, however, to all the terms, covenants, and conditions con-
tained in the lease from said plaintiffs to said J. D. Kueny."
The court thereupon appointed receivers to take charge of and
manage said property, and later made an order directing said
receivers to sell all of the personal property of said J. D. Kueny,
including the leasehold estate, and under said order all of said
property, including said leasehold estate, was sold to H. D.
Brown, who took possession of the same, made extensive im-
provements thereon, and paid to the lessors the rent reserved
KINDS OF PROPERTY S19
under said lease, from the time he took possession, July, 1905,
to January, 1906, when proceedings were begun against him in
the District Court of the United States for the Southern District
of Ohio, western division, to have him adjudged a bankrupt.
Pending the adjudication, a receiver was appointed, who took
charge of all of Brown's property, including said leasehold
estate, and who, as such receiver, paid to said lessors the rent
reserved in said lease for the month of January, 1906.
In February, 1906, the appellee herein, Fletcher R. Williams,
was elected as trustee in bankruptcy of the estate and effects of
said Brown, and on March 1, 1906, he filed in the bankruptcy
proceeding an application for the sale of said leasehold estate,
making the lessors parties thereto, and asking that they be re-
quired to set up any claim they might have upon the same.
Process was issued and served upon all but one of the lessors on
March 5, 1906, and on that one on March 9, 1906.
On March 6, 1906, said trustee paid to W. A. Gazlay rent for
the month of February, 1906, the amount paid being the monthly
sum named in the said lease. Thereupon said lessors, coming in
for the purposes of the motion only, filed a motion to be dis-
missed from the proceedings on the ground that the court had
no jurisdiction over their persons, which motion was overruled
by the referee in bankruptcy. Thereupon the lessors filed an
answer, "and, without intending to enter their appearance
herein, but acting under protest and the direction of the court, ' '
alleged that the lease contained the condition, among others,
"that if said lessee should assign the lease or underlet said
leased premises or any other part thereof, or if said lessee's
interest therein should be sold uijder execution or other legal
process without the written consent of said lessors, their heirs
or assigns first had; or if said lessee or assign should fail to
keep any of the other covenants of the lease by lessee to be kept,
it should be lawful for said lessors, their assigns or heirs, into
said premises to re-enter and the same to have again, repossess,
and enjoy, as in the first and former estate ; and thereupon this
lease and everything therein contained on said lessor's behalf
to be done and performed, should cease, determine, and be
utterly void. They further say that said lease and the premises^
thereby leased passed into the possession of Harry D. Brown,
the bankrupt herein, without the written consent of said lessors, I
but with their acquiescence only, and that said condition in said-/
lease is still in full force and effect as against said Harry D.
520 ADMINISTRATION
Brown and his trustee in bankruptcy herein. That at the time
of filing of the application herein, so far as they know or are
informed, the said lessors had no claim in said leasehold premises
adverse to said trustee in bankruptcy."
The case was submitted to the referee upon these pleadings,
an agreed statement of facts, and the arguments and briefs of
counsel.
The referee found that the trustee being in lawful possession
of said leasehold estate, the court had jurisdiction of the persons
and subject-matter of the suit; that the claim of the lessors,
assuming that they had one and that it would be enforceable
only after a sale, nevertheless was in the nature of a cloud upon
the title of the trustee to said leasehold estate, and, as such,
could be determined in this proceeding in advance of its happen-
ing; and he thereupon held that the lessors had no right, as
against the trustee in bankruptcy herein, to forfeit the lease in
the event of a sale by him under the court's order, and ordered
the trustee to sell the same free from any claim or right on the
part of the lessors to forfeit the same. To these findings and
this judgment of the referee the lessors took exception and filed
a petition for a review of the same in the District Court in bank-
ruptcy. The referee certified his proceedings to the District
Court, where, upon a hearing on the pleadings and facts, the
findings and judgment of the referee were affirmed and the
petition dismissed.
From this judgment the lessors took an appeal to the United
States Circuit Court of Appeals for the Sixth Circuit. There
the cause was again submitted upon the same pleadings and
facts as in the District Court, and that court affirmed the judg-
ment of the District Court, and held that the clause in said lease
providing for its forfeiture in case of a sale of the same under
execution or other legal process, without the lessors' written
consent thereto, had no application to a sale by the trustee in
bankruptcy, and that therefore the lessors could not forfeit the
lease in case the trustees herein should sell the same. 77 C. C.
A. 662, 147 Fed. 678.
From this judgment the present appeal was taken.
Mr. Chief Justice FULLER delivered the opinion of the court :
The passage of the lessee's estate from Brown, the bankrupt,
to Williams, the trustee, as of the date of the adjudication, was
by operation of law, and not by the act of the bankrupt, nor
KINDS OF PROPERTY $21
was it by sale. The condition imposed forfeiture if the lessee
assigned the lease or the lessee's interest should be sold under
execution or other legal process without lessors' written consent.
A sale by the trustee for the benefit of Brown 's creditors was
not forbidden by the condition and would not be in breach
thereof. It would not be a voluntary assignment by the lessee,
nor a sale of the lessee's interest, but of the trustee's interest,
held under the bankruptcy proceedings, for the benefit of cred-
itors. Jones, in his work on Landlord and Tenant, lays it down
(§ 466) that "an ordinary covenant against subletting and as-
signment is not broken by a transfer of the leased premises by
operation of law, but the covenant may be so drawn as to ex-
pressly prohibit such a transfer, and in that case the lease would
be forfeited by an assignment by operation of law. ' ' The cove-
nant here is not of that character.
The doctrine of Dumpor's Case, 4 Coke, 119, 1 Smith, Lead.
Cas. *85, is that a condition not to alien without license is de-
termined by the first license granted ; and District Judge Thomp-
son expressed the opinion that it was applicable here, and that
the sale to Brown, under the order of the Superior Court of
Cincinnati, entered on the petition of these lessors for the
recovery of rent, set the leasehold free from the forfeiture
clauses, especially as that court did not direct that the sale be
subject to the terms, covenants, and conditions of the lease, as
prayed for in the petition. Moreover, the lessors, in their an-
swer in these proceedings, stated that "said lease and the
premises thereby leased passed into the possession of Harry D
Brown, the bankrupt herein, without the written consent of said
lessors, but wi^ .their aeqjiiescence only; and that the said con
dition in said lease is still in full force and effect as against said
Harry D. Brown and his trustee in bankruptcy herein."
In respect of the lessors, Bro\jii_jQaay be^treated, theii,.^as_if
he were the ,QrigiBal4essee ; and the sale by his assignee in bank-
ruptcy, under order of the bankruptcy court, was not a breach
of the condition in question. The language of Bayley, J., in
Doe ex dem. Goodbehere v. Bevan, 3 Maule & S. 353, cited by
the Court of Appeals, is applicable.
The premises in question in this case, being a public house,
were demised by Goodbehere to one Shaw for a term of years,
and Shaw covenanted that he, his executors, etc., should not nor
would, during the term, assign the indenture, or his or their
interest therein, or assign, set, or underlet the messuage and
522 ADMINISTRATION
premises, or any part thereof, to any person or persons whatso-
ever, without the consent in writing of the lessor, his executors,
etc. Proviso, that in case Shaw, his executors, etc., should part
with his or their interest in the premises, or any part thereof,
contrary to his covenant, that the lessor might re-enter. After-
wards Shaw deposited this lease with Whitbread & Company
as a security for the repayment of money borrowed of them;
and, becoming bankrupt, and his estate and effects being as-
signed by the commissioners to his assignees, the lease was, upon
the petition of Whitbread & Company, directed by the Lord
Chancellor to be sold in discharge of their debt, and was, accord-
ingly, sold to the defendant, and, without the consent of Good-
behere, assigned to the defendant by the assignees, and he en-
tered, etc. The trial judge ruled that this was not a breach of
^e proviso not to assign without consent, etc., inasmuch as the
covenant did not extend to Shaw's assignees, they being as-
signees in law; wherefore he directed a nonsuit. The rule to
Sfet aside the nonsuit was discharged on argument before Lord
Ellenborough, Ch. J. ; LeBlanc, J. ; Bayley, J., and Dampier, J.
(delivering concurring opinions) ; and Bayley, J., said:
* * It has never been considered that the leasee 's becoming bank-
rupt was an avoiding of the lease within this proviso; and if it
be not, what act has the lessee done to avoid it? All that has
followed upon his bankruptcy is not by his act, but by the
operation of law, transferring his property to his assignees.
Then shall the assignees have capacity to take it, and yet not to
dispose of it? Shall they take it only for their own benefit, or
be obliged to retain it in their hands, to the prejudice of the
creditors, for whose benefit the law originally cast it upon them ?
Undoubtedly that can never be."
Decree affirmed.®
1^ ^^ r^ BURLINGHAM v. GROUSE
^ M*^tr^ 228 U. S. 459, 57 L. ed. 920, 33 Sup. Ct. 564
}^ ^V^vJp (United States Supreme Court. April 28, 1913)
^ -' Mr. Justice DAY delivered the opinion of the court:
The action was brought in the United States District Court for
the Southern District of New York by the trustees of the firm
9_See In re Montello Brick Frazin, 183 Fed. 28; Wilson v. Wal-
Works, 163 Fed. 624; Plaut v, Gor- lani, 5 Ex. Div. 155 (reviewing the
ham Mfg. Co., 174 Fed. 872; In re English statutes).
tJ"
KINDS OF PROPERTY 523
of T. A. Mclntyre & Company, and of the individual members
of that firm, bankrupts, against Charles M. Crouse and the
Equitable Life Assurance Society of the United States, to re-
cover the sum of $90,698.32, the net proceeds of certain policies
of insurance issued by the Equitable Life Assurance Society
upon the life of Thomas A, Mclntyre, one of the bankrupts, de-
ceased. The proceeds of the policies were paid into court by
the society. The judgment of the District Court in favor of
Crouse was afiirmed by the Circuit Court of Appeals (104 C. C.
A. 227, 181 Fed. 479), and the case has been appealed to this
court.
It appears that on the 10th of April, 1902, Thomas A. Mc-
lntyre obtained two policies of life insurance in the Equitable
Society. They were known as "guaranteed cash-value, limited
payment, life policies," each providing that upon the death of
the insured the company would pay to his executors, adminis-
trators, or assigns the sum of $100,000 in fifty annual instal-
ments, or the sum of $53,000 in cash, a total of $106,000 for the
two policies. On April 14, 1906, the policies were_assigned abso-
lutely to the firm of T. A. Mclntyre & Company, and on April
24, 1907, they were by that firm assigned to the Equitable
Society as collateral security for a loan of $15,370. On Febru-
ary 25, 1908, two months prior to the filing of the petition in
bankruptcy, the policies were assigned by Mclntyre & Company
to the defendant, Charles M. Crouse, subject, however, to the
prior assignment to the Equitable Society. A petition in in-
voluntary bankruptcy was filed against Mclntyre & Company
and its individual members on April 25, 1908, and on May 9,
1908, the defendant Crouse paid the premiums on the policies,
in the sum of $6,078.38. Mclntyre & Company and the in-
dividual members thereof were adjudged involuntary bankrupts
on May 21, 1908, and the trustees were elected on the 24th of
July, 1908. On the 29th of July, 1908, Thomas A. Mclntyre
died, and the policies became payable.
It appears that the policies had a cash surrender value, which,
at the time when the troistees qualified, was $15,370, or the
amount of the loan of the Equitable Society upon the policies.
It is therefore apparent that on the day when the petition was
filed, as well as the day of the adjudication in bankruptcy, thel
cash surrender value would not have exceeded the loan and lieii
of the society upon the policies. The Circuit Court of Appeals
for the Second Circuit held that, under the circumstances, the
524 ADMINISTRATION
policies did not pass to the trustees as assets, and therefore the
action which had been begun to set aside the transfer to Grouse,
as a preference within the bankruptcy act, could not be
maintained.
The correctness of this decision depends primarily upon the
construction of § 70a of the bankruptcy act, which reads :
"The trustee of the estate of a bankrupt, upon his appoint-
ment and qualification, and his successor or successors if he
shall have one or more, upon his or their appointment and
qualification, shall in turn be vested by operation of law with
the title of the bankrupt, as of the date he was adjudged a
bankrupt, except in so far as it is to property which is exempt,
to all (1) documents relating to his property; (2) interests in
patents, patent rights, copyrights, and trademarks; (3) powers
which he might have exercised for his own benefit, but not those
which he might have exercised for some other person; (4) prop-
erty transferred by him in fraud of his creditors; {5) property
which, prior to the filing of the petition, he could by any means
have transferred, or which might have been levied upon and
Isold under judicial process against him: Provided, that when
any bankrupt shall have any insurance policy, which has a cash
surrender value payable to himself, his estate, or personal repre-
sentatives, he may, within thirty days after the cash surrender
I Talue has been ascertained and stated to the trustee by the com-
/ pany issuing the same, pay or secure to the trustee the sum so
' ascertained and stated, and continue to hold, own, and carry
such policy free from the claims of the creditors participating
in the distribution of his estate under the bankruptcy proceed-
( ings ; otherwise the policy shall pass to the trustee as assets ; and
{6) rights of action arising upon contracts or from the unlawful
taking or detention of, or injury to, his property. ' '
The part of the section particularly to be considered is subdiv.
^_aii4 its proviso. Subdivision 5 undertakes to vest in the trustee
property which, prior to the filing of the petition, the bankrupt
could by any means have transferred, or which might have been
levied upon or sold under judicial process against him. Then
^^ follows the proviso with reference to insurance policies which
^ have a cash surrender value, permitting a bankrupt, when the
1 cash surrender value has been ascertained and stated, to pay or
secure such sum to the trustee, and to continue to hold, own, and
carry the policies free from the claims of creditors; otherwise
the policies to pass to the trustee as assets.
KINDS OF PROPERTY 525
Twq^constructions^ayeJ)eeii--giv^ this section, and the ques-
tion, as presented in this ease, has not been the subject of direct \
determination in this court. The one favors the view that only i
policies having a cash surrender value are intended to pass to i
the trustee for the benefit of creditors. ^^ The other, conceding
that the proviso deals with this class of policies, maintains that
policies of life insurance which have no surrender value pass to
the trustee under the language of § 70a immediately preceding
the proviso, which reads: "Property which, prior to the filing
of the petition, he could by any means have transferred, or which
might have been levied upon and sold under judicial process
against him. ' * ^^
To determine the congressional intent in this respect requires
a brief consideration of the nature of the rights dealt with.
Life insurance may be given in a contract providing simply for
payment of premiums on a calculated basis which accumulates
no surplus for the holder. Such insurance has no surrender
value. Policies, whether payable at the end of a term of years
or at death, may be issued upon a basis of calculation which
accumulates a net reserve in favor of the policy holder, and
which forms a consequent basis for the surrender of the policy
by the insured, with advantage to the company upon the pay-
ment of a part of this accumulated reserve. This feature of
surrender value was discussed by Judge Brown of the Southern
District of New York, In re McKinney, 15 Fed. 535, 537 :
' * The first of these elements, the surrender value of the policy, i
arises from the fact that the fixed annual premium is much inj
excess of the annual risk during the earlier years of the policy, —
an excess made necessary in order to balance the deficiency of
the same premium to meet the annual risk during the latter
years of the policy. This excess in the premium paid over the
annual cost of insurance, with accumulations of interest, con-
stitutes the surrender value. Though this excess of premiums
paid is legally the sole property of the company, still in practi-
cal effect, though not in law, it is moneys of the assured, de-
posited with the company in advance, to make up the deficiency
10— In re Buelow, 98 Fed. 86; In re Slingluff, 106 Fed. 154; In re
In re Josephson, 121 Fed. 142; Welling, 51 C. C. A. 151, 113 Fed.
Gould V, New York L. Ins. Co., 132 189; In re Coleman, 69 C. C. A, 496,
Fed. 927; Morris v. Dodd, 110 Ga. 136 Fed. 818; In re Hettling, 99 C.
606, 50 L. K. A. 33, 78 Am. St, Eep. C. A. 87, 175 Fed. 65; In re Orear,
129, 36 S. E. 83. 30 L. E. A. (N. S.) 990, 102 C. C.
11— In re Becker, 106 Fed, 54; A, 78, 178 Fed, 632.
526 ADMINISTRATION
in later premiums to cover the annual cost of insurance, instead
of being retained by the assured, and paid by him to the com-
pany in the shape of greatly-increased premiums, when the risk
is greatest. It is the 'net reserve' required by law to be kept
by the company for the benefit of the assured, and to be main-
tained to the credit of the policy. So long as the policy remains
in force, the company has not practically any beneficial interest
in it, except as its custodian, with the obligation to maintain it
unimpaired and suitably invested for the benefit of the insured.
This is the practical, though not the legal, relation of the com-
pany to this fund.
"Upon the surrender of the policy before the death of the
assured, the company, to be relieved from all responsibility for
the increased risk, which is represented by this accumulating
reserve, could well afford to surrender a considerable part of it
to the assured, or his representative. A return of a part in
some form or other is now usually made. * * * "
This case has been cited with approval in this court. Holden
V. Stratton, 198 U. S. 202, 49 L. ed. 1018, 25 Sup. Ct. Rep. 656;
Hiscock V. Mertens, 205 U. S. 202, 51 L. ed. 771, 27 Sup. Ct.
Rep. 488.
Under the bankruptcy act of 1867 [14 Stat, at L. 522, c. 176,
§ 14] no special provision was made for insurance policies. The
section providing for the passing of the assets of the bankrupt
to the trustee contained the broad language of "all the estate,
real and personal." Under this statute it was held In re
McKinney, supra, that the insurance upon the life of the bank-
rupt vested in the bankrupt estate only to the extent of its cash
surrender value at the time of the filing of the petition.
In Holden v. Stratton, supra, this court held that the law of
the state of Washington, exempting the proceeds of life insur-
ance policies, was applicable, and under the bankruptcy act of
1898, § 6, the bankrupt might retain such policies. The Circuit
Court of Appeals for the Ninth Circuit, from which Holden v.
Stratton came by certiorari to this court, had held that § 70a
was not controlled by the exemptions provided in § 6 of the
bankruptcy act, and had adhered to its former decision In re
Scheld, 52 L. R. A. 188, 44 C. C. A. 233, 104 Fed. 870, in which
§ 70a had been construed to pass insurance policies having a
cash surrender value to the trustee, unless the bankrupt paid
or secured the surrender value, as pointed out in the section.
While this court held that the exemption under the state law
KINDS OF PROPERTY 527
applied under the bankruptcy act to the policy in question,
coming to deal with the construction of § 70a, this court said
(198 U. S., p. 213) :
"As § 70a deals only with property which, not being exempt,
passes to the trustee, the mission of the proviso was, in the in-
terest of the perpetuation of policies of life insurance, to pro-
vide a rule by which, where such policies passed to the trustee
because they were not exempt, if they had a surrender value
their future operation could be preserved by vesting the bank-
rupt with the privilege of paying such surrender value, whereby
the policy would be withdrawn out of the category of an asset
of the estate. That is to say, the purpose of the proviso was to
confer a benefit upon the insured bankrupt by limiting the char-
acter of the interest in a nonexempt life insurance policy which
should pass to the trustee, and not to cause such a policy when
exempt to become an asset of the estate. "When the purpose of
the proviso is thus ascertained it becomes apparent that to main-
tain the construction which the argument seeks to affix to the
proviso would cause it to produce a result diametrically opposed
to its spirit and to the purpose it was intended to subserve. ' '
The section came again before this court in Hisco(?k v. Mer-
tens, supra, and it was held that the insured was entitled to
retain the policies upon the payment to the trustee of a sum
equivalent to the amount the company was willing to pay accord-
ing to its custom, although there was no stipulation in the poli-
cies as to a cash surrender value, and upon this subject the court
said (p. 212) :
"What possible difference could it make whether the surren-
der value was stipulated in a policy or universally recognized
by the companies? In either case the purpose of the statute
would be subserved, which was to secure to the trustee the sum
of such value and to enable the bankrupt to 'continue to hold,
own, and carry such policy free from the claims of the creditors
participating in the distribution of the estate under the bank-
ruptcy proceedings. * " 12
And in that case it appeared that this sum was less than
$6,000, whereas in a short time, some six months later, the ma-
turity of one of the policies would give it a value of over $11,000.
But this court held that this circumstance made no difference
12 — See In re Coleman, 136 Fed.
818, where the policy had a loan
value only. •\
528 ADMINISTRATION
in the right of the insured to pay the surrender value and hold
the policy.
/'"True it is that life insurance policies are a species of property
' and might be held to pass under the general terms of subdiv. 5,
/ § 70a, but a proviso dealing with a class of this property was
( inserted and must be given its due weight in construing the
\statute. It is also true that a proviso may sometimes mean
simply additional legislation, and not be intended to have the
usual and primary office of a proviso, which is to limit general-
ities and exclude from the scope of the statute that which would
otherwise be within its terms.
This proviso deals with explicitness with the subject of life
insurance held by the bankrupt which has a surrender value.
Originally life insurance policies were contracts in considera-
tion of annual sums paid as premiums for the payment of a fixed
sum on the death of the insured. It is true that such contracts
have been much varied in form since, and poUcies payable in a
period of years, so as to become investments and means of money
saving, are in common use. But most of these policies will be
found to have either a stipulated surrender value or an estab-
lished value, the amount of which the companies are willing to
pay, and which brings the policy within the terms of the proviso
(Hiscock V. Martens, supra), and makes its present value avail-
^able to the bankrupt estate. While life insurance is property,
lit is peculiar property. Legislatures of some of the states have
/provided that policies of insurance shall be exempt from lia-
/ bility for debt, and in many states provision is made for the
( protection from such liability of policies in favor of those de-
pendent upon the insured. See Holden v. Stratton, supra.
— Congress undoubtedly had the nature of insurance contracts
in mind in passing § 70a with its proviso. Ordinarily the keep-
ing up of insurance of either class would require the payment
of premiums perhaps for a number of years. For this purpose
the estate might or might not have funds, or the payments might
be so deferred as to unduly embarrass the settlement of the
estate. Congress recognized also that many policies at the time
of bankruptcy might have a very considerable present value
which a bankrupt could realize by surrendering his policy to
the company. We think it was this latter sum that the act
intended to secure to creditors by requiring its payment to the
trustee as a condition of keeping the policy alive. In passing
this statute Congress intended, while exacting this much, that
KINDS OF PROPERTY
529
when that sum was realized to the estate, the bankrupt should
be permitted to retain the insurance which, because of advanc-
ing years or declining health, it might be impossible for him to
replace. It is the twofold purpose of the bankruptcy act to
convert the estate of the bankrupt into cash and distribute it
among creditors, and then to give the bankrupt a fresh start
with such exemptions and rights as the statute left untouched.
In the light of this policy the act must be construed. "We think
it was the purpose of Congress to pass to the trustee that sura
which was available to the bankrupt at the time of bankruptcy
as a cash asset; otherwise to leave to the insured the benefit of
his life insurance.
It should be observed, in this connection, that in the present
case the company had advanced upon the policies their full sur-
render value, as stipulated in the policies, and that the only
interest that could have passed to the trustees would have been
the speculative right to the net proceeds of the policies, con-
tingent upon the death of the bankrupt, and possibly dependent
upon the payment of large annual premiums for thirteen years.
It is urged, however, that under § 70a, the cash surrender
value was to be paid by the bankrupt when ascertained, and the
policies kept alive for his benefit; and as these policies had been
assigned by the beneficiary to Mclntyre & Company, not as
collateral, but absolutely, th^ would not come within the terms
ofjthe_proviso, and therefore the procee<3s of the policies vested
in the bankrupt estate ; but we find nothing in the act by which
the right of the assignee of a policy to the benefits which would
have accrued to the bankrupt is limited. As we have construed
the statute, its purpose was to vest the surrender value in the
trustee for the benefit of the creditors, and not otherwise to
limit the bankrupt in dealing with his policy.
• • •
It results that the judgment of the Circuit Court of Appeals
must be aflfirmed.^^
13 — See Foxhever v. Order of Eed
Gross, 2 O. C. C. (N. S.) 394; In
re PfaflSnger, 161 Fed. 526; In re
Whelpley, 169 Fed. 1019; In! re
H. & A. Bankruptcy — 34
Hettling, 175 Fed. 65; In re Orear,
178 Fed. 632. See also Hewlett v.
Home for Incurables, 74 Md. 350.
/
i"(1<J
530 ADMINISTRATION
EVERETT V. JUDSON
■■-.</ '^
228 U. S. 474, 57 L. ed. 927, 33 Sup. Ct 568
(United States Supreme Court. April 28, 1913)
Mr. Justice DAY delivered the opinion of the court:
This case involves the title to the proceeds of certain insurance
policies upon the life of Alfred M. Judson, bankrupt, deceased,
collected by the trustee in bankruptcy. The executor of Jud-
son 's estate brought suit against the trustee in the United States
District Court for the Southern District of New York, assert-
ing title to such funds. The District Court ordered that the
proceeds of the policies, less their cash surrender value, be paid
to the executor (188 Fed. 702) ; the Circuit Court of Appeals
for the second circuit, upon petition to revise, affirmed that
order (113 C. C. A. 158, 192 Fed. 834), and the case comes here
on certiorari.
A petition in involuntary bankruptcy was filed against the
firm of Judson & Judson and its members, Alfred IM. Judson
being one, on December 17, 1910, and on December 23, 1910,
Judson entered a notice of his appearance in the proceedings.
On January 9, 1911, the firm and its members were adjudged
bankrupts, and on February 9, 1911, Everett qualified as trus-
tee, Judson owned certain life insurance policies at the time
of the institution of the bankrupt proceedings, and thereafter
and until his death, payable to his executors, administrators, or
assigns. So far as this case is concerned, at the time of the filing
of the petition in bankruptcy, these policies, with cash surrender
values and subject to loans, were as follows: One policy for
$5,000, having a cash surrender value of $2,291.49, and subject
to a loan of $2,238 ; another for $1,000, having a cash surrender
value of $332.31, and subject to a loan of $322 ; and another for
$10,000, having a cash surrender value of $5,030, and subject
to a loan of $5,240, It therefore appears that the cash surrender
value of the policies on December 17, 1910, was $63.80.
On January 4, 1911, Judson committed suicide. Notice was
served on the trustee that the executor claimed the right, under
§ 70a of the bankruptcy act, to pay to the trustee the cash sur-
render value of the policies when ascertained, but the trustee
denied such right and also the right of the executor to the bal-
ance of the proceeds of the policies. Under agreement, the
insurance companies paid to the trustee $8,675.14 upon the
KINDS OF PROPERTY 531
policies. The executor asserted title to the difference between
the sum realized on the policies and the cash surrender value;
namely, $8,611.34. The District Court, upon the authority of
Burlingham v. Grouse, 104 C. C. A. 227, 181 Fed. 479, held that
the proceeds of the policies, over and above the cash surrender
value as of the date of the filing of the petition, passed to the
executor. The Circuit Court of Appeals affirmed the order of
the District Court, holding that the time when the interest of
the bankrupt estate in the policies passed to the trustee was the
date of the filing of the petition, and further, also upon the
authority of Burlingham v. Crouse, supra, that the interest of
the trustee in the policies extended only to their cash surrender
value.
The present case was argued at the same time as the case of
Burlingham v. Crouse [228 U. S. 459, 57 L. ed. — , 33 Sup. Ct.
Rep. 564], and in so far as it is like that case the principles
therein laid down are controlling. The present case has, how-
ever, a feature not directly involved in the case of Burlingham
V. Crouse, because Judson, the insured, committed suicide before
the adjudication in bankruptcy, although after the filing of the
petition, and it is the contention of the petitioner that the bank-
ruptcy act vested the title to the property in the trustee as of
the time of the adjudication, and that the death of the bankrupt
between the filing of the petition and the date of the adjudica-
tion made the proceeds of the policies assets in the hands of
the trustee.
While it is true that § 70a provides that the trustee, upon his
appointment and qualification, becomes vested by operation of
law with the title of the bankrupt as of the date he was adjudged
a bankrupt, there are other provisions of the statute which, we
think, evidence the intention to vest in the trustee the title to
such proi)€rty as it was at the time of the filing of the petition.
This subject was considered in Acme Harvester Co. v. Beekman
Lumber Co., 222 U. S. 300, 56 L. ed. 208, 32 Sup. Ct. Rep. 96,
wherein it was held that, pending the bankrupt proceedings, and
after the filing of the petition, no creditor could obtain by at-
tachment a lien upon the property which would defeat the gen-
eral purpose of the law to dedicate the property to all creditors
alike. § 70a vests all the property in the trustee, which, prior to
the filing of the petition, the bankrupt could by any means have
transferred, or which might have been levied upon and sold un-
der judicial process against him. The bankrupt's discharge is
532 ADMINISTRATION
from all provable debts and claims which existed on the day on
which the petition for adjudication was filed. Zavelo v. Reeves,
227 U. S. 625, 630, 631, 57 L. ed. 676, 33 Sup. Ct. Rep. 365. The
schedule that the bankrupt is required to file, showing the loca-
tion and value of his property, must be filed with his petition.
We think that the purpose of the law was to fix the line of
cleavage with reference to the condition of the bankrupt estate
as of the time at which the petition was filed, and that the prop-
erty which vests in the trustee at the time of adjudication is
that which the bankrupt owned at the time of the filing of the
petition. And it is as of that date that the surrender value of
the insurance policies mentioned in § 70a should be ascertained.
The subsequent suicide of the bankrupt before the adjudication
was an unlooked-for circumstance which does not change the
result in the light of the construction which we give the statute.
It follows that the judgment should be afiirmed.
GIBSON et al. v. CARRUTHERS
8 Meeson & Welsby, 321
(Court of Exchequer. May 3, 1841)
ROLFE, B. The plaintiffs in this cause are the assignees of
Thomas Harris, a bankrupt.
The declaration states, that Harris, before his bankruptcy,
agreed to buy from the defendant about 2,000 quarters of lin-
seed, free on board at Odessa, at 30s. lOd. per quarter, the ship-
ment to be made on board the buyer's vessel on arrival at Odessa,
which vessel was to be forthwith chartered for thence, and the
amount of the invoice was to be paid on handing over the same
and the bills of lading to the buyers in London.
The declaration then states mutual promises by Harris and
the defendant, according to the terms of that agreement, and
goes on to aver that Harris, in part performance, &c., dispatched
a vessel to Odessa, which arrived there in a reasonable time, and
was ready to receive the linseed on board ; that before its arrival
Harris had become bankrupt; but the master of the ship was
ready and offered to receive the linseed on board, and to give
bills of lading pursuant to the agreement; that the defendant
refused to deliver the linseed on board, or any part thereof, by
reason whereof the plaintiffs, as assignees of Harris, have suf-
fered damage, etc. The declaration, then goes, on to state that
KINDS OF PROPERTY 533
the plaintiffs afterwards, within a reasonable time after the
arrival of the vessel at Odessa, gave notice to the defendant of
their being ready and willing to pay for the linseed on delivery
in London according to the agreement; yet the defendant re-
fused to deliver, etc.
To this declaration the defendant has pleaded, that the plain-
tiffs did not, within a reasonable time after the arrival of the
vessel at Odessa, give notice to the defendant of their intention
to adopt the contract.
The plaintiffs have demurred to this plea, and have assigned
several causes of demurrer, all founded on the principle that the
plea attempts to raise an immaterial issue.
On the argument of this case in last Michaelmas Term it was
contended on the part of the defendant, first, that the declara-
tion does not state a case which gives a right of action to the
assignees; and secondly, that if it does, then the plea discloses
a good defense.
I am of opinion that neither of these propositions can be
supported.
As to the first point, the validity of the declaration: it is
clear that assignees of a bankrupt are entitled to the benefit of
all contracts entered into by the bankrupt, and which are in
fieri at the time of the bankruptcy. They may elect to adopt or
reject such contracts, according as they are likely to be bene-
ficial or onerous to the estate. In no case can the party who
contracted with the bankrupt set up the bankruptcy against the
assignees, as a reason for not doing what he has agreed to do.
Where, indeed, the payment of money or performance of any
other duty by the bankrupt forms a condition precedent to the
doing of the act which the contracting party has agreed to do,
there, unless the money is paid or duty performed, either by
the bankrupt or his assignees, it is plain, on principles alto-
gether independent of any questions arising from bankruptcy
or insolvency, that no obligation exists on the other party to
perform his part of the engagement. But no objection of this
sort can be set up, except in the case of a mere contract for the
sale and delivery of goods, until the time has arrived when the
party seeking the benefit of the contract fails to do something
which according to its provisions he ought to do. Until default,
no such objection arises, even where the whole matter rests iu
fieri ; but much less can such a course be pursued where, as in
the present case, the declaration shows that a part, and probably
534 ADMINISTRATION
no inconsiderable part, of the contract has actually been already
performed by the plaintiffs, or rather by the bankrupt whom
the plaintiffs represent. For it will be observed, that in this
case the first act to be performed under the contract was the
sending of a ship to Odessa. This was actually done at the cost
and risk of the bankrupt. If the argument of the defendant be
well founded, the bankrupt or his estate must sustain the loss
occasioned by his having thus far fulfilled his part of the contract.
It was endeavored to liken this to a case of stoppage in
transitu, to which it was supposed to bear a strong analogy.
But it does not appear to me that any such analogy exists.
Where a vendor of goods has put them into the hands of a
carrier, in order to their being by him forwarded and delivered
to the vendee, then, if the vendee before actual delivery to him
becomes insolvent, the vendor has a right to resume the pos-
session with which he had previously parted. It may be con-
ceded, that the same circumstances which would justify a seller
in stopping the goods in transitu, will also warrant his retaining
them before the transitus has commenced, where nothing remains
to be done but to deliver the goods to the purchaser. But here
the proposed transit of the linseed from Odessa to London was
not, as it seems to me, a transitus within the meaning of the
doctrine relative to stoppage in transitu. I consider it to be
of the very essence of that doctrine, that during the transitus
the goods should be in the custody of some third person, inter-
mediate between the seller who has parted with, and the buyer
who has not yet acquired, actual possession. In this case the
linseed was to be brought to London, not in the ordinary course
of delivery by a seller to a buyer, but under the terms of a
special contract, which reserved to the defendant, the seller, the
exclusive control over it by means of the bills of lading. It was
one of the terms of the contract, that the defendant should in a
certain stipulated mode cause the linseed to be transported to
London, in order that it might there be by him delivered at a
price agreed upon to the bankrupt. This the defendant was
bound to do, in the same way as if he had agreed to do any other
act; as for instance, to bull J a ship, to manufacture goods, or
the like; and he had no right to anticipate that when he had
performed his part of the contract, the bankrupt, with whom he
had contracted, would not by himself or his assignees perform
what he had agreed to do. If the contract was beneficial to the
bankrupt, the assignees would of course adopt it; if it was
KINDS OF PROPERTY 535
onerous, then the defendant would have to look to the bankrupt
himself, the sole party with whom he contracted, and whose
liability would continue notwithstanding the bankruptcy, as
was established by the case of Boorman v. Nash, 9 B. & C. 145.
On these grounds I think the declaration discloses a state of
facts which gives the plaintiffs a right of action.
Supposing this to be so, then the only other question is,
whether the plea states matter which destroys the right of
action appearing on the declaration: I think it does not. All
beneficial interests in the bankrupt are by operation of law
transferred to the assignees, including such a right of action as
exists in the present case. The assignees have the right of adopt-
ing or repudiating the contracts of the bankrupt, according as
they may think them likely to prove beneficial or the contrary.
The proposition implied and asserted by this plea is, that the
assignees are not entitled to the benefit of the bankrupt's con-
tracts, unless, within a reasonable time, they give notice of their
intention to adopt them. But for this proposition I find no
warrant either in the statutes or the decided cases. All that
the assignees are bound to do, is, to fulfill the bankrupt's part
of the engagement when the proper time arrives. If they ex-
pressly waive the contract, or without any express waiver, if
at the proper time they omit to do what, by the terms of the
contract, they are bound to do, in the first case they certainly
will, and in the second they probably may, absolve the other
party from all obligation towards the assignees. But in such a
case the proper course for the defendants would be to plead,
not that the assignees had not given notice of adopting the con-
tract, but that they had repudiated it, of which the express
waiver certainly would, and the implied waiver, by omitting to
do what they ought to do, might, under the circumstances, afford
sufficient evidence. In this case it is not alleged by the plea that
there was any express waiver, or any implied waiver, by omit-
ting to perform any part of the contract, which, as representing
the bankrupt, they were bound to perform ; and on the contrary,
it is clear, from the pleadings, that they were always ready to
do all which the bankrupt would have been bound to do ; and I
therefore think that nothing is stated in the plea defeating the
plaintiffs' right of action as disclosed in the declaration, and
consequently that judgment ought to be for the plaintiffs.^*
14 — The opinions of Gubney, B., But see In re Chalmers, L. B. 8
Parke, B., and Lord Abingeb, C. B., Ch. App. 289. See also In re Glick,
are omitted. 104 Fed. 967; In re Stem, 116 Fed.
/ iJ636 y if^'^'!^ .y' ADMINISTRATION jT
/ >^ JVT^ "V BECKHAM V. DRAKE
y %/' ^ V^ r 2 H. L. Cas. 579
""^ ^ ^^ J^"^ (House of Lords. 1847, 1849)
^ |L.r ^'' This was a writ of error upon a judgment of the Court of
KiT ^ X. Exchequer Chamber reversing a judgment of the Court of
Al^ f/^ Exchequer of Pleas, in an action on promises. Beckham had
y Ji^ jfentered the employment of the defendants under a contract for
nrjr [seven years' service at a stated compensation. It was agreed
» that in case either of the parties should not well and truly ob-
serve, etc., the covenants, etc., the party in default should pay
(to the other five hundred pounds as ' ' specific damages. ' ' After
being dismissed Beckham was declared bankrupt. Later he
brought this action. The defendants pleaded, first, "non-
assumpsit ; ' ' and secondly, that Beckham became bankrupt after
the accruing of the cause of action and before the commence-
ment of the suit. Beckham joined issue upon the plea of "non-
assumpsit," and demurred to the plea of bankruptcy. The
issue in fact was tried and a verdict given for the plaintiff,
damages £500 (9 M. & W. 79).
The demurrer was argued before the judges of the Court of
Exchequer, who gave judgment for the plaintiff upon the de-
murrer (8 M. & "W. 846). The defendants brought a writ of
error in the Exchequer Chamber, and, after argument, the judg-
ment of the Court of Exchequer was reversed (11 M. & W.
315). 15
BARON PARKE. The question proposed by your Lordships
is, whether the plaintiff or the defendant in error is entitled to
judgment.
It was my duty to deliver the judgment of the Court of
Exchequer, consisting of my brothers Alderson, Rolfe, my late
brother Gurney, and myself, when this case was decided by that
court (8 M. & W. 846), and to assign the reasons which induced
me to form the opinion then expressed. The discussion of the
case on the writ of error at your Lordships' Bar, and the sub-
sequent consideration of it, and of the judgment of the Ex-
chequer Chamber, have induced me to think that the reasons so
assigned by me are insufficient.
604; In re Nat. Wire Corp., 166 Fed. 15 — This statement of facts is
631. substituted for that in the report.
KINDS OF PROPERTY 537
One of the causes that has led me to doubt the propriety of
that decision is, that a penalty is given for the non-performance
of this agreement : for it is clear, that, according to the cases of
Kemble v. Farren (31 R. R. 366 [6 Bing. 141]) and others,
though the sum of £500 is said to be for "specific damages," it
is to be construed as a penalty ; and whether that penalty would
vest in the assignees under the circumstances of this case, is a
question which I propose afterwards to consider. But I assume
for the present, that the case is in the same position as if there
was no penalty; on which footing it has been argued at your
Lordships' Bar and in the court below. I would premise that
it is not necessary to say anything upon a question discussed in
the court below, whether all the defendants are liable upon a
contract, though in writing, made by one in reality on his own
behalf, and as agent for the others. There is now no doubt upon
this point; both the courts below concur in this respect; nor
was it disputed in the argument here. The principal question in"
the case on the above mentioned assumption is, whether the right
of action for a breach before bankruptcy of such a contract as
this, for the personal services of the bankrupt, passes to the j
assignees. — -
The general question turns on the 6 Geo. IV, c. 16, § 63,
which must be construed with the aid of the twelfth section,
and with tfiat of former decisions upon the repealed statutes
relative to bankrupts. By that section, "all^the present and
futur£_personal estate of the bankrupt, wheresoever found or
known, and all property which he may purchase, or which may
revert, descend, be devised or bequeathed to, or come to him
before he shall have obtained his certificate, and all debts due
or to be due to him, wheresoever the same shall be found or
known, are assigned, and such assignment is to vest the property,
right, and interest in such debts, as fully as if the assurance
whereby they are secured had been made to the assignees, and
they have the same remedy to recover as the bankrupt would
have had."
A former section (12) enabled the Lord Chancellor to ap-
point commissioners, with full power and authority to make
such order and direction as to the lands, moneys, fees, offices,
annuities, goods, chattels, wares, merchandises and debts, where-
soever they may be found or known. The two sections are to
be read together. s^ii
It is not disputed that the rights of the assignee under the
i.,.*^^^
538 ADMINISTRATION
statute law are not identical with, nor are they so extensive as
those of an executor, who stands in the place of his testator,
and represents him as to all his personal contracts, and is by-
law his assignee (Wentw. Off. Exor. 100), and therefore may
maintain any action in his right which he himself might. (Bac.
Abr. Exors. N.) That must be understood to mean any action
on a contract, for an executor never could sue for wrongs to
his testator; ''actio personalis moritur cum persona." And
with respect to contracts, some exceptions have been introduced
by modern decisions: Chamberlain v. Williamson (15 R. R.
295 [2 M. & S. 408] ), Kingdon v. Nottle (14 R. R. 462 [1 M. &
S. 355]) and 16 R. R. 379 [4 M. & S. 53]), as explained by
Lord Abinger in the case of Raymond v. Fitch (41 R. R. 797
[2 Cr. M. & R. 588, 599]), and the executor cannot sue upon
[contracts the breach of which is a mere personal wrong. The
execjitpr takes all the other personal rights of a testator, as a
^nsequence of his ' representative character, whether they are
available for the payment of debts or not, for his liability to
pay debts is the consequence, not the object, of the appoint-
ment. The assignee is created by statute, for the purpose of
recovering and receiving the estate, and paying the debts of the
bankrupt, and takes only what the statute gives for that pur-
pose. What then does it give? It clearly gives in the section
above mentioned, not merely all personal chattels, securities for
money, and debts properly so called, but all unexecuted con-
tracts which the assignee could perform, the performance of
which would be beneficial to the bankrupt's estate. These are
"personal estate." The assignee takes, in the language of Lord
Tenterden in Wright v. Fairfield (2 B. & Ad. 727), all "the
beneficial matters" belonging to the bankrupt; or, as Mr. Jus-
tice BuUer said, "anything belonging to the bankrupt that can
be turned to profit;" Smith v. Coffin (3 R. R. 435 [2 11. Bl.
444]).
/ This contract, if unexecuted, would clearly not have passed
/to the assignees. But the question is, not whether the contract,
/ but whether the right of action for the breach of it before the
I bankruptcy, passed. The words "personal estate" clearly com-
prise all chattels, chattel interests, and all the subjects men-
tioned in the twelfth section ; and they also comprise some rights
of action which are not properly debts, and would not pass
under the word "debts," but do pass under the description of
"personal estate."
KINDS OF PROPERTY 539
For instance, some actions for torts do pass. Actions for
injuries to personal chattels, whereby they are directly affected,
and are prevented from coming to the hands of the assignee, or
come diminished in value, undoubtedly pass. The action of
trover for a conversion before the bankruptcy is a familiar
instance of this.
On the other hand, rights of action for injuries to the person,
or reputation, or the possession of real estate, do not pass.
Actions of assault, for example, and for defamation, actions on
the case for misfeasance, doing damage to the person, for tres-
pass quare clausum f regit (Rogers v. Spence, 67 R. R. 736 [13
M. & W. 571] ; affirmed in this house, 69 R. R. 169 [12 CI. &
Fin. 700] ) , actions for criminal conversation with the wife, for
seduction of the servant or daughter of the bankrupt, are not
transferred to the assignee, even though some of these causes
of action may be followed by a consequential diminution of the
personal estate, as where by reason of a personal injury a man
has been put to expense, or has been prevented from earning
wages or subsistence ; or where by the seduction the plaintiff has
been put to expense: Howard v. Crowther(58 R. R. 823 [8 M.
& W. 601]). But with respect to contracts; rights of action
for the breach of such as directly affect the personal estate,
whereby the assignee is prevented from receiving part of it, or
its value is diminished, are certainly transferred; as for ex-
ample, rights of action on a beneficial contract, whereby one
engaged to sell and deliver goods to the bankrupt, and which, it
performed, would have put him in the possession of the goods,
or a contract with another to carry or take care of the goods
of the bankrupt which are lost, or injured, and thereby dimin-
ished in value.
On the other hand, actions for the breach of contracts pef^
sonal to the bankrupt, unaccompanied by an injury to the per-
sonal estate, as a contract to carry him in safety, to cure his
person of a wound or disease, or a contract with a person, who
subsequently becomes bankrupt, to marry, 4Te_ certainly not
assigned. This is conceded; but it is questioned on the part of
the defendant in error, I think without sufficient ground,
whether the assignee would not be entitled to sue in any of
these cases, if the personal estate was consequently damaged,
as where the bankrupt was put to expense by the breach of
contract, or lost the power of earning money.
What then is the proper construction of this section of the
540 ADMINISTRATION
act, according to its words and the several cases decided upon
it V The proper and reasonable construction appears to me to
be, that the statute transfers not all rights of action which would
pass to executors (for rights incapable of being converted into
money, such as the next presentation to a void benefice, pass to
them), but all such as would be assets in their hands for the
payment of debts, and no others — all which could be turned to
profit, for such rights of action are personal estate. Of such the
executor is assignee in law ; and the nature of the office and duty
of a bankrupt's assignee requires that he should have them
also. But rights of action for torts which would die with the
testator, according to the rule, ''actio persoTUilis moritur cum
persona," and all actions of contract affecting the person only,
would not pass. Of such the executor is not assignee in law;
and whatever may be the reason of the law which prohibits him
from being so, seems equally to apply to a bankrupt's assignee.
According to this rule, the description of contracts upon which
the right of action is transferred, would include, but would not
be restricted to, such as directly affect some chattel or subject
of property which would pass to the assignees, or to such as
would, if they had been performed, have produced such prop-
erty, which alone, it was argued at your Lordships' Bar, would
be transferred by the statute; and this was in accordance with
r^e view I took in the court below. J think^ upon subsequent
\ reflection, that this is too narrow a construction of the statute,
and that it applies to all contracts for the breach of which an
executor could sue, which could be turned to profit for the
payment of creditors. And if this be the true construction of
the statute, if all the damages for this breach of contract could
.have been recovered by an executor, the assignee could recover
(them, and the plea would be a good plea in bar.
But if part was recoverable for the personal inconvenience
of the bankrupt, a different question presents itself. I think
this contract cannot be said not to relate in any part to the
person of the bankrupt, but that his personal inconvenience and
trouble in looking out for a new employment would be part of
the damages recovered. If so, that part could not be transferred
to the assignees, and ought not to be lost; the right to those
damages, which would be lost in the case of a testator's death
altogether, continues in the bankrupt. It is upon this point that
the case appears to me to turn. Who then are to sue for the
^breach of contract where part belongs to the assignee, part to
KINDS OF PROPERTY 541
the bankrupt? Who would have to sue if the contract was to
cure the bankrupt of a disease, and give him a sum of money,
and there had been a breach of both parts, which appears to me
to be a similar question ? It is extremely difficult to say in whom
the right of action would be.
Either the right of action on the contract must be divided,
and each sue, or the right of action altogether must remain in
the bankrupt, or altogether be transferred to the assignees, or
both must join, the contract being entire, to sue for the damages.
In the first two cases the plea would be good, in the last two
bad ; for in the first it would be no answer to the entire cause of
action; in the second, it would be no answer to any part. I
should feel considerable difficulty in deciding the question, but
this case does not depend upon it, for I have now to consider
what the effect of the penalty is. ,,,)""|'''.-|JT~T"~"-r , , ,. ^^^■"^^^■■
" Thfs subject was not discussed at your Lordships' Bar, and
was little adverted to in the court below.
At common Jaw. the penalty would have been forfeited, and,/
being a sum certain, would have passed to the assignees ; for, at i
the time of the bankruptcy it would have been uncertain j
whether the defendant would ever have filed a bill for relief,''
supposing he could have done so; and a sum certain, defeasible i
on an uncertain event, would have been, until defeated, personal
estate, and would certainly vest in the assignees. But the ques-
tion is, whether the statute 8 & 9 Will. Ill, c. 11, has not made
an alteration. That statute in effect makes the bond a security
only for the damages really sustained. If all the damages
would be recoverable by the assignees, the penalty would pass;
if none, the penalty could not be levied, and therefore could not
be available for the payment of creditors, and probably would
not pass to the assignees. If part of the damages could be re-/
^covered by the assignees, and part not, the question is different.
The penalty would then be a security for damages partly be-
longing to the assignees, partly to the bankrupt. It would be
like the case of a bond to the bankrupt conditioned not to assault
him, and to pay him a sum of money, forfeited in both respects
before the bankruptcy ; and I have had some difficulty in saying
whether the right of action on such a bond would or would not
pass to the assignees.
But it seems to me to be clear that the penalty, which is an-^
entire thing, could not be divided, so that each could sue for a I
pa.rt; and it could not be predicated what part would pass to/
542 KINDS OF PROPERTY
each. It follows, therefore, that either the right to the entire
penalty must remain in the bankrupt, or that either both the
bankrupt and the assignee must join, as being both interested,
or that the right to sue goes to the assignees, in order to secure
such part of the damages as is the personal estate of the bank-
rupt vested in them. I cannot help thinking that both ought to
sue, as they would do if the bankrupt before his bankruptcy had
assigned a part of an entire debt as a security to a creditor, and
consequently was a trustee for him for that part. But, at all
events, I do not think the right to the penalty would remain in
the bankrupt; and therefore the plea is a good plea, as it
shows that the bankrupt could not sue alone.
Therefore, in either view of the case, I now think the judg-
ment of the Court of Exchequer should be reversed, and the
judgment of the Exchequer Chamber affirmed. If the whole of
the damages are part of the personal estate which passed to the
assignees, the plaintiff was barred ; if some were, and some were
not, still for the reasons before-mentioned the plea appears to
me to be good, and my opinion which I expressed in the court
below was wrong.
My opinion now, therefore, is, that the plea of the plaintiff's
bankruptcy is a good bar, and that the judgment of the Ex-
chequer Chamber ought to be affirmed. ^^
a'^^^^
^^iA SIBLEY V. NASON et al.
^^^ jJ^ 196 Mass. 125, 81 N. E. 887
. -v^ (Supreme Judicial Court of Massachusetts. June 20, 1907)
On July 12, 1902, plaintiff was [injured through the alleged
negligence of defendant. It] appeared that plaintiff was ad-
judged a bankrupt in March, 1904, after having brought suit for
his injuries on August 9> 1902, whereupon defendant requested
the court to rule, i7iter alia, (4) that plaintiff, having been ad-
judged a bankrupt subsequent to the commencement of the ac-
tion, could not prosecute the same, and was therefore not entitled
to recover; (7) that, if plaintiff was entitled to recover, he could
not recover for debts incurred for physicians' services, which had
never been paid, but had been proved against his estate in bank-
ruptcy or included in his bankruptcy schedules; (8) that, if
16 — See Streeter v. Sumner, 31 N.
H. 542.
KINDS OF PROPERTY 543
plaintiff was entitled to recover, the market value in the kind of
business in which he was engaged, if any, of his services from the /!
time of the accident to the time of his adjudication in bankruptcy, " ^^
could not be taken into consideration in determining the amount
of damages, if any; and (9) that, if plaintiff was entitled to re- < /
cover, the fair value of the time lost as a result of the in jury '^^^f****^^
from the date thereof to the day of the adjudication of bank-
ruptcy could not be considered as an element of damage — ^which
requests the court refused to charge.
RUGG, J. Four contentions have been argued in behalf of the
defendant. His other exceptions are treated as waived.
• • •
4. Several questions are raised respecting the effect upon the
plaintiff's right to maintain his action and the damages he may
recover, growing out of the fact that in March, 1904, he was duly
adjudged a bankrupt and the ordinary proceedings were had;
the accident having occurred on the 11th day of July, 1902, and
this action having been begun on the 9th of August, 1902. It is
first urged that the plaintiff is debarred from the right to main-
tain his action by reason of the bankruptcy. The bankruptcy
act (Act July 1, 1898, c. 541, 30 Stat. 565, 566 [U. S. Comp.
St. 1901, p. 3451] ) provides in § 70a that "the trustee * » *
shall * * * be vested by operation of law with the title of
the bankrupt as of the date he was adjudged bankrupt, * * •
to all (5) property which prior to the filing of the petition he
could by any means have transferred, or which might have been
levied upon and sold under judicial process against him ; * * •
(6) rights of action arising upon contracts or from the unlawful
taking or detention of, or injury to his property. ' ' This action,
having been brought for damages to the person of the plaintiff,
could not by any means have been transferred by him. Rice v.
Stone, 1 Allen, 566 ; Robinson v. Wiley, 188 Mass. 533, 74 N. E.
923 ; Flynn v. Butler, 189 Mass. 377-389, 75 N. E. 730. It was
not property nor a right of property until it was reduced to a
judgment. Stone v. Boston & Maine Railroad, 7 Gray, 539. It
could not be reached by trustee process. Thayer v. Southwick,
8 Gray, 229; Wilde v. Mahaney, 183 Mass. 455, 67 N. E. 337,
62 L. R. A. 813. Nor could it be reached in equity by a cred-
itors' bill. Bennett v. Sweet, 171 Mass. 600, 51 N. E. 183 ; BiU-
ings V. Marsh, 153 Mass. 311, 26 N. E. 1000, 10 L. R. A. 764, 25
Am. St. Rep. 635. The liability being disputed, the claim was not
544 ADMINISTRATION
subject to taxation and therefore could not be levied upon or
reached by the assessor or tax collector, Deane v. Hathaway, 136
Mass. 129, Thus it appears that the claim which the plaintiff was
i prosecuting against the defendant is not properly described by
\any of the phraseology in subsection 5, Subsection 6 is limited'
to rights of action arising upon contract or respecting property
and does not include an action of tort for personal injuries. It
is not, and never has been, the policy of the law to coin into
money for the profit of his creditors the bodily pain, mental
anguish or outraged feelings of a bankrupt. None of the federal
or English bankruptcy acts, nor our own insolvency statutes, have
gone to that length. It has been held that the following actions
do not pass to the trustee or assignee : Malicious prosecution (In
re Haensell [D. C] 91 Fed, 357; Noonan v. Orton, 34 Wis. 259,
17 Am. Rep. 441 ; Francis v, Burnett, 84 Ky, 223) ; slander (Dil-
lard V. Collins, 25 Grat. [Va.] 343) ; seduction of servant (How-
ard V. Crowther, 8 M, & W, 601) ; malicious attachment (Brewer
V, Dew, 11 M. & W, 625) ; deceit (In re Crocket, Fed. Cas. No.
3^402) ; malicious trespass (Rogers v. Spence, 12 CI. & Fin. 700) ;
trespass to ship (Bird v. Hempsted, 3 Day [Conn.] 272, 3 Am.
Dec. 269) ; trespass accompanied by personal annoyance (Rose
V. Buckett [1901] 2 K. B. 449 ; negligence of an attorney (Weth-
ereU v. Julius, 10 C. B. 267). See Tinker v. Colwell, 193 U. S.
473.
It is also urged that the plaintiff is not entitled to recover, as
an element of damage, for the wages which he would have earned
between the date of his accident and his aldjudication in bank-
ruptcy. If the defendant's requests for instructions be construed
narrowly, they were properly refused, for the reason that under
the bankruptcy act property acquired between the date of the
filing of the petition and the date of the adjudication in bank-
ruptcy does not pass. But, looking at the question broadly, the
contention cannot be sustained. The cause of action for which
. the plaintiff was entitled to recover damages on account of the
cpain and suffering which he had endured and was likely to
\endure, as well as his loss of time, was indivisible. Doran v.
"Cohen, 147 Mass. 342, 17 N. E. 647. Moreover, the wages which
the plaintiff might have earned, if not injured, are not strictly
recoverable. The value of his time, while prevented from work-
ing by reason of the negligence of the defendant, is a proper
element to be considered in fixing the damages. Braithwaite v.
Hall, 168 Mass, 38, 46 N. B. 398 ; Whipple v. Rich, 180 Mass.
KINDS OF PROPERTY 545
477, 63 N. E. 5. The personal injury is the gist of the action.
The other elements of damage are incidents only of this main
cause of action. Prayers 8 and 9 were therefore properly refused.
The final question argued was that the plaintiff was not entitled
to recover for debts incurred for physicians ' services, never paid
by the plaintiff, but proved against his estate in bankruptcy or
included in his schedules. A plaintiff in an action for personal/
injury is entitled to recover for reasonable expenditures fori
nursing and physicians' care rendered necessary by the wrong-'
ful act of the defendant. Turner v. B. & M. R. R., 158 Mass.
261, 33 N. E. 520 ; McGarrahan v. N. Y., N. H. & H. R. R., 171
Mass. 211, 50 N. E. 610 ; Atwood v, Boston Forwarding & Trans-
fer Co., 185 Mass. 557, 71 N. E. 72 ; ScuUane v. Kellogg, 169
Mass. 544, 48 N. E. 622. It may be assumed that the bills in-
curred by the present plaintiff for physicians' services would
be barred by his discharge in bankruptcy. This fact, however,
does not prevent the plaintiff from treating such obligations as
debts of honor. It is through no virtue of the defendant that
the plaintiff will be enabled to interpose any defense to the pay-
ment of a reasonable charge for these services for the ameliora-
tion of his suffering, but rather the clemency of the law to his
financial distress. Under these circumstances, the law ought not
to prevent or discourage the exercise of a debtor's conscience
respecting his past indebtedness. See Klein v. Thompson, 19
Ohio St. 569 ; Denver, etc., Co. v. Lorentzen, 79 Fed. 291, 24 C.
C. A. 592.
Exceptions overruled.
In re GAY et al. ^-^^^^^
182 Fed. 260
(District Court, D. Massachusetts. July 16, 1910)
DODGE, District Judge. At the time of the bankruptcy an
action of tort was pending in the Massachusetts Superior Court,
which the bankrupts had brought against the firm of Tucker,
Anthony & Co. The declaration alleged that the bankrupts, who
were dealers in stocks and bonds, had been induced to buy cer-
tain bonds from the defendants, who were in the same business,
at prices greater than their value, by false and fraudulent rep-
resentations made by the defendants regarding facts materially
affecting the value of the bonds. Damages were claimed for al-
ii. & A. Bankruptcy — 35
546 ADMINISTRATION
leged losses to the plaintiff resulting from the purchase. The
question, to be decided is: Were the bankrupts' rights of action
asserted in this suit ''rights of action arising * * * from
* * * injury to [the bankrupts'] property," so as to pass to
the trustee under § 70a (6) of the bankruptcy act (Act July 1,
1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]).
Assuming that the bankrupts were in fact induced, as their
declaration alleged, to pay $239,594.44 for bonds having no such
real value, by means of false and fraudulent representations such
as the declaration set forth, I think it may be said, as a matter
of fair and reasonable construction, that their right of action
arose from injury to their property. If those were the facts,
they lost by the deceit practiced upon them money then belong-
ing to them which might otherwise have been available to meet
their obligations. This construction of clause 6 has the support
of a recent decision by the District Court for the Northern Dis-
trict of New York. In re Harper, 175 Fed, 412. A trustee in
bankruptcy was there allowed to set off against a claim for
goods sold and delivered a counterclaim for damages to the
bankrupt, caused by the creditor's deceit in connection with the
sale. The bankrupt's claim for damages by the deceit was held
to have passed to the trustee, because, if deceived as the bank-
rupt alleged, his money had thereby been lost and his estate
diminished. It. was held (p. 421) that the trustee might there-
fore establish the claim for damages as a counterclaim before
the referee, unless some other mode of establishing and liquidat-
ing it should be directed.
It is urged on the bankrupt's behalf that the court does not ap-
pear in Re Harper to have held the right of action for the deceit
a right which may be properly described as a right arising from
injury to the bankrupt's property, but to have held only that it
passed to the trustee because made assignable by the New York
Code. Such a right of action, it is said, is not assignable under
the law of Massachusetts, and the decision is, therefore, of no
authority here. But if the right of action dealt with in Re
Harper belonged to the trustee only because assignable in New
York, and not because a right arising from injury to the bank-
rupt 's property, it belonged to him, not by virtue of subdivision
6 of § 70a but by virtue of subdivision 5, or, in other words, be-
cause it was property transferable by the bankrupt, or which
might have been sold under judicial process against him. See
KINDS OF PROPERTY 547
Remington, Bankruptcy, § 1019, p. 569. And the court expressly
says in Re Harper, at p. 418 of 175 Fed. :
"It is self-evident, I think, that rights of action for unliqui-
dated damages for false and fraudulent representations, * * *
whether assignable or not, are not regarded as property under
subdivision 5."
The decision, as I understand it, holds the trustee entitled to
the right of action only because subdivision 6 gives it to him.
The definition of "injury to property" in the New York Code is
discussed, because a definition of words used in subdivision 6,
and the New York decisions bearing upon the Code definition
are quoted only as interpreting and illustrating that definition.
The Code can hardly have been supposed capable of making ' ' in-
jury to property ' ' in subdivision 6 mean something in New York
which it does not mean elsewhere. I am unable to see in this
contention any reason for declining to follow In re Harper.
No other decision has been found which deals with this que^
tion as presented under the present bankruptcy act. Under the
bankruptcy act of 1867 the rights of action belonging to a bank-
rupt which were to pass to his assignee were those ' ' arising from
an unlawful taking or detention or injury to his property."
Rev. St. § 5046. The language used may be regarded as substan-
tially identical, for the purposes of the question under consid-
eration, with that of clause 6. Two decisions under that act are
relied on by the bankrupts. They are In re Crockett, 2 Ben.
514, Fed. Cas. No. 3,402, and In re Brick, 4 Fed. 804. In the
first of these cases the question was whether there w^ere any
assets in existence belonging to a partnership which had been
dissolved. A suit which the partnership had brought to recover
damages for fraudulently and deceitfully recommending a per-
son, to whom it had sold goods, as worthy of trust and confidence,
was held to be not within the description of the assets which
pass to the assignee in bankruptcy. The court said :
"It is not a debt, or a security for a debt, or a right in equity,
or a chose in action, or a right of action for property. Nor is
it a right of action or a cause of action arising from contract. It
is an action of tort for the fraud and deceit, and not an action
on a contract."
The question was not further discussed. In the second case
it was held, largely on the authority of the first, that a pending
suit by the bankrupt for false and fraudulent representations
as to its solvency, made by an officer of a company to which a
548 ADMINISTRATION
firm, whereof the bankrupt was a member, had sold iron, taking a
promissory note of the company in payment, was not a partner-
ship asset, so that failure to include it in his schedules would va-
cate his discharge. The court said that the language of § 5046
did not include causes of action arising ex delicto, a statement
which, as will appear, I must regard as too broad.
Another decision under the act of 1867 (Act March 2, 1867,
c. 176, 14 Stat. 517), also relied on by the bankrupts, is Tufts v.
Matthews, 10 Fed. 609, decided by the Circuit Court in this dis-
trict. In that case the purchaser of a right of action originally
belonging to a bankrupt, from his assignee, sold it to another who
brought suit in his own name. The right of action was for de-
ceit, and the deceit consisted in false representations inducing
the surrender of certain bonds, deposited as security for the
defendant's notes. The defendant's demurrer was sustained,
partly on the ground that the plaintiff could not sue in his own
name, and partly because of the doubt whether the claim was
transferable by the assignee in bankruptcy, or by the purchaser
from him, even if it ever passed to the assignee under the stat-
ute. But the court also undoubtedly held that an action for per-
sonal tort, "such as a fraudulent and deceitful recommendation
of a person as worthy of credit whereby goods were obtained,"
was not a right of action which passed to the assignee under the
statute. 10 Fed. 611.
The case last referred to did not, as has been stated, turn
wholly upon the question whether or not the bankrupt 's right of
action passed to his assignee, nor do I think that I am required
by what was said or decided in either case to hold that this right
of action did not pass. That such a right was not assignable at
common law does not seem to me to settle the question. In some
states such rights of action have been made assignable by statute
(as in the case of New York, above referred to) ; in other states,
not. But the bankruptcy act, in providing among the rights of
action for torts which shall and which shall not pass to the
trustee, has adopted its own line of division, and this does not
necessarily follow any of the distinctions observed elsewhere or
for other purposes. It is recognized as a general principle in
bankruptcy that the right of redress for wrongs to the bank-
rupt's person, feelings, or reputation does not belong to his cred-
itors. A" reason given is that the discretion as to whether such
redress should be sought ought not to be intrusted to any one but
the very person who has received the injury (Lowell, Bank-
KINDS OF PROPERTY 549
ruptcy, § 325) ; a reason which has no application where the re-
dress sought is the recovery of money out of which the bankrupt
has been cheated in a transaction entered into in the ordinary
course of his business. In such a case his money loss is properly
described as resulting directly from the deceit, instead of being
a result merely incidental, remote, or indirect. The damage is to
be classed with damage to property, rather than with damage to
the feelings or person, and the right to recover it, therefore, on
broad grounds, with actions which pass to the assignee, rather
than with those which do not pass. Lowell, Bankruptcy, § 305.
In England an action for false representations ''or other deceit
sounding in damages" passes to the assignee, like actions for
damage to property, real or personal. Lowell, Bankruptcy, § 307.
And see, also, more recent statements of the English law in
Robson, Bankruptcy (7th ed.) 423, and Williams, Bankruptcy
(8th ed.) 211, 212.
As among actions of tort there are some which pass to the as-
signee in bankruptcy and some which do not, it would seem to
be entirely possible that among actions for deceit there may be
some which will pass and others which will not. As in Cutter
V. Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A. 429, an action
for deceit against a lessor for false representations, inducing the
plaintiff to hire from him an infected house whereby the plaintiff
was made sick, the action was said to be " not for the deceit alone,
the naked injuria, but for the damage caused by the deceit, ' ' and
to be properly classed as an action for "damage to the person"
within the meaning of Pub. St. Mass. 1882, c. 165, § 1, because
* ' the nature of the damage sued for, not the nature of its cause,
determines whether an action survives," so in this case, if the
nature of the damage sued for be considered, rather than the
mere deceit which was its cause, it may properly be described as
arising from injury to property within the meaning of clause 6.
The bankrupts contend that an action cannot properly be so
described unless it claims damage to some specific property, real
or personal. This is based on the Massachusetts decisions con-
struing the state statutes regulating the survival of actions. In
those cases the question was whether the action could be called
an action for ' * damage done to real or personal estate ' ' — words
which may well require a narrower construction than the lan-
guage of clause 6. And, of course, the test here is not whether
the action is one which survives under the Massachusetts law.
Lastly, it is urged on the bankrupts' behalf that they have
550 ADMINISTRATION
resold the bonds, or some of them, to customers of their own,
under representations made by them, on their own account, to
the same effect as the representations of which they complain in
the suit referred to, and that any recovery in that suit ought in
justice to belong to them, rather than to the trustee, because they
are not discharged in bankruptcy from such claims as the pur-
chasers of the bonds from them assert against them. If all this
is properly before the court, it is, of course, a sufficient answer
that no such claims can be maintained against them, save for
their own independent deceit or negligence in repeating the rep-
resentations of which they complain.
The order of the referee is approved and affirmed.^'^
V'ii r. !|^->^ In re COLUMBUS BUGGY CO.
r.^ >'" V V^ 143 Fed. 859, 74 C. C. A. 611
'^ }K (Circuit Court of Appeals, Eighth Circuit. March 2, 1906)
r O
'j ' P y' SANBORN, Circuit Judge. By a statute of Oklahoma Terri-
%/^ ^ tory an instrument in writing which evidences the conditional
V tJ" • ®^^^ ^^ personal property and the retention of title in the vendor
c^ ' until the purchase price is paid is rendered voidable at the in-
^ ' ^^^\ stance of innocent purchasers or creditors of the vendee unless it
^y^^^^ is deposited in the office of the proper register. 2 Wilson 's Rev.
^ ' & Ann. St. Okl. 1903, p. 966, § 162. On August 4, 1903, the
Washburn-Lytle Implement Company was adjudged a bankrupt
J upon an involuntary petition by the District Court of the United
States for the Third District of Oklahoma Territory. The trustee
in bankruptcy took from the possession of the bankrupt goods of
the value of about $5,400, which were situated in Oklahoma and
were held by the Washburn company under a contract with the
Columbus Buggy Company, which had not been deposited with
the proper register of deeds. The material terms of this contract
were that the goods should be selected from those of the Colum-
bus company by the Washburn company and should be shipped
and billed to it as agent by the Columbus company at the latter 's
wholesale prices, that the Washburn company might sell the
goods at such prices as it saw fit and that it would pay to the
17 — See Eose v. Buekett [1901], Fed. 828; Fellebrown v. Haywood,
2 K. B. 449; Cleland v. Anderson, 190 Mass. 472; Epstein v. Handver-
75 Neb. 273; Hansen v. Wyman, ker, 29 Okla. 337; First Nat'l Bank
105 Minn. 491; In re Burnstine, 131 v. Lasater, 196 U. S. 115.
KINDS OF PROPERTY S51
Columbus company the wholesale prices less 5 per cent, discount
for the goods if sold in each month by the tenth day of the suc-
ceeding month, that it would keep the property insured for the
benefit of the Columbus company and would bear all expenses of
freight, storage and hauling, that the contract should continue in
force one year and that, unless it was renewed, the Washburn
company would at its expiration return that portion of the mer-
chandise unsold and the Columbus company would repay the
freight which had been paid upon this portion and that all the
goods should be on consignment and the title should remain in
the Columbus company and subject to its order until they were
sold and paid for in cash. The Columbus company properly pre-
sented to the District Court its claim for that part of the mer-
chandise which the Washburn Company held unsold under this
contract and which the trustee had taken at the time of the ad-
judication, and that court denied its petition upon the ground
that the contract evidenced a conditional sale and was therefore
voidable under the statute of Oklahoma. The case is presented
to this court by a petition to revise this ruling.
A conditional sale is one in which the vesting of the title in f
the purchaser is subject to a condition precedent, or in which its /
revesting in the seller is subject to a failure of the buyer to com-
ply with a condition subsequent.
An agreed price, a vendor, a vendee, an agreement of the
former to sell for the agreed price and an agreement of the lat-
ter to buy for and to pay the agreed price are essential elements
of a contract of sale. The contract involved in this case has none
of these characteristics. The power to require the restoration of
the subject of the agreement is an indelible incident of a contract
of bailment. South Australian Ins. Co. v. Randell, L. R. 3 P. C.
101, 108; 2 Kent's Com. *589; Powder Co. v. Burkhardt, 97
U. S. 116, 24 L. ed. 973 ; Sturm v. Boker, 150 U. S. 312, 14 Sup.
Ct. 99, 37 L. ed. 1093. This contract contains a plain stipulation
that the goods are at all times subject to the order of the Colum-
bus company until they are sold and that at the expiration of the
term of the contract the Washburn company wiU return the goods
which remain unsold. It was therefore a contract of bailment for
sale and it was not subject to the statute of Oklahoma regarding
conditional sales. One of the most striking and familiar illus-
trations of its character is given by Chief Justice Gibson in
McCullough V. Porter, 4 Watts & S. (Pa.) 177, 39 Am. Dee. 68,
where he says:
552 ADMINISTRATION
"Were I to put my horse in the custody of a friend, to be sold
for a designated sum, with permission to retain whatever could
be got beyond it, it would not be suspected that I had ceased to
own him in the meantime, or that my friend would not be bound
to return him, even without a stipulation, should he have failed
to obtain the prescribed price. ' '
A contract between a furnisher of goods and the receiver that
the latter may sell them at such prices as he chooses, that he will
account and pay for the goods sold at agreed prices, that he will
bear the expense of insurance, freight, storage and handling and
that he will hold the unsold merchandise subject to the order of
the furnisher discloses a bailment for sale and does not evidence
a conditional sale. It contains no agreement of the receiver to
pay any agreed price for the goods. It is not, therefore, affected
by a statute which renders unrecorded contracts for conditional
sales voidable by creditors and purchasers. The fact that such
a contract provides that the receiver of the goods may fix the
selling prices and may retain the difference between the agreed
prices of the accounting and the selling prices to recompense
him for insurance, storage, commission and expenses does not
constitute the contract an agreement of sale. It still lacks the
obligation of the receiver to pay a purchase price for the goods
and the obligation of the furnisher to transfer the title to him
for that price. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37
L. ed. 1093; John Deere Plow Co. v. McDavid (C. C. A.) 137
Fed. 802 ; Metropolitan Nat. Bank v. Benedict Co., 20 C. C. A.
377, 380, 74 Fed. 182, 185 ; In re Gait, 56 C. C. A. 470, 473, 120
Fed. 64, 67 ; Union Stock- Yards, etc., Co. v. Western Land, etc.,
Co., 7 C. C. A. 660, 664, 59 Fed. 49, 53 ; Keystone Watch-Case Co.
V. Fourth National Bank, 194 Pa. 535, 45 Atl. 328; In re
Flanders, 67 C. C. A. 484, 134 Fed. 560; Martin v. Stratton-
White Co., 1 Ind. T. 394, 37 S. W. 833 ; National Bank v. Good-
year, 90 Ga. 711, 726, 16 S. E. 962 ; Barnes Safe & Lock Co. v.
Bloch Bros. Tobacco Co., 38 W. Va. 158, 164, 18 S. E. 482, 22
L. R. A. 850, 45 Am. St. Rep. 846 ; National Cordage Co. v. Sims,
44 Neb. 148, 153, 62 N. W. 514; Rosencranz & Weber Co. v.
Hanchett, 30 111. App. 283, 286 ; Harris v. Coe, 71 Conn. 157, 41
Atl. 552, 554; W. 0. Dean Co. v. Lombard, 61 111. App. 94, 97;
Norton & Co. v. Melick, 97 Iowa, 564, 566, 66 N. W. 780 ; Len2 v.
Harrison, 148 111. 598, 36 N. E. 567, 569.
The order of the referee which denied the application of the
Columbus Buggy Company and the order of the District Court
KINDS OP PROPERTY 553
which confirmed that order must be vacated, and the case must
be remanded to the court below with directions to grant the peti-
tion of the Columbus Buggy Company for the delivery to it of
all the goods remaining in the hands of the trustee which were
received by him from the bankrupt, and which had been obtained
by the latter from the Columbus company under the contract
between them, and that the trustee also pay over to the Colum-
bus company the proceeds of all goods of this character which
he received, from the bankrupt and has since sold, and it is so
ordered.^®
In re ALLEN
183 Fed. 172
(District Court, E. D. Arkansas, W. D. November 23, 1910)
The Heim Brewery Company filed its intervention for a num-
ber of casks and cases containing empty beer bottles in the pos-
session of the trustee of the estate of the bankrupt, claiming to
be the owner thereof and entitled to the immediate possession.
The claim is based upon the following contract:
* * Contract.
"Little Rock, Ark., April 22, 1910.
"This contract is entered into on this date between the Heim
Brewery of Kansas City, Mo., and Allen & Kirkland, liquor
dealers. Little Rock, Ark. Allen & Kirkland agree to purchase
bottled beer in carload lots, f. o. b. Kansas City, Mo., at the
following prices : Kyffhauser beer, 4 doz. small bottles in cases,
$3.10. Kyffhauser beer, 2 doz. large bottles in cases, $3.10.'
Heim Brewery agrees to allow a rebate of $1.50 for each case
of empty bottles returned to the Heim Brewery, containing
either 4 dozen small, or 2 dozen large bottles, and pay return
freight charges on aU empty bottles to the Brewery in carload
lots. It is mutually agreed that Allen & Kirkland are to pay
the net price only on the bottled beer, but it is distinctly under-
stood and agreed to by Allen & Kirkland that they pay cash
for all cases or bottles not returned to the Heim Brewery, at
the rate of $1.50 per case for either large or small bottles. It
is further agreed that the dating on the first car of beer shipped
18 — See Ludvigh v. Am. Woolen
Co., 231 U. S. 522; Thomas v. Field-
Brundage Co., 215 Fed. 891.
554 ADMINISTRATION
to Allen & Kirkland is for sixty (60) days' credit, and every
car thereafter is to be paid for in thirty days from date of the
arrival of the beer in Little Rock. Heim Brewery agrees to
give Allen & Kirkland five cases of pints free in each car to
aid in drayage and advertising same, and also a two per cent,
discount on all cars of beer they pay for in thirty days from
the arrival of said beer in Little Rock, which includes the first
car shipped.
"[Signed] John Q. .Allen.
"D. 0. Kirkland."
The trustee denied that under the contract the intervener was
the owner of the property, but insists that the property claimed
belongs to the bankrupt's estate.
The cause was submitted upon an agreed statement of facts,
which shows that under that contract the bankrupt bought
large quantities of beer from the intervener; that the beer was
delivered in cases containing bottles and in casks containing
bottles bearing the individual brand and registered copyright
of the intervener; that a part of said casks, cases, and bottles
have been returned ; but that the trustee is now in possession of
a number claimed by the intervener. Upon a hearing before
the referee, he found in favor of the intervener. The cause now
comes before the court on petition for review by the trustee.
TRIEBER, D. J. (after stating the facts as above). On
behalf of the intervener, it is claimed that, until the articles
claimed are paid for by the vendee, it is merely a bailment, and
he is entitled to a return of them, or, at most, that it was an
option to purchase. On the other hand, it is claimed on the
part of the trustee that it was a contract of ' ' sale and return. ' '
A "bailment" is properly defined as being a delivery of
goods in trust upon a contract, express or implied, that the
trust shall be duly executed and the goods restored by the bailee
as soon as the purpose of .the bailment shall be served. 2 Kent,
Com. 558.
On the other hand, a "contract of sale" is when there is an
agreed price, a vendor, a vendee, an agreement of the former
to sell for the agreed price, and an agreement of the latter to
buy and pay the agreed price. An "option to purchase" is
merely an agreement whereby the vendee may, upon compliance
with certain terms and conditions, become the owner of the
property; the vendor giving him that option.
KINDS OF PROPERTY 555
The leading case upon which the intervener relies is Westcott
V. Thompson, 18 N. Y. 363. In that case the contract was for
the sale of beer and provided for the sale of the beer to the
vendee at a certain price. The beer was to be shipped in barrels
and the barrels to be returned to the plaintiff when emptied of
the beer, and if not returned the vendee was to pay for every
barrel not returned the sum of $2, and thereupon become the
owner thereof. On the other hand, in the case at bar, the con-
tract provides that the vendee is to be charged and pay for the
cases and bottles, but in case he wishes to return any of the cases
and empty bottles he is to be allowed a rebate on his bill of $1.50
for each case of empty bottles returned to the intervener.
Is this an option to purchase or a contract of sale and return ?
The distinction between these two forms of agreement has been
aptly pointed out in Hunt v, Wyman, 100 Mass. 198, as follows :
"An option to purchase if he liked is essentially different
from an option to return a purchase if he should not like. In
one case the title would not pass until the option is determined ;
on the other hand, the property passes at once, subject to the
right to rescind and return."
See, also, Guss v. Nelson, 200 U. S. 298, 26 Sup. Ct. 260, 50
L. ed. 489; In re Schindler (D. C), 158 Fed. 458; Hotchkiss
V. Higgins, 52 Conn. 205, 52 Am. Rep. 582; Martin v. Adams,
104 Mass. 262.
Applying this rule to the contract between the intervener and
the bankrupt, it clearly appears that it was not an option to
purchase, but a contract of sale and return, while, on the other
hand, the contract in Westcott v. Thompson was merely an
option to purchase. In the latter case it was optionary with the
vendee to keep the empty barrels and pay the sum of $2 for
each barrel kept by him or to return them. In the case at bar
the bankrupt was charged and promised to pay for the cases
and bottles unless he desired to return the same, and if he did
he was to be paid or given credit on his account therefor the
sum of $1.50 for each ease and bottles therein.
Great stress is laid upon the fact that under the contract the
bankrupt was to pay the net price only on the bottled beer, still
the charge was made against him, and until he returned them he
was liable to the intervener who had a cause of action against
him. In Herryford v. Davis, 102 U. S. 235, 26 L. ed. 160, the
contract between the parties spoke of the cars sold as being
leased until paid for, but notes were executed by the vendee for
556 ADMINISTRATION
the full purchase money. The ears, before they were paid for,
having been seized under execution, the vendor claimed them
as his property, but the court held that calling it a lease did
not make it so, nor was it a conditional sale, but merely an
attempt to retain a lien for the purchase money, and, the same
not having been recorded as required by the laws of the state
of Missouri, it was void as against creditors.
In re Rahilly v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532,
grain was stored in a warehouse with the understanding that it
should be sold by the warehouseman, and when the depositor
would surrender the receipt therefor the warehouseman had the
right to return an equal amount of grain of equal quality or
pay the then market price of the grain. Upon these facts it
was held by Judge Dillon that it was a sale and not a bailment.
The distinction between bailments and sales is clearly shown
by the opinion of that eminent jurist, who carefully reviews
the authorities on that subject.
In Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. ed.
1093, the court held that "a transaction is a 'sale,' as distin-
guished from a * bailment, ' when there is no obligation to return
the specified article." In this case there was no obligation on
the part of the bankrupt to return the property claimed by the
intervener ; but, if he saw proper, he had the right to do so and
receive a credit for the amount specified in the agreement. If
the property had been destroyed by fire or by any other cause,
even if without any fault or negligence on the part of the bank-
rupt, the loss or destruction would still have fallen on him.
This is the rule applicable to contracts of sale and return.
Moss V. Sweet, 16 Q. B. 493 ; Martineau v. Kitching, L. R. 7 Q.
B. 436 ; Schlesinger v. Stratton, 9 R. I. 578.
As this was a contract of sale and return and not a mere
option to purchase, nor a bailment in any sense, the title passed
to the bankrupt, and the trustee is entitled to the possession of
the property.
The finding of the referee will be set aside, and judgment
entered dismissing the intervention, with costs.
KINDS OF PROPERTY 557
In re GOLD "^ '^ iL. ^--'^'""
210 Fed. 410, 127 C. C. A. 142
(Circuit Court of Appeals, Seventh Circuit. October 7, 1913)
The bankrupt, who was a furrier doing a retail business in
the city of Chicago, on or about August 10, 1910, approached
appellants, who were wholesale, furriers in the city of New York,
with a view to securing a line of credit in the purchase of furs.
She represented that she was worth between $5,000 and $6,000
above all her debts, which, she stated to appellants, did not
exceed $1,000. Relying upon her representations, appellants
sold and delivered to her at two different dates furs amounting
in value to the sum of $926.25. After receiving said furs, she
proceeded to conceal the same and, with intent to defraud ap-
pellants, shipped a large part of the same out of Chicago.
Within two months thereafter she was adjudged an involuntary
bankrupt. Then, for the first time^ appellants learned of the
fraud through which she had obtained the goods. In the mean-
time, the trustee took steps to recover the furs so concealed and
shipped out of the city, and did recover a portion of appellants'
said furs, of the value of $425. On learning of said fraudulent
conduct and said bankruptcy proceedings, appellants rescinded
said sales and at once petitioned the court for the return of said
recovered furs or the proceeds thereof to them, the same having
been sold by the trustee pending such proceedings, all of which
steps they took after the fui*s had come into the possession of
the trustee. The matter was heard before the referee, who
found that the trustee's title to said goods, under § 47a (2) of
the bankruptcy act as amended June 25, 1910, was superior to
that of appellants', and dismissed appellants' petition for want
of equity. Thereupon the referee filed with the District Court
a certificate for review, wherein he stated that under the undis-
puted evidence adduced on the hearing of appellants' petition,
"said petitioners [the appellants] were entitled to reclaim said
goods and were entitled to the proceeds of the sale thereof, if,
under the bankruptcy law as amended by the act of June 25,
1910, a vendor of goods who has been induced to sell such goods,
by false and fraudulent representations, can, under any cireum-S
stances appearing in evidence, reclaim such goods from the)
trustee in bankruptcy of the vendee." Upon the hearing upon
said petition for review and the said referee's certificate, the
558 ADMINISTRATION
District Court affirmed the action of the referee in dismissing
said petition. The cause is before us on appeal from that order.
The errors assigned, in substance, resolve themselves into the
one proposition, viz., the court erred in holding that the rights
of the appellants were inferior, under the facts of the case, to
i those of the trustee.
KOHLS AAT, Circuit Judge (after stating the facts as above).
§ 47a (2) of the Bankruptcy Act as the same was amended by
the act of June 25, 1910, reads as follows, viz. :
"And such trustee, as to all property in the custody or com-
ing into the custody of the Bankruptcy Court, shall be deemed
vested with all the rights, remedies, and powers of a creditor
holding a lien by legal or equitable proceedings thereon; and
also, as to all property not in the custody of the bankruptcy
court, shall be deemed vested with all the rights, remedies, and
powers of a judgment creditor holding an execution duly re-
turned unsatisfied."
By the order of the court affirming the referee's action upon
the petition for review, the court in effect held that under the
statute as amended, and under the laws of Illinois as construed
by the courts of that state, the rights of a defrauded vendor
were inferior to those of "a creditor holding a lien by legal or
equitable proceedings," and that the latter has the rights of
a bona fide purchaser for value without notice of the fraud.
The question is one of Illinois law. In support of this proposi-
tion, the trustee cites a number of cases from Illinois, the doc-
trine of which is fully summed up in Van Duzor v. Allen, 90
111. 499. In that case it appears that one Gaston bought of Van
Duzor a threshing machine. Van Duzor claimed that Gaston
was to have given his notes with sureties. Gaston insisted his
notes were to be secured by chattel mortgage on the thresher.
Gaston was given possession without the delivery of security,
and proceeded to thresh for thase desiring his services, for more
than two months, said question of the nature of the security to
be given still remaining unsettled, when judgments against him
were obtained in favor of persons who had rendered services to
him in threshing, upon which judgment executions were sworn
out and placed in the hands of a constable, who levied upon the
thresher. Van Duzor replevied the latter. On the trial of the
replevin suit. Van Duzor was defeated. On appeal the Supreme
Court affirmed the judgment. In its opinion the court said :
KINDS OF PROPERTY 559
'"A bona fide creditor, who, under a judgment and execution,
acquires a lien on property thus situated, occupies the same posi-
tion in all respects as does a, bona fide purchaser. Where the
apparent owner of property thus acquired has the indicia of
ownership and may sell and pass a good title to a purchaser,
without notice, a bona fide creditor may seize the property on
execution and sell it thereunder and pass the title, not only
against the apparent, but also the real owner."
This decision must be construed with reference to the facts of
the case. The question of the rights of a defrauded vendor were
not under consideration. Whatever lien, if any, Van Duzor
possessed as against Allen, was a secret lien and was not made
a condition of the passing of the title. Allen actually had title.
This case states the law of Illinois as it stands today. Further
cases cited by the trustee yi support of this doctrine are Union
Stockyards & Transit Co. et al. v. Mallory, 157 111. 565-566, 41
N. E. 888, 48 Am. St. Rep. 341; Brundage v. Camp, 21 111. 330;
Fawcett v. Osborn, 32 lU. 411, 83 Am. Dec. 278 ; Chicago Dock
Co. V. Foster, 48 111. 507 ; Doane v. Lockwood, 115 111. 490, 4
N. E. 500 ; Butters v. Haughwout, 42 111. 18, 89 Am. Dec. 401 ;
Farwell v. Hanchett, 120 111. 577, 11 N. E. 875.
None of these, however, apply to the facts of the case at bar.
This clearly appears from the decisions of the Illinois courts.
The leading case is that of Schweizer v. Tracy, 76 111. 345, the ^y ^
facts of which are very similar to those of the case at bar. There
the purchaser had obtained the goods through fraudulent repre- ^ff^^
sentations as to his financial circumstances. After possession l^_,i,..^^j^
taken, the goods were levied upon under a writ of attachment
issued against the fraudulent vendee. The defrauded vendors
instituted a suit in replevin in which they were defeated and
the return of the property to the sheriff awarded. Having
failed to return the goods, suit was instituted upon the replevin
bond, in which suit Schweizer was impleaded with the defrauded
vendors. In the lower court judgment went for the plaintiff in
that suit. On appeal the judgment was reversed. In the course
of its opinion the court said :
* * Coming, then, to the conclusion which we do, that had Mack,
Stadler & Co. discovered the fraud practiced upon them whilst/
the goods remained in the hands of the fraudulent vendee, and!
replevied them, they could have successfully maintained their
action, the question is presented, whether the attaching cred- i
iters here, or the sheriff, by virtue of his writ of attachment,
560 ADMINISTRATION
acquired any other or greater title than the fraudulent vendee
possessed. Had the vendee, before the reclaiming of the goods
I by Mack, Stadler & Co., sold them to an innocent purchaser for
'value, no doubt, under the decisions of this court, the purchaser
\would have acquired a valid title to the goods" — citing Jennings
V. Gage et al., 13 lU. 610, 56 Am. Dec. 476 ; M. C. R. R. Co. v.
Phillips et al., 60 111. 190; Young et al. v. Bradley et al., 68
111. 553.
The court thereupon proceeded to explain the language in
Burnell v. Robertson, 5 Gilman (111.) 282, and said:
"That case was a case where a debtor had title to the prop-
erty, and the controversy was between a prior purchaser from
the debtor, who had not obtained possession of the property,
and a subsequent attaching creditor; and in reference to such
a state of facts, the court says: 'lii case of two sales of per-
sonal property, both equally valid, his is the better right who
first gets possession of the property, and the attaching creditor
stands in the light of a purchaser and is to be protected as such. '
That is, the attaching creditor stands in the light of a purchaser,
not necessarily as against the world, but as against another pur-
chaser, the creditor having, by virtue of his attachment, first
obtained possession of the property; thus acknowledging the
common doctrine respecting the sale of personal property, that
a sale without the delivery of possession, is void as against sub-
sequent purchasers and creditors. This is the full import of
that decision. But in the case at bar, the only title of the debtor
is one acquired by fraud and false representations, and voidable
at the option of his vendors. The general expression used in
the case cited is to be understood with reference to the facts of
that case, and is not authority in support of the view, that an
attaching creditor, under the circumstances of such a case as
the present, as against the vendor, stands in the same position as
an innocent purchaser for value."
The court further in said opinion said there was no difference
as to priority of lien between an attachment lienor and an exe-
cution lien, citing Tousley v. Tousley, 5 Ohio St. 78; that the
attachment creditor took no better title than the fraudulent
vendee possessed, and proceeded to hold that the right of pos-
session was in the defrauded vendor and that there was no
liability upon the replevin bond. This case was decided prior
to Van Duzor v. Allen, supra, but has been approved in a num-
ber of subsequent cases. In Walsh v. First National Bank, 228
KINDS OF PROPERTY 561
111. 446, 81 N. E. 1067, the court held that the transferee of a
bill of lading prevailed over an attaching creditor, and says :
* * In such a case an attachment creditor only obtains the rights
which the debtor has in the property at the time of the levy of
the writ. One claiming to be a creditor of another and levying
a writ of attachment is not a hona fide purchaser for a valuable
consideration" — citing, among other authorities, Schweizer v.
Tracy, supra.
The latter case is cited approvingly in Hacker v. Munroe &
Son, 176 111. 394, 52 N. E. 12; King & Co. v. Brown, 24 lU.
App. 579-582; Gould v. Howell, 32 111. App. 349-350; O'Neil v.
Patterson & Co., 52 111. App. 27-33 ; Nonotuck Silk Co. v. Levy,
75 lU. App. 55-58 ; La Salle Pressed Brick Co. v. Coe, 65 lU.
App. 619-622 ; Link v. Gibson, 93 111. App. 433-435 ; Magerstadt
v. Schaefer, 110 lU. App. 171, and other cases. The same rule
of law is laid down in Doane v. Lockwood, supra; Staver &
Abbott Mfg. Co. V. Coe, 49 111. App. 426-431.
From the foregoing it appears that the rule laid down in
Schweizer v. Tracy, supra, is here controlling. The vendors
having at the earliest opportunity rescinded the sale, the title to
the furs in question never passed to the bankrupt,, by reason of
her fraudulent representations to the vendors, therefore the
trustee took no title thereto inasmuch as, under the laws of
Illinois, as construed by the courts of the state, the rights of
the defrauded vendor prevailed over the claims "of a creditor
holding a lien by legal or equitable proceedings thereon."
• • • ,,^,-^
The judgment of the District Court is reversed, with direction
to vacate its decree herein and grant the prayer of the petition
to the amount of $425.
SHERMAN V. LUCKHARDT
67 Kans. 682, 74 Pac. 277
(Supreme Court of Kansas. Nov. 7, 1903)
POLLOCK, J. This case is before us upon rehearing. It
has been fully rebriefed and reargued. The facts will be found
stated in the former opinion of this court. 65 Kan. 610, 70 Pac.
702. The law there declared reads: "A preferential payment
by a debtor to one of his creditors within four months prior to
the former's bankruptcy is not void under clause 'b,' § 60, and
H. & A. Bankruptcy — 36
562 ADMINISTRATION
clause 'e,' § 67, Bankr. Act July 1, 1898, e. 541, 30 Stat. 562,
564 [U. S. Comp. St. 1901, pp. 3445, 3449], though made with
a fraudulent intent on the debtor 's part, if it be accepted by the
creditor without knowledge of such intent, and without knowl-
edge that a preference was intended." The question is, shall
that decision now be upheld or overruled? Prior to the pas-
sage of the national bankrupt act of July 1, 1898 (c. 541, 30
Stat. 544 [U. S. Comp. St. 1901, p. 3418]), in this and other
jurisdictions the estate of an insolvent debtor was often swept
away in an unequal division among his creditors, leaving un-
satisfied demands to harrass and annoy the debtor. The intent
of the lawmaking power in the passage of this act was twofold :
First, the protection and discharge from liability of the bank-
rupt; second, the equal distribution of his nonexempt property
among his creditors in proportion to their provable demands.
Swarts V. Fourth National Bank, 117 Fed. 3, 54 C. C. A. 387 ;
In re GutwilUg, 92 Fed. 337, 34 C. C. A. 379. One of the
methods employed by the insolvent debtor to effect an unequal
distribution of his estate among his creditors before the passage
of this act was, without any fraudulent intent on his part, to
prefer one or more of his creditors over others. Another method
was to transfer a portion or all of his property to one or more
of his creditors to ^he exclusion of all others, with the intent on
his part to hinder, delay, and defraud his other creditors. In
the case first mentioned the transfer was without fraud, and
therefore valid. In the second case, the transfer having been
made without any guilty knowledge on the part of, or participa-
tion in the fraudulent act of the debtor by, the creditor, the
transfer was upheld as valid. To remedy this, among other ex-
isting evils, the act was passed.
In the case at bar it is found by the court, from the evidence,
as follows : " (8) That the said William Luckhardt, in causing the
above-described real estate to be conveyed to this defendant, in-
tended thereby to prefer this defendant over his other creditors.
(9) That the said William Luckhardt, in causing the above-de-
scribed real estate to be deeded to this defendant, intended thereby
to hinder, delay, and defraud his other creditors. (10) That the
said defendant was not a purchaser of said real estate in good
faith and for a present fair consideration." "(12) That upon
the trial of this action the counsel for plaintiff admitted that
the said William Luckhardt, at the time he caused to be con-
veyed to the defendant the real estate hereinabove described,
KINDS OF PROPERTY 563
was indebted to the said defendant in the sum of $1,500, and
that it was further admitted that the said defendant, M. M.
Luekhardt, at the time she received and accepted the convey-
ance of said premises to herself, had no knowledge of the in-
solvency of her husband, William Luekhardt, nor of his inten-
tion or purpose to defraud, hinder, or delay his creditors in the
collection of their debts by means of said conveyance to her of
said real estate ; that the defendant had no knowledge of the
plaintiff's intention to make her a preferred creditor; and that
the reasonable value of the real estate conveyed to her w^as
$1,500."
The contention of the parties to this controversy is this : On
the one hand, the trustee claims the conveyance, under finding
10 of the court, is condemned by, and may be avoided under
the provisions of, clause "e" of § 67 of the act, which provides
"that all conveyances, transfers, assignments or encumbrances
of his property, or any part thereof, made or given by a person
adjudged a bankrupt under the provisions of this act, subse-
quent to the passage of this act and \vithin four months prior to
the filing of this petition, with the intent and purpose on his
part to hinder, delay or defraud his creditors, or any of them,
shall be null and void as against the creditors of such debtor,
except as to purchasers in good faith and for a present fair
consideration; and all property of the debtor conveyed, trans-
ferred, assigned or encumbered as aforesaid shall, if he be
adjudged a bankrupt, and the same is not exempt from execu-
tion and liability for debts by the law of his domicile, be and
remain a part of the assets and estate of the bankrupt and shall
pass to his said trustee, whose duty it shall be to recover and
reclaim the same by legal proceedings or otherwise for the bene-
fit of the creditors."
The defendant contends, under findings 9 and 12, above
quoted, the conveyance was a preference, and having been re-
ceived by the creditor without knowledge on her part of the
insolvency of the debtor, or his intent to hinder, delay, and de-
fraud his other creditoi*s, or to prefer her over other creditors,
it must be upheld. Clause "b" of § 60 of the act reads: "If
a bankrupt shall have given a preference within four months
before the filing of a petition, or after the filing of the petition
and before the adjudication, and the person receiving it, or to
be benefited thereby, or his agent acting therein, shall have had
reasonable cause to believe that it was intended thereby to give
564 ADMINISTRATION
a preference, it shall be voidable by the trustee, and he may
recover the property or its value from such person." Clause
"g" of § 57 reads: "The claims of creditors who have received
preferences shall not be allowed unless such creditors shall sur-
render their preferences." 30 Stat. 560 [U. S. Comp. St. 1901,
p. 3443]. Under these provisions of the act, upon the findings
made by the court, and viewed alone in the light of a preference
only, we are of the opinion the contention of defendant would
prevail, but the condemnation of the act does not end here. The
clauses quoted from § 57 and § 60 treat only the subject of
preferences. No mention is there made of fraud. The law-
making power dealt with the subject of fraud in clause "e"
of § 67 of the act, and, in language so plain, concise, exact, and
unequivocal as to leave no room for doubt or construction,
there inhibited all transfers of the property of an insolvent
debtor made within four months prior to the institution of
bankruptcy proceedings under the act wherein the debtor, with
the intent on his part of hindering, delaying, or defrauding his
creditors, parted with his property regardless of the knowledge
of or participation in such fraud by the creditor. This is a
case of first instance in this state in construing the above pro-
visions of the act. In other jurisdictions a like view of the act
has been reached. Friedman v. Verchofsky, 105 111. App. 414;
Unmack v. Douglsiss (75 Conn. 633), 55 Atl. 12. There are cases
holding a contrary view, Congleton v. Schreihofer et al. (N. J.
Ch.) 54 Atl. 144; Gamble v. Elkin et al. (205 Pa. St. 226), 54 Atl.
782. However, the reasoning employed in these cases, contrary to
the view expressed in this opinion, does not commend itself to our
judgment or meet our approval. Such a construction of the act
would nullify one of its most important and beneficial pro-
visions, and, in so far as the act deals with fraudulent trans-
fers of the property of an insolvent debtor, the law would remain
the same as before the passage of the act ; and this notwithstand-
ing the act prohibits all conveyances, transfers, assignments, or
incumbrances of the property of the insolvent debtor within
four months prior to the filing of the petition in bankruptcy
with the intent and purpose on his part to hinder, delay, or
defraud his creditors, or any of them, ''except as to purchasers
in good faith and for a present fair consideration," in which
case the estate of the bankrupt to be distributed is not dimin-
ished, and also notwithstanding the fact that the act itself avoids
all transfers which might be avoided under existing state laws.
KINDS OF PROPERTY 565
It follows, upon the findings made by the trial court, the
trustee is entitled to judgment in his favor setting aside the
conveyance made. Therefore the former opinion of this court
(65 Kan. 610, 70 Pac. 702) must be overruled, the judgment
below reversed, and cause rem^anded, with direction to enter
judgment in favor of the trustee.
CUNNINGHAM, BURGH, and MASON, JJ., concur.i^
JOHNSTON, C. J., and SMITH and GREENE, JJ., dissent
from the reasoning and conclusions of this opinion for the rea-
sons stated in the majority opinion on the original hearing.
BEASLEY V. COGGINS et ux. / (_ ,^_^
48 Fla. 215, 37 So. 213 '^^.^^^ ^ ^
(Supreme Court of Florida, Division A. July 13, 1904)^7 f'^^f
' The appellant, D. P. Beasley, filed his bill in the Circuit Court JUa^^ia.^'-'^
of Madison county as trustee in bankruptcy of P. S. Coggins,
alleging that the said Coggins was adjudged a bankrupt by the jf^jwr^*-^
United States District Court on July 8, 1902; that he (Beasley)
was duly selected and appointed as trustee in bankruptcy of
and for all the estate of said Coggins, and was then such trus-
tee, as shown by exhibits attached.
The bill alleges substantially that P. S. Coggins, prior to being
adjudged a bankrupt, was engaged in the mercantile business
at the city of Madison, in Madison county, and had been so
engaged for several years prior thereto, and had then contracted
a large amount of indebtedness with various creditors, of about
$12,000.
The bill sets forth an indebtedness to several persons, includ-
ing the Bank of Madison, on several notes, all due on March 8,
1901, and other debts contracted subsequent to March 8, 1901,
and all unpaid and due when the bill was filed; that Coggins,
being so indebted on March 8, 1901, in a large sum of money,
intended a continuance for an indefinite period of his said mer-
cantile business, contemplated the creation of further indebted-
19 — See Jacobs v. Van Sickle, 127 App. 320; Schilling v. Curran, 30
Fed. 62; Wright v. Sampter, 152 Mont. 370; Lehrenkrauss v. Bonnell,
Fed. 196; Underleak v. Scott, 117 122 N. Y. Supp. 866; Clowe v. Sea-
Minn. 136; Coder v. Arts, 213 U. S. vey, 208 N. Y. 496.
223; Sherman v. Luckhardt, 96 Mo.
566 ADMINISTRATION
ness, and was then, on said March 8, 1901, insolvent ; that on said
March 8, 1901, said Coggins and his wife, Lilla F., executed a
deed of certain landed property to W. F. Parramore upon an
alleged and fictitious consideration of $50, and that Parramore
on the same day conveyed said property to Lilla F. Coggins
for an alleged and fictitious consideration of $50 ; that said deeds
were properly recorded on March 9, 1901 ; that the lots so con-
veyed, upon information and belief, are worth $3,500 ; that said
lots of land were on March 8, 1901, the property of P. S. Cog-
gins; that it was the purpose of Coggins, by the recited deeds,
to make a gift of said lots of land to his wife, Lilla F, Coggins,
without any valuable consideration; that said deeds were made,
contrived, and executed of covin and collusion by the parties, to
the end, purpose, and intent that the creditors of Coggins, both
prior and subsequent, should be delayed, defrauded, and defeated
in the collection of their lawful and just debts and demands
against Coggins; and that said deeds are fraudulent and utterly
void, as against the claims and demands of the creditors of
Coggins.
I The bill, among other things, prays a decree declaring said
'deeds to be fraudulent and void against the claims and demands
of creditors; that the real estate thereby attempted to be con-
veyed be sold, and the proceeds paid to the trustee in bank-
ruptcy, to be disposed of in the regular administration of the
estate of the bankrupt. Copies of the deeds are made exhibits
to the bill, and also a copy of the order appointing the com-
plainant as trustee in bankruptcy.
The defendants demurred to this bill on the following grounds,
in substance, viz.: (1) That the bill does not make out a case
entitling complainant to discovery or relief.
(2) That it does not show any judgment or lien upon the
property.
(3 and 4) That it does not show that complainant has ex-
hausted his legal remedies, and that he has a full and adequate
remedy at law.
(5) That the clauses alleging the several deeds were made
to hinder and delay creditors, etc., are demurred to because:
First. The same are impertinent.
Second. That all persons who became creditors after March
8, 1901, had notice of them, and that the trustee cannot claim
said deeds void as to such creditors.
KINDS OF PROPERTY 567
Third. That said deeds can only he avoided, if at all, by
creditors whose claims existed at the date of said conveyances.
Upon a hearing this demurrer was sustained, and from this
order an appeal was taken.
The assignments of error are, first, that the court erred in
making the order sustaining the demurrer to the bill; and, sec-
ond, that the court erred in holding that complainant must allege
and prove a judgment at law before the bill of complaint could
be maintained.
HOOKER, J. (after stating the facts). It does not appear
upon what ground the court below sustained the demurrer to
the bill, but presumably all the grounds were sustained.
The general rule is that, before a creditor can maintain a bill
in equity to set aside a conveyance by his debtor of his real
estate on the ground of fraud, the creditor must reduce his claim
to judgment, or its equivalent, a decree for a balance remaining
after a foreclosure sale of mortgaged property, creating a lien
on such real estate; and, when personal property or equitable
assets are pursued, he must have an execution issued and re-
turned nulla 'bona. Robinson v. Springfield Company, 21 Fla.
203. But does this rule apply to such a suit by a trustee in bank-j
ruptcy ? '
§ 70 of the act of Congress to establish a uniform system of
bankruptcy, passed July 1, 1898 (Act July 1, 1898, c. 541, 30
Stat. 565 [U. S. Comp. St. 1901, p. 3451]), provides: "The
trustee of the estate of a bankrupt, upon his appointment and
qualification, and his successors, if he shall have one or more,
upon his or their appointment and qualification, shall in turn be
vested by operation of law with the title of the bankrupt, as of
the date he was adjudged a bankrupt, except in so far as it is
to property which is exempt, to all * * * (4) property
transferred by him in fraud of his creditors. ' ' In addition to the
foregoing, paragraph "e," § 70- (30 Stat. 566 [U. S. Comp. St.
1901, p. 3452] ), provides: ''The trustee may avoid any transfer
by the bankrupt of his property which any creditor of such bank-
rupt might have avoided, and may recover the property so trans-
ferred or its value from the person to whom it was transferred,
unless he was a honu fide holder for value prior to the date of the
adjudication," etc. § 67e (30 Stat. 564 [U. S. Comp. St. 1901,
p. 3449] ) treats of conveyances, transfers, etc., made by a bank-
568
ADMINISTRATION
ll^
nipt within four months prior to filing the petition, with intent
to hinder, delay, or defraud creditors.
Some of the Federal Courts have found difficulty in reconciling
these sections of the bankrupt act, but it seems to us that the
^,^iews expressed in In re Mullen (D. C.) 101 Fed. 413, text, 416,
I are substantially correct. It is there said that § 70e, 30 Stat. 566
[U. S. Comp. St. 1901, p. 3452], was intended to provide simply
that the trustee in bankruptcy should have the same right to
avoid conveyances as was possessed by creditors, or any of them,
and this with especial reference to the statute of 13 Elizabeth.
Under the bankruptcy act, when one is thereunder adjudged a
I bankrupt, creditors are not permitted to attack fraudulent con-
I veyances of their debtor, made more than four months of the ad-
J judication of bankruptcy; and, if the trustee could not do so,
^,(t-j then the act would constitute "a device to permit fraudulent
J I conveyances to take effect with impunity in case they are success-
"-V^ J-fA fully concealed for the specified four months." Lewis v. Bishop,
\ 47 App. Div. 554, text, 558, 62 N. Y. Supp. 618. It is only by
rnolding that the trustee is subrogated to the rights of creditors
[against a fraudulent conveyance that full effect and operation
'can be given to the statute of 13 Elizabeth against fraudulent
conveyances, from which our statute (§ 1991, Rev. St. 1892) is
substantially taken. In Wall v. Cox, 101 Fed. 403, 41 C. C. A.
408, the second headnote is as follows : * ' A trustee in bankruptcy
seeking to set aside and annul a bill of sale and transfer of prop-
erty previously made by the bankrupt, and alleged to have been
fraudulent under the bankruptcy law, and as against creditors,
may appropriately proceed by bill in equity, and will not be
required to seek his remedy at law. " It is true that the trans-
fer there sought to be set aside was made three days before the
petition of involuntary bankruptcy was filed, and involved a
transfer rendered void, if made to hinder and delay creditors un-
der § 67e of the bankruptcy act. 30 Stat. 564 [U. S. Comp. St.
1901, p. 3449]. But no reason is apparent why the same rule
should not apply to fraudulent transfers covered by the cited
provisions of § 70, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3452].
The case of Piatt, Assignee, v. Matthews (D. C.) 10 Fed. 280,
arose under the bankrupt law previous to that of 1898. A bill
was filed by the assignee to reach property alleged to have been
fraudulently transferred by the bankrupt. It was contended on
demurrer that, as no creditor had a judgment and execution
against the bankrupt, such a bill would not lie. The court held
KINDS OF PROPERTY 569
that, inasmuch as the bankruptcy act vested the assignee with the
title of all property conveyed by the bankrupt in fraud of cred-
itors, the assignee acquired his rights through the act, and not
through what had been done by the creditors. The court over-
ruled the demurrer.
In Bump on Fraudulent Conveyances, § 553, it is stated that,
in order for an assignee in bankruptcy to maintain a bill to set
aside a fraudulent conveyance, it is not necessary that he shall
have a lien on the property, and obtain a return of nulla hona.
In Cady v. Whaling, 7 Biss. 430, Fed. Cas. No. 2,285, an assignee
in bankruptcy filed a bill to set aside a fraudulent conveyance
made before the bankrupt act was passed. It was contended that
such a bill could not be maintained on behalf of general creditors
who had no specific lien. The contention was overruled. The
question is very thoroughly discussed in Mueller, Trustee, v.
Bruss, 112 Wis. 406, 88 N. W. 229, where it is held that the bill
might be maintained, though no judgment at law had been recov-
ered. The. deeds sought to be set aside in the case at bar were x
made about 14 months before P. S. Coggins was adjudged a bank- ^
rupt. At the time they were made he is alleged to have been
insolvent, and the bill shows that some of the debts he owed
at the time of the deed were unpaid and owing when he was
adjudicated a bankrupt. The bill further alleges that the deeds |
of March 8, 1901, from P. S. Coggins to Parramore, and from !
Parramore to Mrs, Coggins, were made without valuable consid-
eration and were voluntary.
In the case of McKeown v. AUen, 37 Fla. 490, 20 South. 556,
this court held that "a voluntary conveyance by one who is
indebted is presumptively fraudulent, when attacked by a judg-
ment creditor upon a debt existing at the time of its execution. ' '
As, in our opinion, a trustee in bankruptcy occupies a relation
similar to that of a judgment creditor, we think that the first
four grounds of the demurrer should have been overruled.
The remaining grounds of the demurrer are directed to the
allegations upon which is founded the prayer of the bill requir-
ing the defendants to answer whether P. S. Coggins on the 8th
day of March, 1901, contemplated the creation of other and fur-
ther indebtedness during the conduct of his mercantile business,
and whether the conveyances from Coggins to Parramore, and
from Parramore to Lilla F. Coggins, were executed and contrived
by the defendants and Parramore of covin and collusion, to the
end, purpose, and intent that such persons as should afterwards
?
570 ADMINISTRATION
become the creditors of P. S. Coggins, in pursuance of his said
intentions to create further indebtedness, should be delayed, hin-
dered, and defrauded of their just and lawful debts and demands.
It is contended, first, that these allegations are impertinent. We
ape not aware of any recognized practice in equity authorizing
a defendant to raise the question of impertinence in a bill by
demurrer. The recognized practice, as we understand it, is to
bring the matter of impertinence to the notice of the court by
motion for a reference or by exceptions. 19 Ency. PI. & Pr. 200,
207, 208, 214; Story's Eq. PI. (10th ed.) § 266 et seq.; Eastham
V. Liddell, 12 Vesey, Jr., 201. But assuming the court might, on
its own motion, refer a bill for impertinence, if the matter was
called to its attention, we, in view of our conclusions, do not
regard these allegations of the bill, or the prayer of the bill in
relation thereto, as impertinent.
Under the two last grounds of demurrer it is contended that
creditors who became such after the deeds from P. S. Coggins
to Parramore, and from Parramore to Lilla F. Coggins, the wife
of P. S. Coggins, were recorded, to wit, after the 9th day of
March, 1901, had constructive notice of said deeds, and therefore
such creditors could not attack said deeds as being voluntary,
and that the trustee in bankruptcy occupies no more advan-
tageous ground than such subsequent creditors.
In the case of Alston v. Rowles, 13 Fla. 118, the rights and
status of subsequent creditors were referred to on p. 136. Justice
Westcott there says : ' ' The doctrine of the Supreme Court of the
United States, as announced in the leading case of Sexton v.
j Wheaton, 8 Wheat. 229, 5 L, ed. 603, and as understood by Judge
Jd^ 1 Story, is that a voluntary conveyance made by a person not in-
'^ debted at the time, in favor of his wife, cannot be impeached by
i.al'jUAA subsequent creditors upon the mere ground of its being volun-
tary. It must be shown to be fraudulent in fact, or to be made
jwith a view to future debts. ' ' The opinion in this case ( Sexton
V. Wheaton) was written by Chief Justice Marshall, and
learnedly discusses the proper construction and effect to be given
the statute of 13 Eliz., dealing with fraudulent conveyances as
regards creditors, and the statute of 27 Eliz., dealing with fraud-
ulent conveyances as regards purchasers. These two statutes are
substantially embraced in §§ 1991, 1992, Rev. St. 1892. This case
and the kindred one of Salmon v. Bennett, 1 Conn. 525, 7 Am.
Dec. 237, are selected in 1 Am. Lead. Cas. 17, as the basis for very
elaborate discussion and annotation. On p. * 40 it is said :
KINDS OF PROPERTY 571
"Against eubsequent creditors, as is .decided in Sexton v.
Wlieatoii, a conveyance is not void unless actually fraudulent.
But there is a little obscurity as to what are the frauds of which
they might take advantage. If the fraud be directed specifically
against subsequent creditors — that is, if a voluntary settlement
be made with a view to becoming subsequently indebted, Avhich
may be inferred from the fact of debts being contracted immedi-
ately after — there is no doubt that the settlement may be avoided
by subsequent creditors. But that is not the only sort of fraud
that may be taken advantage of by subsequent creditors, for it is
clear that if a conveyance be made colorably, with actual intent
to defraud any existing creditor or creditors, it may be avoided
by subsequent creditors ; in other words, that evidence of collu-
sion against existing creditors is sufficient evidence of fraud
against subsequent creditors. Otherwise it would be easy to
evade the statute. The party might pay off those to whom he
is indebted at the time he is making the settlement, by borrow-
ing of others, and then say to these last, 'I did not make the
settlement to defraud you, but to defraud the other persons who
were my creditors. ' " It is stated that the foregoing doctrine is
probably limited to voluntary conveyances which are accompa-
nied, in law, by the presumption of a secret trust for the grantor.
It is further said on p. * 41 : " An intent actually to defraud
creditors is to be legally inferred from the grantor's being in-
solvent at the time, or greatly embarrassed, or so largely indebted
that his conveyance necessarily has the effect to hinder and de-
fraud creditors, * * * and a voluntary conveyance made
under such circumstances may be set aside by a subsequent cred-
itor." In some of the cases referred to in note 1, p. 41, we find
that the registration laws have been regarded as settling the law
to the extent that a subsequent creditor cannot complain of a
voluntary deed of w^hich he has constructive notice, except on
the ground of actual fraud. Cooke 's Lessee v. Kell, 13 Md. 469 ;
Kane v. Roberts, 40 Md. 590. In the last case the headnote states
the lav/ as follows : "A deed fraudulent and void as against the
grantor's antecedent creditors is valid, if recorded, as against
subsequent creditors, when there is nothing in the deed itself,
and no evidence, to show any intent or design to defraud such
creditors." In the case of Walker, Evans and Cogswell v. BoU-
mann, 22 S. C. 512, the court held that a subsequent creditor
could not attack a prior voluntary deed, of which he had notice,
on the ground that it was voluntary, but that he could do so on
572 ADMINISTRATION
the ground that it was made with reference to future indebted-
ness, or other circumstances of fraud other than its being vol-
untary. Also, see Moore v. Blonheim, 19 Md. 172 ; Brundage v.
Cheneworth, 101 Iowa, 256, 70 N. W. 211, 63 Am. St. Rep. 382 ;
Jackson v. Plyler, 38 S. C. 496, 17 S. E. 255, 37 Am. St. Rep. 782.
See, also, the following annotated eases : Jenkins v. Clement, 14
Am. Dec. 706; Hagermaun v. Buchanan, 14 Am. St. Rep. 751,
752 et seq.; Rudy v. Austin, 35 Am. St. Rep. 85 et seq. On
p. 752, 14 Am. St. Rep., supra, the annotator, discussing the
effect of a conveyance as against subsequent creditors, says:
"We apprehend that no general rule can be formulated equally
applicable to all cases, and that such judicial declarations as
have been made upon the subject must be interpreted with ref-
erence to the particular facts of the case in which they were
made. If the subsequent debts were contracted long after the
voluntary transfer was made, the presumption that it might
have been made with a view of contracting them and of defraud-
ing the subsequent creditors certainly becomes exceedingly weak,
and may reasonably be treated as entirely destroyed, unless
other circumstances appear to give it renewed vitality. The evi-
dence may, on the other hand, disclose that the subsequent debts
have merely taken the place of prior ones, or that the debtor has
continued or embarked in a business in which his becoming in-
debted was inevitable, or there may be other circumstances of
the like persuasive character, creating or strengthening the pre-
sumption that, as the transfer was in fraud of prior, it was also
in fraud of subsequent, creditors." Bump on Fraudulent Con-
veyances (4th ed.) §§ 293-296. After a careful examination of
many cases, this doctrine seems reasonable. "We are unable to
^^ , / discover how constructive or even actual notice of the execution
k fjus'-^^l&Ta voluntary deed by a debtor could of itself inform a subse-
quent creditor of the secret purposes of the debtor in making the
deed, of his insolvency, of his intention to contract large debts,
or of his intention to engage in a hazardous enterprise, the risks
of which he was seeking to avoid, or of other fraudulent and
covinous purposes he might entertain, so as to shut off the subse-
quent creditor from attacking the voluntary deed for such or
other sufficient causes. See Diggs v. McCullough, 69 Md. 592, 16
Atl. 453 ; Scott V. Keane, 87 Md. 709, 40 Atl. 1070, 42 L. R. A.
359 ; Baltimore High Grade Brick Co. v. Amos, 95 Md. 571, 52
Atl. 582, 53 Atl. 148. Our opinion is that, in so far as the instant
ease is concerned, where the bill is filed by a trustee in bank-
KINDS OF PROPERTY 573
ruptcy representing all classes of creditors, and where the facts
are such as are here alleged, the bill is not obnoxious to the
demurrer which was interposed.
It is therefore adjudged, ordered, and decreed that the order
sustaining the demurrer be, and the same is hereby, reversed, and
the cause remanded for further proceedings in accordance with
law.
TAYLOR, C. J., and COCKRELL, J., concur.
CARTER, SHACKLEFORD, and WHITFIELD, JJ., concur
in the opinion.2o ^^^^j^ ^^ ^'^ ^-fS
/ ^.,<. ^T^ ^^ ^^^-^-^^
KNAPP V. MILWAUKEE TRUST COMPANY^.^*^ ^ -^^
216 U. S. 545, 54 L. ed. 610, 30 Sup. Ct. ^\2.X^^^^ ^
(United States Supreme Court. March 7, 19i(>y^^'"^''4?_^
Mr. Justice DAY delivered the opinion of the court : _^ ^, "^t/-*-^"
The Standard Telephone & Electric Company, a Wisconsin ^^/ ^
corporation, was adjudicated a bankrupt in the District Court ' ^^^'
of the United States for the eastern district of Wisconsin. Un-/^ ^-L^^o
der its articles of association it was authorized to carry on the ^ -^ ^
business of selling appliances for telephone purposes and operat- A*^*'
ing telephone exchanges. It had established and was operating i^/dUO^
a telephone exchange at the village of Sheridan, Wisconsin, and .. * y_.
was carrying on the business of manufacturing and selling tele-
phone apparatus in the city of Milwaukee, Wisconsin, where it/itt^^^"^
had a stock in trade and trade fixtures. T,he^trastee in banS ^^^ Ji
ruptcy filed a petition to sell all the property of the bankrupt.)
Appellant Knapp, as trustee of certain mortgages given by the-
telephone company, intervened, and asked to have the lien of
the mortgage established as the firat lien on the property andl
satisfied out of the proceeds of the sale. The property was sold/
and the question is as to the lien of these mortgages upon the
fund.
The trustee in bankruptcy answered the petition of Knapp,
trustee under the mortgage, averring that it was a chattel mort-
gage, and fraudulent and void as to creditors, because of certain
agreements contained therein, because it was on after-acquired
20— See Warren v. Moody, 122 U.
S. 132.
574 ADMINISTRATION
property, and because of the failure to jfile an affidavit of renewal,
as required by the Wisconsin statutes. The referee in bank-
ruptcy found the facts, and held the mortgage void. Upon hear-
ing, the district judge reached a like conclusion. 157 Fed. 106.
The Circuit Court of Appeals of the seventh circuit, upon
a.ppeal, affirmed the decree of the District Court, holding the
mortgage void for the reasons set forth at large in the opinion
of the district judge. 89 C. C. A. 467, 162 Fed. 675. * * *
The mortgages in question, which were upon all the property
and estate of the mortgagor, acquired or to be acquired, in con-
nection with or in relation to the business of the mortgagor, con-
tain, among others, the following provisions:
"Nothing herein contained shall be construed to prevent said
first party from carrying on, in the due and regular course, its
said business, and collecting the indebtedness and moneys due
or to become due therein, and applying the same to its own use,
except as hereinafter provided."
The mortgage makes provision for a sinking fund of $2,000
annually, $500 quarterly, out of the proceeds of the business, or,
if necessary, from the general resources; and the mortgage -con-
tains this further provision :
' ' Said first party further agrees that no dividend shall be de-
clared or paid on its capital stock at any time when any portion
of said sinking fund or the interest on said bonds shall not have
been duly provided for, according to the terms of this indenture.
"Provided, however, That said trustee be and he is hereby
empowered and authorized in his discretion, and in case he does
not procure for the sinking fund any of said bonds at par and
accrued interest, upon application in writing by said first party
to waive the making by said party of full or any payment into
or provision for said sinking fund for any quarter year, and in
the event of said trustee electing not to require said first party
to make such payment into or provision for such sinking fund,
the moneys which would otherwise have been placed therein for
the purchase of said bonds as aforesaid shall remain at the dis-
position of said first party, to be divided as dividends, or to en-
large, extend, improve, repair, renew, or rehabilitate its said
described business and property."
It will be seen that under these provisions the mortgagor is
allowed to remain in possession of the property, applying the
proceeds thereof to his own use, except that no dividends shall
be declared or paid without first making provision for the sink-
KINDS OF PROPERTY 575
ing fund and the interest on the bonds, and with this important
proviso, — ^that the trustee under the mortgage may, in his dis-
cretion, in case he does not procure for the sinking fund bonds
at par and accrued interest, upon the application of the mort-
gagor, waive the payment into or provision for the sinking fund
for any quarter year, and, in such case, the moneys which would
otherwise go into the sinking fund for the purchase of bonds
shall remain at the disposition of the mortgagor, to be distributed
as dividends, or to be used for the benefit of the business and
property in the manner described. * * *
While there was a finding that no intentional bad faith was
shown, still we agree with the Court of Appeals and the district
judge that, under the law of Wisconsin, as construed by her high-
est court, such conditions as were contained in these mortgages
rendered them fraudulent in law and void as to creditors. Mer-
chants' & M. Sav. Bank v. Love joy, 84 Wis. 601, 55 N. W. 108
Bank of Kaukauna v. Joannes, 98 Wis. 321, 73 N. W. 997
Charles Baumbach Co. v. Hobkirk, 104 Wis. 488, 80 N. W. 740
Franzke v. Hitchon, 105 Wis. 11, 80 N. W. 931 ; Durr v. Wildish,
108 Wis. 401, 84 N. W. 437.
In this case the stipulations of the mortgages practically per-
mitted the mortgagor to dispose of the property for his own bene-
fit, except that it must make certain provisions for a sinking
fund and interest on the bonds; and, with the consent of the
trustee, no provision need be made for the sinking fund or inter-
est, and the moneys which otherwise would have been placed
therein for the purchase of bonds might be applied for the bene-
fit of the mortgagor, whether as dividends or for the benefit of
its business and property. Such provisions are clearly within
the Wisconsin decisions, for they permit the mortgagor to have
the benefit of the property, to keep it in his possession, and to
appropriate the proceeds to his own use. The Wisconsin deci-|
sions render such mortgages invalid as to creditors, because the
effect of such provisions is to give the beneficial use of the mort- \
gaged property to the mortgagor in possession, and to make pos- ^
sible the use of the mortgage as a protection against creditors
of the mortgagor when they shall undertake to assert their
rights.
Bjitjt^s said the trustee in bankruptcy may not defend against n /
these mortgages^ It js contended that they are good as between "^N "^s^^
the parties, and that, as to them, the trustee in bankruptcy occu- ^^-a^yj ^
pies no better position than the bankrupt. This question was^v . ^
576 ADMINISTRATION
raised and decided in Security Warehousing Co. v. Hand, 206
U. S. 415, 51 L. ed. 1117, 27 Sup. Ct. Rep. 720, 11 A. & E. Ann.
Cas. 789. That case arose in Wisconsin, and it was therein held
that, under the Wisconsin law, an attempted pledge of property,
without change of possession, was void under the laws of that
state. In that case, as in this one, the question was raised as to
whether the trustee in bankruptcy could question the transaction,
and it was contended that, being valid as between the partieSj ,the_
trustee took only the right and title of the bankrupt. The ques-
tion was fully considered therein, and the previous cases in this
f-^urt were reviewed. The principle was recognized that the trus-
) tee in bankruptcy stands in the shoes of the bankrupt, and that
/ the property in his hands is subject to the equities impressed
( upon it while in the hands of the bankrupt.
^ — But it was held that the attempt to create a lien upon the prop-
erty of the bankrupt was void as to general creditors under the
laws of Wisconsin. Applying § 70a of the bankruptcy act, it was
held that the trustee in bankruptcy was vested by operation of
the bankrupt law with the title of the property transferred by
the bankrupt in fraud of creditors, and also that the trustee took
the property which, prior to the filing of the petition, might have
been levied upon and sold by judicial process against the bank-
rupt. It was therefore held that, as there had been no valid
pledge of the property, for want of change of possession, it could
have been levied upon and sold under judicial process against
the bankrupt at the time of the adjudication in bankruptcy, and
passed to the trustee in bankruptcy.
The principles announced in Security Warehousing Co. v.
Hand, supra, when applied to the present case, are decisive of
[the question here presented. Under the Wisconsin statutes and
decisions of the highest court of that state the conditions con-
tained upon the face of this mortgage were such as to render it
fraudulent in law and void as to creditors, and prior to the filing
of the petition in bankruptcy the property might have been
levied upon and sold by judicial process against the bankrupt.
It is true that in Security Warehousing Co. v. Hand the court
said that the attempted pledge was a ' ' mere pretense, a sham ; ' '
but the courts of Wisconsin have held that such provisions as
are in these mortgages, giving the bankrupt the right to dispose
of the mortgaged property for its own benefit, rendered the con-
veyance fraudulent in law, and therefore void as to creditors.
This brings the conveyance within the terms of the bankrupt act.
KINDS OF PROPERTY 577
as one which the trostee may attaidc^ as conclusively as it would
if fraudulent intent in fact were shown to exist.
In Mueller v. Bruss, 112 Wis. 406, 88 N. W. 229, it was held
that a trustee in bankruptcy could maintain an action to set
aside a fraudulent conveyance, but that the complaint must aver
and the trustee must show that the estate had not sufficient assets
in the trustee's hands to satisfy the claims filed against the
debtor. And it is insisted that a showing of this character is
lacking in the present case. Without deciding that under the
bankruptcy act the answer of the trustee in bankruptcy was
required to make this averment, accompanied by proof, if neces-
sary, it is sufficient upon this point to say that the intervening
petition of the trustee of the mortgage sought to assert a lien,
upon all the property of the bankrupt in the trustee's hands.
The suggestion in appellant's brief, that the trustee in bank-
ruptcy may possibly recover against directors and officers of the
corporation for dereliction of duty, and against stockholders for
unpaid subscriptions and additional liability on their part, pre-
sents no reason why he may not resist an attempt to take all the
available property in his hands to apply on a mortgage void
as to creditors at the time of the adjudication.
We are of opinion, for the reasons stated, that the mortgages
in question are void, and that, under the bankruptcy law, the
trustee can assert their invalidity.
Judgment affirmed.
THOMPSON V. FAIRBANKS
196 U. S. 516, 49 L. ed. 577, 25 Sup. Ct. 306
[See this case given on page 282, ante] ^i
21 — "The question is simply such as to prevent the York Mfg.
whether the York Mfg. Co. has a Co. from asserting its right to re-
right under its conditional sale of move the machinery by virtue of
the machinery to the bankrupt cor- reservation of the title contained in
poration to take the machinery out its contract. * * *
of the premises where it was placed "We come, then, to the question
as against all except judgment, or whether an adjudication in bank-
other creditors, by some specific lien. ruptcy was equivalent to a judg-
There are no judgment creditors in ment, attachment, or other specific
the case, and no attachment has been lien upon the machinery. * * »
levied, and the question is simply We are of opinion that it did not
whether the adjudication in bank- operate as a lien upon the ma.chinerjr,
ruptcy is equivalent to a judgment as against the York Mfg. Co., the
or an attachment on the property, vendor thereof. Under the proTl-
H. & A. Bankruptcy — 37
578 1 ADMINISTRATION
' 3. DISSOLUTION OF LIENS /
HENDERSON v. MAYER
225 U. S. 631, 56 L. ed. 1233, 32 Sup. Ct. 699
(United States Supreme Court, June 7, 1912)
Samuel Mayer owned a plantation in Dooley county, Geoi^a,
which he rented to Joseph Burns for one year. The rent not
having been paid at maturity, Mayer, on November 13, 1908,
made an affidavit in conformity with the statute, and a justice
of the peace thereupon issued a distress warrant, which, on the
same day, was levied upon the cotton, corn, and other products
of the place. The crops found on the premises being, appar-
ently, insufficient to pay what was due, the sheriff, at the same
time, levied upon other property by virtue of § 2795 of the Code
of Georgia, which declares that "landlords shall have a special
lien for rent on crops made on land rented from them, superior
to all other liens except liens for taxes, * * * and shall also
have a general lien on the property of the debtor liable to levy
and sale, and such general lien shall date from the time of
the levy of a distress warrant to enforce the same. ' '
Three days after the levy a petition in bankruptcy was filed
against Bums, the tenant, who was subsequently adjudged a
bankrupt. The trustee, when elected, obtained possession of all
the property seized by the sheriff, and subsequently sold it in
the due administration of the estate. The proceeds of the cotton
and corn were paid over to Mayer, it being conceded that the
sions of the bankrupt act, the trus- coming into the custody of the bank-
tee in bankruptcy is vested with no ruptey court, shall be deemed vested
better right or title to the bank- with all the rights, remedies, and
rupt's property than belongs to the powers of a creditor holding a lien
bankrupt at the time when the trus- by legal or equitable proceedings
tee's title accrued." York Manu- thereon; and also, as to all prop-
facturing Co. v. Cassel, 201 U. S. erty not in the custody of the bank-
344, 350. See 7 Mich. L. Kev. 474, ruptey court, shall be deemed vested
where it is suggested that the mat- with all the rights, remedies, and
ter considered in the case quoted powers of a judgment creditor hold-
above should be considered by Con- ing an execution duly returned un-
gress. satisfied." See 24 Harv. L. Rev.
In 1910, §47a (2) of the bank- 620; In re White's Express Co., 215
ruptey act was Amended by adding Fed. 894 ; Holt v. Henley, 232 U. S,
the following: "and such trustees, 637.
as to all property in the custody or
DISSOLUTION OF LIENS 579
landlord's special lien on the crops had not been affected by the i
bankruptcy proceedings.
]\I^yeralso_claimed that, by virtue of his general lien, he was
entitled to have the balance of the rent paid out of the proceeds
arising from the sale of the other property levied on, and filed
his intervention to secure such an order. The trustee's objection
was sustained by the referee on the ground that the landlord's
general lien was discharged because it had been "obtained by
legal proceedings" or levy made three days before the filing of
the petition in bankruptcy. His ruling was reversed by the Dis-
trict Court (175 Fed. 633). That judgment was affirmed by the
Circuit Court of Appeals without opinion. The case was then
brought here by writ of certiorari, granted at the instance of the
trustee, who claims that under the Georgia Code the landlord had
no lien on tile property prior to the levy of the distress war-
rant, and that whatever right had been acquired by that seizure
was discharged by |67/, which declares that "all levies, judg-
ments, attachments, or other liens obtained through legal pro-
ceedings against a person who is insolvent at any time within
four monthsjprior to the filing of a petition in bankruptcy against
him shall be null and void in case he is adjudged a bankrupt."
Mr. Justice LAMAR, after making the foregoing statement,
delivered the opinion of the court :
The provisions of the bankruptcy act, preventing an insolvent
from giving or the creditor from securing preferences for pre-
existing debts, apply not only to mortgages and transfers volun-
tarily made by the debtor, but also to those preferences which, are
obtained through legal proceedings, whether the lien dates from
the entry of the judgment, from the attachment before judg-
ment, or, as in some states, from the levy of execution after
judgment. But the statute was not intended to lessen rights
which already existed, nor to defeat those inchoate liens given
by statute, of which all creditors were bound to take notice, and]
subject to which they are presumed to have contracted when the^
dealt with the insolvent.
Liens in favor of laborers, mechanics, and contractors are of
this character ; and although they may be perfected by record or
foreclosure within four months of the bankruptcy, they are not
created by judgments, nor are they treated as having been ' ' ob-
tained through legal proceedings," even when it is necessary to
enforce then by some form of legal proceeding. The statutes of
580 ADMINISTRATION
the various states differ as to the time when such liens attach,
and also as to the property they cover. They may bind only
what the plaintiff has improved or constructed; or they may
extend to all the chattels of the debtor, or *'all the property in-
volved in the business." Re Bennett, 82 C. C. A. 531, 153 Fed.
673.
/ In some cases the lien dates from commencement of the work,
/ or from the completion of the contract. In others, prior to levy
^ they are referred to as being dormant or inchoate liens, or as " a
) right to a lien." Re Bennett, 82 C. C. A. 531, 153 Fed. 677;
Re Laird, 48 C. C. A. 538, 109 Fed. 554.22 But the courts, deal-
ing specially with bankruptcy matters, have almost uniformly
held that 1;hese_staiutoiy.4U!efe.rences are not obtained through
legal proceedings, and therefore are not defeated by § 67/, even
1 where the registration, foreclosure, or levy necessary to their com-
pletion or enforcement was within four months of the filing of
the petition in bankruptcy.
Similar rulings have been made where the landlord has only
a common law right of distress. Re West Side Paper Co., 89 C.
C' A. 110, 162 Fed. 110, 15 Ann. Cas. 384. This is often referred
to as a lien, but it is " only in the nature of security. " 3 Bl. Com.
18. The pledge, or quasi pledge, which the landlord is said to
have, is, at most, only a power to seize chattels found on the
rented premises. These he could take into possession and hold
until the rent was paid. Doe ex dem. Gladney v. Deavors, 11 Ga.
84. But before the distraint the landlord at common law has
"no lien on any particular portion of the goods, and is only an
ordinary creditor, except that he has the right of distress by rea-
son of which he may place himself in a better position. ' ' Sutton
V. Rees, 9 Jur. N. S. 456, 1 New Reports, 464, 8 L. T. N. S. 343,
11 Week. Rep. 413. A right fully as great is created by the
Georgia statute here in question. For while giving the owners
of agricultural lands a special lien on the crops, there was no
intention to deprive the proprietor of urban and other real estate
f the^lien for rent which there, as in other states, isj^reated as
,n incident growing out of the relation of landlord and tenant!^
The Code (§2787) expressly ''establishes liens in favor of
landlords." It (§ 3124) gives them "power to distrain for rent
22 — For example see In re Eoeber, liens for material and labor under
121 Fed. 449; Kane Co. v. Kinney, New York law. Cf. Eyeraon &
174 N. Y. 69; In re Grissler, 136 Son v. Smith, 152 lU. 641.
Fed. 754, all with reference to
DISSOLUTION OF LIENS 581
as soon as the same is due. ' ' It declares ( § 2795} jtlmt landlords,
"shall have a general lien on the property of the tenant, liable
to levy" and, sal© * * * which dates from the levy of the
distress waSrant to enforce the same." It is true that prior to
levy it covers no specific property, and attaches only to what is
seized under the distress warrant issued to enforce the lien given
by statute. But in this respect it is the full equivalent of a com-
mon-law distress — the lien of which is held not t& be discharged
by § 67/. Re West Side Paper Co., supra; Austin v. O'Reilly,
2 Woods, 670, Fed. Gas. No. 665.
The fact that the warrant could be levied upon property which
had never been on the rented premises does not change the
nature of the landlord's right, though it may increase the extent
of his security. The statutory restrictions as to date, rank, and
priority may be important in a controversy with other lienhold-
ers, but was whoUy immaterial in this contest between the land-
lord and trustee, where the latter was only representing general
creditors. As against them the landlord had, from the beginning
of the tenancy, the right to a statutory lien, which had com-
pletely ripened and attached before the filing of the petition in
bankruptcy. The priority arising from the levy of the distress
warrant was not secured because Mayer had been first in a race
of diligence, but was given by law because of the nature of th
claim and the relation between himself as landlord and Burns
as tenant. In issuing the distress warrant the justice acted min-
isterially. Savage v. Oliver, 110 Ga. 638, 36 S. E. 54. The sheriff
was not required to return it to any court, and no judicial hear-
ing or action was necessary to authorize him to sell for the pur-
pose of realizing funds with which to pay the rent. Such a lien
was not created by a judgment nor "obtained through legaT
procee^ngs." "
. Decisions to the same effect were made under the bankruptcy
act of 1867 (14 Stat, at L. 522, § 14, c. 176), which dissolved
attachments or mesne process within four months prior to the
filing of the petition. In Austin v. O'Reilly, supra, decided in
1875, it appeared that in Mississippi the landlord had no lien,
but, as in Georgia, was authorized to seize (but by attachment)
the tenant's goods wherever found. Justice Bradley, presiding
at circuit, said that the landlord's right to a distress at common
law was not a strict lien, but ' * being commonly called a lien, and
being a peculiar right in the nature of a lien, * * * the Su-
preme Court of the United States, and most of the District and
582 ADMINISTRATION
vCircuit Courts, have regarded it as fairly to be classed as a lien,
Kvithin the true intent and meaning of the bankrupt act," and
Ihat the statutory attachment being in the nature of a common-
law distress was not nullified or discharged by the bankruptcy
proceedings.
There is nothing in the act of 1898 opposed to this conclu-
sion. On the contrary, its general provisions indicate a purpose
to. continue the same policy, and an intent, as against general
creditors, to preserve rights like those given by the Georgia stat-
ute to landlords, even though the lien was enforced and attached
by levy of a distress warrant within four months of the filing of
the petition in bankruptcy .^3
Affirmed. , "'^^
h^ J^ j}^Q?'S^ V. TITLE GUARANTY & SURETY CO.
i^C ^ , ^^"-^ % 152 Wis. 611, 140 N. W. 348
^*^-^»^ * ^'^"C Supreme Court of Wisconsin. March 19, 1913)
Y py BARNES, J. On July 8, 1911, the plaintiff commenced an
51^ > action against the National Boat & Engine Company and attached
24 its property. On July 14th the attachment was released on a
^ bond conditioned to pay on demand the amount of any judg-
jfju^ j^ ment which the plaintiff might recover. This bond was signed
.A>^ AVyfls surety by the Title Guaranty & Surety Company, the defend-
V^ "t" ant in the present action. Judgment by default was taken in the
^/•^'"'^•^c original action on August 3, 1911. On September 5, 1911, the
t defendant therein was adjudged a bankrupt. This action is
brought against the surety to recover the amount of the judg-
ment secured by plaintiff against the bankrupt.
The substantial question in the case is whether the adjudica-
tion in bankruptcy destroyed the judgment and releasecMthe
sure^ from liability. The answer to this question depends upon
t^e construction that should be placed on §67, subd. '% ' ' of the
bankruptcy act (Act July 1, 1898, c. 541, 30Stat. 564,~5B5" [U. S.
Comp. St. 1901, p. 3449] ; 1 Fed. Stat. Ann. 693). This section
reads as follows: "That all levies, judgments, attachments, or
other liens, obtained through legal proceedings against a person
who is insolvent, at any time within four months prior to the
23_See Hulbutt v. Brown, 72 N. 642; Metcalf v. Barker, 187 U. S.
H. 235; Doe v. Childress, 21 WaU. 165.
DISSOLUTION OF LIENS 583
filing of a petition in bankruptcy against him,2* shall be deemed
uuU and void in case he is adjudged a bankrupt, and the prop-
erty affected by the levy, judgment, attachment, or other lien
shall be deemed wholly discharged and released from the same,
and shall pass to the trustee as a part of the estate of the bank-
rupt, unless the court shall, on due notice, order that the right
under such levy, judgment, attachment, or other Uen shall be
preserved for the benefit of the estate; and thereupon the same
may pass to and shall be preserved by the trustee for the benefit
of the estate as aforesaid. ' '
If this statute is to be read literally, and it is held that the"^
judgment has been wiped out of existence by the proceedings in
bankruptcy, then we think it would have to be conceded that the 1 }
bondsman is absolved from liability. Its undertaking is to pay I
a valid judgment, not one that is void and does not in fact exist. I
If the statute only destroys any lien created by the judgment, and I
simply aims to prevent the judgment creditor from obtaining any / ^
preference or advantage over the general creditors of the bank- 1
rupt by virtue of his judgment, then the adjudication in bank- 1
ruptcy did not discharge the surety.
There are a number of decisions wherein the courts, follow-
ing the language of the statute, have said that the effect of an
adjudication in bankruptcy, within four months after the re-
covery of a judgment against the bankrupt, is to render the
judgment void. In re Richards (D. C.) 95 Fed. 258, and In re
Beals (D. C.) 116 Fed. 530, are typical of the class of cases re-
ferred to. In nearly all of them the same result would have been
reached had the courts held that it was the liens created by the
judgments that had been destroyed, and not the judgments them-
selves. The point presently under discussion was neither in-
volved nor considered in the great majority of these eases, which
are relied upon by the appellant, and therefore they cannot be
accorded any great weight in deciding the question before us.
Congress gets its power to legislate on the subject of bank-
ruptcy from § 8 of article 1 of the Constitution, which empowers
it to pass ' ' uniform laws on the subject of bankruptcies through-
out the United States." It has been held, correctly, we think,
that the '' subject of bankruptcies includes the distribution of
the property of the fraudulent or insolvent debtor among his
24 — This language does not apply De Lue, 91 Fed. 510, to the contrary,
to involuntary bankruptcy alone. In is declared to be erroneous,
re Blair, 108 Fed. 529, where In re
584 ADMINISTRATION
creditors, and the discharge of the debtor from his contracts and
legal liabilities, as well as all the intermediate and incidental
matters tending to the accomplishment or promotion of these two
principal ends." Silverman's Case, 2 Abb. U. S. 243, 245, Fed.
Cas. No. 12,855.
The present bankruptcy act aims to secure an equal and equi-
table distribution of the debtor's property among his creditors,
and to promote that end has in effect provided that no preference
jor advantage may be obtained by one creditor over another by
virtue of any attachment, garnishment, or levy made within four
months of the adjudication in bankruptcy. This is as far as it
was necessary for Congress to go to attain the ends aimed at.
It may well be doubted whether Congress could go to the extent
claimed. A creditor has a right to sue his debtor. State Courts
have jurisdiction of the persons of the parties, if they live therein,
and of the subject-matter of an action on contract brought to
collect a debt. A judgment in such an action is valid when
rendered. Congress can say to the creditor, "You may not ob-
tain any special advantage by virtue of the judgment over other
creditors in the distribution of the bankrupt's estate," and fur-
ther that the creditor may be discharged from his debts, and
that the judgment cannot be enforced against him. But can it
say, for instance, that the judgment is not evidence of the
amount of the indebtedness due from the bankrupt to the judg-
ment creditor? Or that the judgment is unenforceable if the
jbankrupt is not entitled to a discharge under the law? Or that
/the judgment creditor may not proceed against a surety whose
/liability depends on the validity of the judgment, where such
action in no way affects the other creditors of the bankrupt?
Whatever may be the correct answers to these questions, they
pointedly suggest the improbability of congressional intent to
legislate to the extent claimed, and to the extent to which a lit-
eral reading of the statute would lead. It was whoUy unneces-
sary to do so. The judgment of the Wisconsin court was valid
when it was rendered, and the liability of the surety became
fixed at such time. I|_the creditor had any real estate to which,
the lien of the judgment attached, such lien was destroyed by the
adjudication in bankruptcy, because such destruction was neces-
sary to preserve the property for all of the creditors. The same
would be true of the attachment lien if that had continued. If
the bankrupt was discharged, the judgment could not be enforced
against him, because Congress had the right to absolve the bank-
DISSOLUTION OF LIENS 585
rupt from his debts after his property or the proceeds of it were
distributed among the creditors. It was wholly unnecessary to
discharge the surety from the payment of its obligation in orders
to protect either the debtor or the creditors.
Aside from what has been said, there are a number of consid-
erations which warrant the conclusion that the statute aimed at
the lien created by a judgment rather than the judgment itself.
The words "all judgments," found in § 67/ heretofore quoted,
are found in the act under the subtitle "liens," and are found
in connection with the words "levies, attachments, and other
liens, ' ' indicating that it was the lien, rather than the judgment
itself, that Congress intended to reach.
§_63a of the bankruptcy act provides that judgments are prov-
able as claims against the estate of the bankrupt, without regard
to the time of their rendition. Congress certainly did not intend
that a void judgment could be proved as a claim in the bank-
ruptcy proceeding.
Subsection 5 of § 63a provides that judgments rendered after
the filing of the petition in bankruptcy, and before the consid-
eration of the application for the discharge, may be proved
against the estate of the bankrupt, less costs incurred and inter-
est accrued after the time of filing the petition.
Under § 17, judgments in actions for frauds or obtaining
property under false pretenses or for willful and malicious in-
jury to the person or property of another are not affected at
all by a discharge in bankruptcy. Such a judgment is perfectly
valid if entered the day before filing the petition in bankruptcy.
If § 67 is to receive a literal construction, it is obviously incon-
sistent with § 17, because the words "all judgments" would in-
clude one rendered in any of the classes of cases provided for
in said § 17.
§ 905, Eev. St. (U. S. Comp. St. 1901, p. 677), provides that
the records and judicial proceedings of the courts of any state
or territory, when duly authenticated as therein specified, shall
have such faith and credit given them in every court in the
United States as they have by law or usage in the courts of the
state from which they are taken. This statute, in substantially
its present form, was enacted in 1790 ; and it is hardly suppos-
able that Congress intended to amend or partially repeal it by
§ 67/ of the bankruptcy act.
Again, if the words "all judgments" are to be literally con-
strued, they must be held to include judgments rendered in
586 ADMINISTRATION
courts of foreign countries, regardless of treaty stipulations, and
perhaps even judgments in the court in which the bankruptcy-
proceedings are being carried on. We hold that the words ' ' all
judgments" are qualified and defined by their context, and that
it is the lien or preference created by the judgment that is void.
This conclusion is not without support in the authorities. Doyle
V. Heath, 22 R. I. 213, 47 Atl. 213, is a well-considered ca«e
directly in point. The case of In re Richards, heretofore cited,
was appealed, and the Circuit Court of Appeals, in affirming the
judgment, was careful to say that it was the lien of the judg-
ment that § 67/ declared to be void. 96 Fed. 935, 37 C. C. A.
634. In re Pease, 4 Am. Bankr. Rep. 547, is likewise in point.
In this case it is said that § 67/ was incorporated in the bank-
ruptcy act by the conference committee; and the following quo-
tation is made from the report of the House conferees as found
in the Congressional Record, Second Session, Thirty-fifth Con-
gress, p. 7205: "By an addition to § 67, which relates to liens,
the bill has been materially strengthened. * * * in effect,
liens of any description obtained upon the property of a bank-
rupt within four months of the adjudication are made null and
void, except where given for a new and fair consideration to a
person who has no notice of the insolvency or reasonable cause
for inquiry." This quotation would indicate that the authors
of the section had in mind the matter of declaring liens void,
rather than judgments. Other cases holding that judgments
recovered within four months of the adjudication in bankruptcy
are not void are In re Kavanaugh (D. C), 99 Fed. 928; In re
Beaver Coal Co. (D. C), 110 Fed. 630; In re Blair (D. C), 108
Fed. 529. Moreover, the federal Supreme Court has held that
§ 67/ should not receive a literal construction, and in substance
and effect has said that it is the lien of the judgment, and not
the judgment itself, that is destroyed. Metcalf v. Barker, 187
U. S. 165, 174, 23 Sup. Ct. 67, 47 L. ed. 122. Our own court
held in Bank of Commerce v. Elliott, 109 Wis. 648, 85 N. W.
417, that filing a petition in bankruptcy does not prevent a party
from maintaining and prosecuting an action against the bank-
rupt in the state courts, and that the creditor can only defeat
such an action if meritorious by pleading his discharge in the
bankruptcy proceedings.
Holding, as we do, that the judgment was not void, we see no
good reason why the surety should escape liability. The contin-
gency has arisen under which it agreed to respond in damages.
DISSOLUTION OF LIENS 587
The mere fact that plaintiff, by reason of the bankruptcy pro-
ceedings, cannot enforce his judgment against the bankrupt does
not extend immunity to the surety. It agreed to pay when
judgment was rendered against its principal. That event having
taken place, the surety should respond. Wolf v. Stix, 99 U. S.
1, 8, 25 L. ed. 309. Indeedi many of the cases recognize the
right of the creditor to take a judgment, coupled with a per-
petual stay of execution, in order that the event may take place
on which the liability of the surety is made to depend ; and this
court recognized the existence and the propriety of such a rule
in Whereatt v. EUis, 103 Wis. 352, 79 N. W. 416, 74 Am. St.
Rep. 865. The decision in that case is conclusive as to the lia-
bility of the surety here. There is no difference in principle
between the two cases.
Some cases are cited which deal with the effect of a discharge
in the banlnniptcy proceedings. No such question is in the case.
No discharge was either pleaded or proved ; and we infer from
the record that the bankruptcy proceedings had not been wound
up when this case was tried. ^^^.^ ^'^--jU >r^ -A^>
Judgment affirmed. At, ->_<.,.^,,^ WL ^
CLARKE V. LARREMORE ^"^^ ..A, /
3^ "^-^ ^ "^
On January 23, 1899, the petitioner, the owner of certain notes
of Raymond W. Kenney, commenced an action thereon in the 'T'^-^^uj^
Supreme Court of the state of New York. On March 6, 1899, he J^^
recovered judgment for the sum of $20,906.66. An execution,
issued thereon, was by the sheriff of the county of New York - .'
levied upon a stock of goods and fixtures belonging to Kenney-- lf-~-rr^
A sheriff's sale thereof, had on March 15, 1899, realized $12,- ^
451.09. Shortly after the levy of the execution Leon Abbett;
sued out in the same court a writ of attachment against thef
property of Kenney, and caused it to be levied upon the same
stock and fixtures. Immediately thereafter, claiming that the
debt in judgment was a fraudulent one, he commenced in aid of
his attachment an injunction suit to prevent the further en-
forcement of the judgment, and obtained a temporary order
restraining the sheriff from paying petitioner the money received
upon the execution sale. Upon a hearing the Supreme Court
188 U. S. 486, 47 L. ed. 555, 23 Sup. Ct. 363 —^^ -f' -^
(United States Supreme Court. February 23, 1903) ^^ul* t^
^^
.1-:
588 . ADMINISTRATION
decided that the debt was just and honest, and on April 13, 1899,
set aside the restraining order. On the same day, and before
the sheriff had returned the execution or paid the money col-
lected on it, a petition in involuntary bankruptcy against Ken-
ney was filed in the United States District Court for the southern
district of New York, and an order made by the district judge
restraining the sheriff from paying the money to Clarke, the
execution creditor. 95 Fed. 427. Kenney was thereafter ad-
judged a bankrupt, and on November 25, 1899, the plaintiff
having been appointed trustee in bankruptcy, the district judge
entered a further order directing the sheriff to pay the money
to the trustee. 97 Fed. 555. On review, the United States Cir-
cuit Court of Appeals for the second circuit affirmed these orders
of the district judge (45 C. C. A. 113, 105 Fed. 897), and there-
upon a certiorari was granted by this court. 180 U. S. 640, 45
L. ed. 711, 21 Sup. Ct. Rep. 927.
Mr. Justice BREWER delivered the opinion of the court:
The contention of the petitioner is that —
"The sheriff having sold the goods levied on before the filing
\ of the petition in bankruptcy, the proceeds of the sale were the
\ property of the plaintiff in execution, and not of the bankrupt,
at the time of the adjudication, and the trustee, therefore, has
Ino title to the same. ' '
This contention cannot be sustained. The judgment in favor
of petitioner against Kenney was not like that in Metcalf
Bros. V. Barker, 187 U. S. 165, 23 Sup. Ct. Rep. 67, one
giving effect to a lien theretofore existing, but one which, with
f-the levy of an execution issued thereon, created the lien ; and as
judgment, execution, and levy were all within four months prior
to the filing of the petition in bankruptcy, the lien created
thereby became null and void on the adjudication of bankruptcy.
This nuUity and invalidity relate back to the time of the entry
of the judgment, and affect that and all subsequent proceedings.
The language of the statute [67/] is not "when" but "in case he
is adjudged a bankrupt," and the lien obtained through these
legal proceedings was by the adjudication rendered null and
void from its inception. Further, the statute provides that
"the property affected by" — not the property subject to — the
lien is wholly discharged and released therefrom. It is true
that the stock and fixtures, the property originally belonging to
DISSOLUTION OP LIENS 589
the bankrupt, had been sold, but having, so far as the record
shows, passed to a ''bona fide purchaser for value," it remained
by virtue of the last clause of the section the property of the
purchaser, unaffected by the bankruptcy proceedings. But the
money received by the sheriff took the place of that property.
It is said that that money was not the property of the bank-|
rupt, but of the creditor in the execution. Doubtless as betweeni
the judgment creditor and debtor, and while the execution re-l
mained in force, the money could not be considered the property!
of the debtor, and could not be appropriated to the payment of \
his debts as against the rights of the judgment creditor, but, it |
had not become the property absolutely of the creditor. The '
writ of execution had not been fully executed. Its command to
the sheriff was to seize the property of the judgment debtor,
sell it, and pay the proceeds over to the creditor. The time
within which that was to be done had not elapsed, and the execu-
tion was still in his hands, not fully executed. The rights of
the creditor were still subject to interception. Suppose, for in-
stance, there being no bankruptcy proceedings, the judgment
had been reversed by an appellate court and the mandate of
reversal filed in the trial court ; could it for a moment be i
claimed that, notwithstanding the reversal of the judgment, the
money in the hands of the sheriff belonged to the judgment ,
creditor, and could be recovered by him, or that it was the duty
of the sheriff to pay it to him? The purchaser at the sheriff's
sale might keep possession of the property which he had pur-
chased, but the money received as the proceeds of such sale would
undoubtedly belong and be paid over to the judgment debtor.
The bankruptcy proceedings operated in the same way. They
took away the foundation upon which the rights of the creditor,
obtained by judgment, execution, levy, and sale, rested. The
duty of the sheriff to pay the money over to the judgment cred-
itor was gone and that money became the property of the bank-
rupt, and was subject to the control of his representative in
bankruptcy.
It was held in Turner v. Fendall, 1 Cranch, 116, 2 L. ed. 53,
that money collected by a sheriff on an execution could not be
levied upon under execution placed in his hands against the
judgment creditor, and that the latter could maintain an action
against the sheriff for a failure to pay the money thus collected.
A similar ruling was made in New York (Baker v. Ken worthy,
41 N. Y. 215), in which it appeared that a sheriff had collected
590 ADMINISTRATION
money on dn execution in favor of one Brooks; that he returned
the execution without paying the money to Brooks, but, on the
contrary, levied upon it under an execution against Brooks,
and it was held that such levy did not release him from liability
to Brooks. It was said in the opinion (p. 216) :
"The money paid into the hands of the sheriff on the execu-
tion in favor of Brooks did not become the property of Brooks
until it had been paid over to him. Until that was done, the
sheriff could not levy upon it by virtue of the execution against
Brooks then in his hands. ' '
The rule in that state in respect to a levy upon money in the
hands of a sheriff may have been changed, — at least, so far as
an attachment is concerned. See Wehle v. Conner, 83 N. Y. 231.
In Nelson v. Kerr, 59 N. Y. 224, it is said: ''The money col-
lected by the sheriff belongs to the plaintiff. ' ' But in that case
the execution had been returned, and yet the officer had not paid
the money to the execution creditor. See also Kingston Bank v.
Eltinge, 40 N. Y. 391, 100 Am. Dec. 516.
In none of those cases had anything been done to affect the
validity or force of the writ of execution. Whatever was done
was done under a writ whose validity and potency were un-
challenged and undisturbed ; while here, before the writ of exe-
^cution had been fully executed, its power was taken away. Its
\command had ceased to be obligatory upon the sheriff, and the
execution creditor had no right to insist that the sheriff should
further execute its commands.
/■<A different question might. My e arisen if the writ had been
/ fully executed by payment to the execution creditor. Whether
^Ijo*^^'^ \the bankruptcy proceedings would then so far affect the judg-
|Sment and execution, and that which was done under them, as to
^**^ justify a recovery by the trustee in bankruptcy from the execu-
j tion creditor, is a question not before us, and may depend on
many other considerations. It is enough now to hold that the
1>ankruptcy proceedings seized upon the writ of execution while
it was still unexecuted and released the property which was
held under it from the claim of the execution creditor.
The judgment of the Court of Appeals is affirmed.
Mr. Justice WHITE and Mr. Justice PECKHAM dissented.
Sc]
DISSOLUTION OF LIENS 591
In re EESNEK
167 Fed. 574
(District Court, E. D. Pennsylvania. February 9, 1909)
HOLLAND, District Judge. In this case the judgment had
been entered in the Court of Common Pleas of Northampton
county, the levy and sale made, and the money paid over to
Albert H. Resnek on the 9th day of December, 1907, within
four months of the filing of the petition in bankruptcy against
the alleged bankrupts, which took place on the 16th day of
March, 1908, and the adjudication was entered April 16, 1908.
Upon the presentation of a petition, the referee summarily di-
rected Albert H, Resnek to pay over to the trustee in bank-
ruptcy the net proceeds received from the sheriff on the execu-
tion, to which order Resnek excepted, and the question is certi-
fied to this court for determination as to whether the referee,
under the circumstances, had jurisdiction to make this summary
order.
Where, within four months before the filing of a petition in
bankruptcy against £in insolvent debtor, an execution has been
issued and levy and sale made and the proceeds paid over to the
judgment creditor before the filing of the petition, the case does
not fall within the provisions of § 67/ of the bankrupt act (Act
July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p.
3450]), and the lien created by the judgment and levy is not
rendered void by the adjudication. The remedy, if any, the
trustee has against the creditor, is under the provisions of
§§ 60a and 60& of the bankrupt act in a plenary action, where
it wiU be necessary to allege and show that the creditor had
reasonable cause to believe that the bankrupt, by suffering judg-
ment to be taken against him, intended to give a preference.
In re Blair (D. C), 102 Fed. 987; In re Bailey (D. C), 144
Fed. 214. And this is true, even though the proceeds of the
execution are insufficient to satisfy the claim of the judgment
creditor. In re Knickerbocker (D. C), 121 Fed. 1004.
It follows, therefore, that the order of the referee must be
reversed. It is so ordered.
592 - >^^^ 5^'^^ ^"administration
..-^ i/^.^'l'' FIRST NAT. BANK v. STAAKE
^ 't^^ « '^ f 202 U. S. 141, 50 L. ed. 967, 26 Sup. Ct. 580
'>^^ fjb^ t^- (United States Supreme Court. April 30, 1906)
^/^^ V '" This writ of certiorari was allowed to review an order of the
ly^ Circuit Court of Appeals, affirming a decree of the District
T^ y ^r Court in favor of Staake, as trustee in bankruptcy of the estate
^"^ of Chester R. Baird, bankrupt, subrogating him to the rights of
L^ certain creditors, and authorizing him to enforce their attach-
^r 5ir^^> ment liens with like force and effect as the attaching creditors —
^■^i^ \ one of which was the First National Bank of Baltimore — might
•^ P ^ have done had not the bankruptcy proceedings intervened.
%j^\jr^ The facts of the case are substantially as follows: Chester R.
fly. V. Baird, doing business under the name of C. R. Baird & Com-
L- jijS>- pany, and owning certain real estate in Virginia known as the
A. , West End Furnace Company, sold the same, December 7, 1899,
«*■' ±^ to the Roanoke Furnace Company, subject to certain encum-
^ U brances, executed a contract in writing, and received from the
Ibti y furnace company the entire consideration, namely, $500,000, in
./ > the capital stock of the furnace company. Under this contract
f ,/^ of sale the furnace company took immediate possession, but no
h-' I deed to the company was made until November 5, 1900, when a
t^*^ deed was executed and recorded.
Meantime, however, and on October 26, 1900, nine different^
attachments, among them one by the petitioning bank, were sued
out of the hustings court for the city of Roanoke, amounting to
over $40,000, against Baird as a nonresident, and were levied
upon the furnace property. Under the provisions of the law of
/ Virginia the attachments, having been levied before the deed of
the furnace property had been executed and recorded, the at-
taching creditors acquired, as against Baird and the furnace
company, a lien on the properties attached.
Within four months after the levy of the attachments, namely,
December 24, 1900, Baird was adjudicated a bankrupt in the
District Court for the eastern district of Pennsylvania, and on
January 2, 1901, the District Court for the western district of
Virginia assumed ancillary jurisdiction of such property as
was located in Virginia. On December 29, 1900, the Roanoke
Furnace Company was also adjudicated a bankrupt. On March
26, 1901, Staake was appointed trustee of Baird 's estate, and
y*'
DISSOLUTION OF LIENS 593
on June 29, 1901, John M. N. Shimer was appointed trustee of
the Roanoke Furnace Company,
It was further agreed that the deed of November 5, 1900, froni^
Baird to the Roanoke Furnace Company, was a valid convey
ance to a purchaser in good faith for a then fair consideration
and was not affected by the bankruptcy proceedings.
The proceedings in question here were instituted by a peti-
tion filed by Staake, entitled both in the cases of Chester R.
Baird and the Roanoke Furnace Company, averring that under
the laws of Virginia the rights of the attaching creditors were
superior to those of the furnace company, and that as to them
the property attached was the property of Baird; but that, by
reason of his insolvency and of the fact that these attachments
had been levied within four months preceding the filing of the
petition in bankruptcy, such attachments were nuU and void,
unless the court should order them preserved for the benefit of
the estate. He therefore prayed that they be decreed null and
void as regards plaintiffs, but that they be preserved for the
benefit of petitioner.
The bank demurred to this petition, and also answered, deny- P
ing that its attachment was null and void, and also denying the I
right of the court to enter an order preserving the attachment''
for the benefit of the petitioner; and alleging that respondent'
is entitled to the benefit of the attachment, said property when
sold by an interlocutory order having realized enough to pay
said attachment, as weU. as all prior liens.
Shimer, trustee for the Roanoke Furnace Company, also an- /
swered, praying that, if the attachment be continued for the
trustee of Baird, the petitioner should be required to abate a
large claim which he filed against the estate of the Roanoke
company, by the amount of said attachments.
Upon a hearing before the District Court, that court overruled |
the demurrer to Staake 's petition, and authorized him to enforce j
the attachment liens for the benefit of the estate. 126 Fed. 845. /
The Court of Appeals affirmed this action (66 C. C. A. 547, 133
Fed. 717), and the bank petitioned this court for a writ of
certiorari, which was granted.
Mr. Justice BROWN, after making the foregoing statement,
delivered the opinion of the court :
At the time these attachments were levied, the title to the
property in question stood in the name of Baird, and the attach-
H. & A. Bankruptcy — 38
594 ADMINISTRATION
ing creditors, by their levies, secured a preferential lien upon
the property, not only as against Baird, but also as against the
furnace company, which received a deed to the property Novem-
ber 5, 1900, after the attachments had been levied. These at-
tachments, however, were annulled by the filing of a petition in
I bankruptcy against Baird within four months after the attach-
Wents were levied, and if the case stood upon this fact alone
[there could be no doubt that the property would pass to the
trustee of the furnace company, discharged of the lien of the
attachments. We are not concerned here with any conflicting
rights of the two trustees, Staake and Shimer, since they were
both appointed receivers of the Roanoke Furnace Company, and
the only claim made by Shimer now is that, if the attachments
be continued, the petitioner Staake be required to abate his
claim against the estate of the furnace company by the amount
of these attachments. It is therefore unnecessary to consider
whether, if the attachments were annulled, the property would
pass unencumbered to the trustee of the furnace company, since,
as stated by the district judge, the demurrer to the petition is
intended merely to raise the question whether the trustee of
Baird 's estate or the attaching creditors shall have the benefit
of the attachments.
This depends upon the peculiar terms of § 67 of the bankrupt
act, which provides as follows:
' ' § 67/. That all levies, judgments, attachments, or other liens
obtained through legal proceedings against a person who is
insolvent, at any time within four months prior to the filing of
a petition in bankruptcy against him, shall be deemed null and
void in case he is adjudged a bankrupt, and the property affected
by the levy, judgment, attachment, or other lien shall be deemed
wholly discharged and released from the same, and shall pass
to the trustee as a part of the estate of the bankrupt, uidess the
court shall, on due notice, order that the right under such levy,
judgment, attachment, or other lien shall be preserved for the
benefit of the estate; and thereupon the same may pass to and
shall be preserved by the trustee for the benefit of the estate as
aforesaid. And the court may order such conveyance as shall
be necessary to carry the purposes of this section into effect :
Provided, That nothing herein contained shall have the effect
to destroy or impair the title obtained by such levy, judgment,
attachment, or other lien, of a bona fide purchaser for value
DISSOLUTION OF LIENS 595
who shall have acquired the same without notice or reasonable
cause for inquiry."
§ 67c, which also treats of liens created by attachments on
mesne process, and provides for their dissolution, in the last
clause declares that — "if the dissolution of such lien would
militate against the best interests of the estate of such person,
the same shall not be dissolved, but the trustee of the estate of
such person, for the benefit of the estate, shall be subrogated toj
the rights of the holder of such lien, and empowered to perfect
and enforce the same in his name as trustee, with like force and
effect as such holder might have done had not bankruptcy pro-
ceedings intervened."
Thjs section (67/) makes two distinct provisions for the dis-
position ijl.JLhe_ property of an insolvent attached within four
months prior to the filing of a petition in bankruptcy against
him. First, such attachments shall be declared null and void,
and the property affected shall be deemed released, and shall
pass to the trustee of the estate of the bankrupt ; or second, the
court may order that the right acquired by the attachment shall
be preserved for the benefit of the estate. In the first case the
whole property passes free from the attachment. In the second,
so much of the value of the property attached as is represented
by the attachments passes to the trustee for the benefit of the
entire body of creditors ; that is, * ' for the benefit of the estate, ' '
— in other words, the statute recognizes the lien of the attach-
ment, but distributes the lien among the whole body of creditors.
The first provision contemplates the attachment of property
to which the bankrupt has the complete, legal, and equitable
title, which, as soon as the attachment is dissolved, passes at
once to the bankrupt's trustee as part of his estate. The second
provision evidently does not apply to this, as there is no object
in preserving the lien of the attachment for the benefit of the
estate, since, under the first clause, the entire value of the prop-
erty attached passes to the trustee, free from the attachment.
The second clause contemplates property in which the bankrupt
has an interest which has been secured to attaching creditors
by the levy of the writ, but which might have passed to another^
person, as, for instance, a purchaser under an unrecorded deed,
but for the fact that the attaching creditors had acquired a prior
lien thereon. In such case the statute recognizes the validity
of the lien, but preserves it for the benefit of the entire body of
creditors, by reason of the fact that the attachment was dis-
596 ADMINISTRATION
solved as a preferential lien in favor of the attaching creditors,
by the institution of proceedings in bankruptcy.
In the present case Baird had contracted to convey the prop-
erty to the Roanoke Furnace Company, possession had been
taken, and the consideration paid, but the deed was not actually
executed and recorded until after the attachment had been
levied. Hence, under the Virginia statute, the validity of which
is not questioned, the lien of the attachment took precedence of
the deed, and would have remained a prior lien, had it not been
1 for the institution of the bankruptcy proceedings within four
I months. This dissolved the attachment, and, had the case rested
here, the property would have apparently passed to the furnace
company, or to its trustee in bankruptcy, Shimer; but at this
point the court, under the second proviso of § 67/, interposed
and recognized the lien of the attachment; not, however solely
for the benefit of the attaching creditors, but for the benefit of
Baird 's estate. Shimer made no objection, and the court de-
clined to express an opinion as to his rights.
This is one of the very contingencies provided for by the sec-
ond clause of the section, which apparently vests in the court
a certain discretion with regard to the preservation of the right
acquired under the attachment or other lien. In this case the
court recognized the validity of the lien, the trustee of the fur-
nace company making no objection to this; but the attaching
creditors insist that, as the lien was acquired for their own
benefit, they should not be required to share with the general
creditors of Baird 's estate.
Their argument is based upbn the theory that the second clause
was not intended to apply to liens acquired upon the estate of
third parties, but to property which would have passed to
Baird 's trustee had the attachment not been levied. In other
words, that the bankruptcy court has nothing to do with the
property, since it really did not belong to the bankrupt, and
would have passed to his vendee if the attachments had not been
levied upon it. Indeed, the opinion especially finds that "had
valid attachments not been levied, the property would have
, passed to the trustee of the Roanoke Furnace Company."
, To what extent liens obtained by prior judicial proceedings
/ shall be recognized is a matter wholly within the discretion of
Congress, It might have validated all such liens, even though
* obtained the day before proceedings were instituted. It might
probably have invalidated all such liens whenever obtained. It
DISSOLUTION OF LIENS 597
took a middle course, and invalidated all liens obtained through
legal proceedings within four months prior to the filing of the
petition, but at the same time preserved to the general body of
creditors, as against third parties (such as purchasers under an
unrecorded deed), such liens as attaching creditors had secured
upon property which would have passed to the subsequent pur-
chaser in case the attachment had not been levied. It is true
that the attaching creditors are thereby deprived of the fruits)
of their diligence, but the same thing would have happened had
the attachment been levied upon property to which the bankrupt
had the whole and undisputed title, or of which he had made a
fraudulent conveyance. As remarked by the district judge,*
"In cases where the bankrupt makes a valid conveyance, or
where his fraudulent vendee makes a valid conveyance, the pur-
pose of the law is worked out by preserving and enforcing the \
liens of the attaching creditors for the pro rata benefit of aU/
the creditors." [126 Fed. 847.] '
§ 67/ is merely carrying out the general purposes of the act,
of securing to the creditors the entire property of the bankrupt,
reckoning as part of such property liens obtained by attaching
creditors against real estate which had been transferred to an-
other, though no deed had been actually executed and recorded.
The argument that § 67/ in question here refers only to liens
upon property which, if such liens were annulled, would pass
to the trustee of the bankrupt, we think is unsound, since that
contingency is amply provided for by the prior clause of the
section annuling all such liens and providing that property af-
fected thereby shall pass to the trustee as a part of the estate.
Under the argument of the attaching creditors in this case, the
subsequent clause would be entirely unnecessary. This clause
evidently contemplates that attaching creditors may acquire
liens upon property which would not pass to the bankrupt if
the liens were absolutely annulled, and therefore recognizes
such liens, but extends their operation to the general creditors.
Had no proceedings in bankruptcy been taken, doubtless thisi
property would have been sold for the benefit of the attaching!
creditors.
The general rule relied upon by the bank in this case, that
the words "property of the bankrupt" mean only the property
to which the bankrupt is beneficially entitled, and do not include
property to which he has only a bare legal title, is perhaps justi-
fied by our decision in Hewit v. Berlin Mach. Works, 194 U. S.
598
ADMINISTRATION
296, 48 L. ed. 986, 24 Sup. Ct. Rep. 690. But the extent to
which the bankruptcy court shall recognize the rights obtained
by creditors upon property attached as the property of the
bankrupt, though in fact such property had been conveyed by
an unrecorded contract, is a matter solely within the discretion
of Congress. The liens acquired in this case were liens upon
property which, as to attaching creditors, was the property of
the bankrupt, and Congress may lawfully insist that it shall be
reckoned as a part of his estate, and pass to the trustee. As
remarked by the Court of Appeals : ' ' The rule that the trustee
takes the estate of the bankrupt in the same plight as the bank-
rupt held it is not applicable to liens which, although valid as
to the bankrupt, are invalid as to creditors." [66 C. C. A. 550,
133 Fed. 720.]
If the interest of Baird in this property were sold solely for
the benefit of the attaching creditors, it would obviously result
in a preference to those creditors over the general creditors of
his estate, and in fraud of the bankruptcy act, which is designed
to secure equality among all creditors.
The judgment of the Court of Appeals is affirmed.^^
25 — Mr. Justice Harlan, Mr. Jus-
tice White, and Mr. Justice Peck-
ham dissented.
— Construction of 67c and 67f.
— ' ' § 67c declares that all liens
obtained by suit in law or in
equity, including an attachment upon
mesne process or a judgment by con-
fession begun within four months be-
fore the filing of the petition in
bankruptcy, shall be dissolved by
the adjudication if it appear that
said lien was obtained or permitted
while the debtor was insolvent, and
that its existence and enforcement
will work a preference. This clause,
it would seem, recognizes a prefer-
ence obtainable through an attach-
ment, acquired upon mesne process
pursuant to a suit or proceeding at
law or in equity, the condition being
that the attachment shall have been
made while the debtor was insolvent,
and its existence and enforcement
will so operate; that is, as a prefer-
ence.
' ' § 67f provides that all levies,
judgments, attachments, or other
liens obtained through legal proceed-
ings against a person who is insol-
vent at any time within four months
prior to the filing of the petition in
bankruptcy, shall be null and void
in case he is adjudged a bankrupt,
and that the property affected there-
by shall be wholly discharged and
released from the same. It has been
held and determined that subdivi-
sion 'c' is repugnant to the provi-
sions of subdivision 'f, ' on the same
subject, and that the latter provi-
sions are controlling. In re Kichards,
96 Fed. 933, 935, 37 C. C. A. 634;
Bear v. Chase, 99 Fed. 920, 40 C. C.
A. 182. We quote from the opinion
in the former case:
" 'These two subdivisions, "c" and /
"f," in our judgment, are plainly!
antagonistic and irreconcilable. The^
former saves a lien obtained through
legal proceedings begun within four
months unless it was obtained and
9u
MUTUAL DEBTS AND CREDITS
4. MUTUAL DEBTS AND CREDITS , C^XA^'ciL
fv<t.
MUTUAL DEBTS AND CREDITS
LIBBY V.
104 U. S
(United States Supreme Court
HOPKINS ^TS^ T^t..^^ ^
303, 26 L. ed. 769 ^T^ fP ^d^^ ^
ed. 769
October term, 1881)
r
Error to the Supreme Court of the state of Ohio, t^'^^^'^'^^^^^^ru^^^l^ -^
The suit was brought in the Superior Court of Cincinnati, bj- \ ^^ ^
A. T. Stewart & Co., of which firm the plaintiffs in error are / y^j*^**^
the survivors, against Lewis C. Hopkins and wife, and Isaac
M. Jordan, trustee in bankruptcy of Hopkins.
It appears from the record that A, T. Stewart & Co., mer-
chants, of the city of New York, loaned, June 6, 1866, Hopkins,
a merchant of Cincinnati, Ohio, $iQ!?AOO, and took his promis-
sory note of that date therefor, payable on demand with interest
from date, to secure the payment of which he executed and
delivered to them several mortgages on real estate in Cincinnati ?^vmjl.
and its vicinity. Both before and after that date he bought of
ah, 194 Fed. 785, 114 C. C. A.—, No.
2,013, just decided.
permitted while the debtor was in-
solvent, or the creditor had reason-
able cause to believe such insolvency,
or the lien was sought and permitted
in fraud of the provisions of the act.
The question of the pecuniary condi-
tion of the debtor and knowledge
upon the part of the creditor are in-
fluential in determining the validity
of the lien so obtained. But sub- reading of all
division "f " is broader in its scopp, enacted in -pari
and avoids all liens obtained through
legal proceedings within the time
stated against a person who is in-
solvent, within the meaning of the
subdivision, irrespective of knowl-
edge on the part of the creditor of
the fact of insolvency, and irrespect
ive of the question whether the ob-
taining of the lien was in any way
suffered and permitted by the deb-
tor. It avoids all liens obtained I
through legal proceedings against a '
person who is insolvent within four
months before the filing of the peti-
tion.' • ^
' ' See, also, Cook v. Bobinson et
' ' Notwithstanding the repugnancy
of subdivision 'c' to subdivision 'f, '
and that the provisions of the latter
are controlling, those of the former
still remain for the purpose of in-
terpretation, as the intendment of
the act must be gathered from a
its pi^visions as
materia. So read-
ing the provisions as they relate to
a preference, we find that a prefer-
ence may not only consist in the
bankrupt's procuring or suffering a
judgment to be entered against him
or making a transfer of his prop-
erty within four months of the filing
of the petition in bankruptcy, but
also in the creation of a lien by way
of attachment, or the confession of
a judgment within four months of
the filing of the petition, the exist-
ence and enforcement of which will
work a preference. ' ' Folger v.
Putnam, 194 Fed. 793,
600 ADMINISTRATION
them large quantities of goods, and as a matter of convenience
kept with them two accounts, — one a cash and the other a
merchandise account. Theywere his bankers. All his remit-
tances were sent to them and credited to him in the cash account.
By drafts thereon he paid his debts for merchandise to them
and other New York merchants, and in order to replenish it he
borrowed the $100,000 above mentioned, and it was carried to
his credit in that account. On May 4, 1867, he paid on his note
$25,000. On Nov. 12, 1867, he remitted to Stewart & Co.,
$10,000, on Dec. 27, 1867, $17,000, on the 28th of the same
month, $10,000, and on the 30th, $48,025. He directed these
remittances to be applied to the payment of his note and to be
credited thereon. It is now no longer disputed that the first
three of these remittances were so applied. The last two, with
the interest thereon, constitute the sum now in controversy.
On Jan. 1, 1868, Hopkins suspended business, insolvent. At
that time he owed A. T. Stewart & Co., $231,515 on account,
and unsecured. His liabilities to others amounted to more than
$500,000. A petition in bankruptcy was filed against him Feb-
ruary 29. He was adjudicated a bankrupt March 30. On April
30 Jordan was appointed trustee.
As to the foregoing facts there is no dispute.
In August, 1868, on what day the recof3 does not show,
Stewart & Co. commenced this suit for the foreclosure of the
mortgages, claiming as due the full amount of the note, less the
payment of $25,000.
'^ The answer, besides other defenses not pertinent to any con-
tention now raised, averred that Hopkins had paid on the note,
not only the said sum of $25,000, but also the remittances above
mentioned, making the total amount paid thereon $110,025;
and, after alleging that said payments were made in fraud of
the bankrupt act, demanded, by way of counterclaim, a judg-
ement against Stewart & Co. therefor.
The reply admitted that Hopkins requested Stewart & Co. to
credit the remittances on his mortgage debt, and averred that
they were held subject to his order, and continued to be so held,
up to the time when the rights of Jordan, trustee, attached,
subject to such law of set-off as is provided in the bankrupt act.
It nowhere appeared in the pleadings that Hopkins was in-
debted to the plaintiffs on any unsecured claim, or in any other
way, except upon the note for $100,000. No unsecured debt of
Hopkins was pleaded as a set-off or otherwise.
MUTUAL DEBTS AND CREDITS 601
The Superior Court found that the mortgages were valid, and
the first lien on the premises therein described, and that there
was due thereon, including interest, the sum of $75,957.06. It
rendered a final decree that unless that sum with interest be
paid within one hundred and eighty days therefrom to Stewart
& Co., the mortgaged premises should be sold.
The court further found that when Hopkins made the last
two remittances, of_$10,000 and $48,025, respectively, it was
with the intent and the express instruction in writing to Stewart
& Co. to apply them in discharging the mortgage claim; that
Stewart & Co, refused to do so, but assumed, without his au-
tEioHty or consent, to apply and did apply them to his credit
on the general account against him for merchandise; and that
Stewart & Co. had no right to make such application; and that
the remittances remained in their hands as his moneys from
the several days of their payment until Feb. 29, 1868, when the
title of Jordan as trustee attached thereto. It also found that the
said two several sums were not subject to any claim of set-off
or cross-demand, or of mutual debts or credits, on the part of
Stewart & Co., under § 20 of the Bankrupt Act, or otherwise.
The court, therefore, rendered a decree in favor of Jordan,
trustee, against Stewart & Co., for $58,025, the aggregate of
the last two remittances, with interest, amounting in all to
$75,981.36.
The case was carried, by the i)etition in error of Stewart &
Co., and the cross-petition in error of Jordan, trustee, to the
Supreme Court of Ohio, by which the decree of the Superior
Court was afiirmed.
Stewart & Co. thereupon brought the case here by writ of
error. Some of the members of the firm have died, and Libby
and another are its surviving members.
Mr. Justice WOODS, after stating the facts, delivered the
opinion of the court.
The only question to which our attention is directed by the\
plaintiffs is that of set-off under the twentieth section of the act j
of March 2, 1867, c. 176 (14 Stat. 517), which is as follows:
f"In all cases of mutual debts or mutual credits between the
parties, the account between them shall be stated, and one debt
set off against the other, and the balance only shall be allowed
or paid, but no set-off shall be allowed of a claim in its nature
not provable against the estate; Provided, that no set-off shall
602 ADMINISTRATION
be allowed in favor of any debtor to the bankrupt of a claim
purchased by or transferred to him after the filing of the peti-
tion." This provision was in force at the time of the trial, and
is now substantially incorporated in § 5073 of the Revised
Statutes.
The contention of the plaintiffs is that they were entitled un-
der this section to set off an unsecured account due them from
Hopkins against the $58,025 remitted to them by him with direc-
tions to credit it on his mortgage debt, and which they refused
so to apply.
Waiving the difficulty that they have not pleaded that account
as a set-off, we shall consider the question made by them. That
account is a claim provable against the bankrupt estate, and it
was not purchased by or transferred to them after the filing
of the petition in bankruptcy. The controversy is, therefore,
r^edueed to this issue : Were that account and the money trans-
l mitted by Hopkins to them, and held and not applied by them
\to the mortgage debt, mutual credits, or mutual debts which
I could be set off against each other under the twentieth section
I of the Bankrupt Act?
The plaintiffs insist that the term "mutual credits" is more
comprehensive than the term "mutual debts" in the statutes
relating to set-off ; that credit is synonymous with trust, and the
trust or credit need not be money on both sides ; that where there
is a deposit of property on one side without authority to turn
it into money, no debt can arise out of it; but where there are
directions to turn it into money it may become a debt, the reason
being that when .turned into money it becomes like any other
mutual debt. They say that the first of the two remittances
under consideration is not proved to have been other than money,
but as it was only $10,000 its application to the note could not
be required. The larger remittance was in drafts, and their ap-
plication could not be required. But there was authority to turn
them into money, and that to get the money on them it was
necessary that the drafts should be indorsed by the plaintiffs,
and that the indorsement to and collection by them put the
money received in the same plight as if the drafts had been sent
to them for collection. We cannot assent to these views, and
they receive but little supjyort from the adjudged cases.
Ex parte Deeze (1 Atk. 228) arose under the twenty-eighth
section of the statute 5 Geo. II, c. 30, which provides that" when
it shall appear to the said commissioners [in bankruptcy] or
MUTUAL DEBTS AND CREDITS 603
the major part of them, that there hath been mutual credit
given by the bankrupt and any other person, or mutual debts
between the bankrupt and any other person, at any time before
such person became bankrupt, the said commissioners, or the
major part of them or the assignees of such bankrupt's estate,
shall state the account between them, and one debt shall be set
against another, and what shall appear to be due on either side
on the balance of said account, and on setting such debts against
one another, and no more shall be claimed on either side re-
spectively." In that case, a packer claimed to retain goods not
only for the price of packing them, but for a sum of £500 lent
to the bankrupt on his note. Lord Hardwicke determined that
he had such right on the ground of mutual credits, holding that
the words "mutual credits" have a larger effect than "mutual
debts," and that under them many cross-claims might be al-
lowed in cases of bankruptcy, which in common cases would be
rejected.
But this ruling was subsequently made narrower by Lord
Hardwicke himself, in Ex parte Ockenden (id. 235), and was
in effect overruled in Rose v. Hart, 8 Taunt. 499. In that case
trover was brought for cloths deposited by the bankrupt pre-
viously to his bankruptcy, with the defendant, a fuller, for the
purpose of being dressed. It was held that the defendant was
not entitled to detain them for his general balance for such
work done by him for the bankrupt previously to his bankruptcy,
for there was no mutual credit within that section. And the
court declared that the term "mutual credits" in the act meant
only such as must in their nature terminate in debts.
The rule established in this ease, as to the nature of the cred-
its which can be the subject of set-off, has been declared in other
cases. Smith v. Hodson, 4 T. R. 211 ; Easum v. Cato, 5 Barn. &
Aid. 861. The effect of the authorities is, that the term "mutual
credits" includes only such, where a debt may have been within
the contemplation of the parties.
These authorities make it clear that, even under the Bank-
rupt Act of 5 Geo. II, the plaintiffs would have no right to the
set-off claimed by them. And they lose sight of the controlling
fact that the money and the drafts which they turned into
money were remitted, with express directions to apply them on
a specific debt. Without the consent of Hopkins they could
never- be changed into a debt due to him from the plaintiffs,
and that consent has never been given.
604 ADMINISTRATION
Whether or not he had the right to direct the application is
immaterial. There was no legal obstacle to the application as
/K directed. The fact that he gave the direction imposed on the
/ plaintiffs the obligation to apply the money as directed, or to
{ return it to him.
^^ They had no better right to refuse to make the application and
/ to retain the money and set off against it the debt due to them
^from Hopkins, than if they had been directed to pay the money
on a debt due from him to another of his creditors, or than they
\ had to apply to the payment of his debt to them money which
\ he left with them as a special deposit.
^ Hopkins sent them the money and drafts, upon the faith and
trust that they would be applied according to his instructions.
The refusal so to apply them did not change the relations of the
parties to this fund, nor make that a debt which before such re-
fusal was a trust. To so hold would be to permit a trustee to
better his condition by a refusal to execute a trust which he had
assumed. Winslow v. Bliss (3 Lans. (N. Y.) 220) and Scam-
mon V. KimbaU (92 U. S. 362), cited by the plaintiffs to sup-
port their contention, are cases where a bank or banker was
allowed to set off the money of a depositor against a debt due
from him to the bank. The answer to these authorities is that
the relation between a bank and its general depositor is that of
debtor and creditor. When he deposits moneys with the bank,
it becomes his debtor to the amount of them. Foley v. Hill,
2 H. L. Cas. 28 ; Bank of the RepubUc v. MiUard, 10 Wall. 152 ;
BuUard v. Randall, 1 Gray (Mass.), 605. When, therefore, he
becomes indebted to the bank, it is a case of mutual debt and
mutual credit, which may well be set off against each other.
But in this case there was no deposit. The relation of banker
and depositor did not arise, consequently there was no debt.
WTien A. sends money to B., with directions to apply it to a
debt due from him to B., it cannot be construed as a deposit,
ipeven though B. may be a banker. The reason is plain. The con-
\ sent of A. that it shall be considered a deposit, and not a pay-
/ment, is necessary and is wanting.
Another answer to the contention of the plaintiffs is found
in the language of the twentieth section of the Bankrupt Act
of March 2, 1867, c. 176, which differs materially from that *of
the twenty-eighth section of 5 Geo. II, c. 30. In our act the
terms "credits" and "debts" are used as correlative. What is
a debt on one side is a credit on the other, so that the term
MUTUAL DEBTS AND CREDITS 605
' ' credits ' ' can have no broader meaning than the term ' ' debts. ' '
"We j5nd no warrant in the language of the section or its context
for extending the term "credits" so as to include trusts. Gen^
erally we know that ''credit" and. "trust" are not synonymous,
{grais. They have distinct and well-settled meanings, and we see
no reason why they should be confounded in interpreting the j
twentieth section of the Bankrupt Act.
T.o authorize a set-off there must be mutual credits or mutual.,
debts. The remitting of certain money assets by Hopkins to the
plaintiffs, to be applied by them according to his instructions,
did not make them his debtors, but his trustees. So that there
were in the case no mutual credits or debts. The indebtedness
was all on the side of Hopkins. The plaintiffs owed him noth-
ing. They held his money in trust to apply it as directed by
him.
They refused to make the application as he directed. They
held it, therefore, subject to his order. They continued so to
hold it until the rights of the trustee in bankruptcy attached,
and until he sought to recover it by his counter-claim filed in
this case.
The only contention of the plaintiffs set up in this court is
that the Supreme Court of Ohio approved of the action of the
Superior Court of Cincinnati, in refusing to allow the plain-
tiffs to set off the unsecured debt due to them by Hopkins against
funds intrusted to them by him for an entirely different pur-
pose. We are of opinion that the decision of the Superior Court
was correct. The judgment of the Supreme Court of Ohio must,
therefore, be affirmed.^^* ^ ^^ ti^.ji^j U/^^-*-^
Ex parte WHITING— Ee DOW et al. ^^^^^--^^ >*^
2 Low. 472 C «*-«•--'
— Ee DOW et al.;*^*^
472 zo^^j
(District Court, Massachusetts. March, 1876) <'-»a
LOWELL, J. The facts, as I understand them, are, that in<i»'**^ ' '
1874 the firm of Dow^Hunt & Co., the bankrupts, of which firm -f ^ f,^
A. C. Cushing was a partner, borrowed $3,000 of a savings bank,
for which they, as a firm, and Cushing and the petitioner, Whit- 'oU-*-*-^^'^
ing, individually, gave their joint and several promissory note, vf.^
This jQote the petitioner paid to the bank in full, after the failure >/
of Dow, Hunt & Co., but before their bankruptcy. The parties
diflerlh their mode of looking at this note. The petition repre-
2ca See Morris v. Windsor Trust
Co., 213 N. Y. — , 106 N. E. 753.
606 ADMINISTRATION
sents it as signed by Dow, Hunt & Co., and Gushing, as prin-
cipals, and by the petitioner as surety, while the answer repre-
sents it to be the note of Dow, Hunt & Co. as principals, and
Oushing and the petitioner as co-sureties, and alleges that the
money went to the firm exclusively. Upon the face of the note
11 should suppose that the answer puts the contract correctly,
/ and I shall so consider the case for the purposes of the present
\ decision, though it is a point upon which evidence outside of
\the note is of course admissible. In 1875, the petitioner lent
$1,396 to the firm of Dow, Hunt & Co., and Cushing transferred
to him eight shares of the capital stock of the Hingham Steam-
boat Company as collateral security, which Whiting promised to
return on payment of the $1,396 with interest. This debt was
overdue and unpaid at the time of the bankruptcy. This stock
is worth more than $1,396 and interest, and the assignee has
offered to pay the amount of that debt upon a reconveyance of
the stock. The question is, whether Mr. Whiting can hold the
surplus proceeds of the shares by way of set-off against Cush-
ing's other debt to him, for contribution as co-surety of the note
above mentioned.
I have had occasion more than once to look carefully at the
cases on the subject of mutual credit in bankruptcy; and while
the decisions in this country agree entirely, as far as they go,
with those made in England, the subject has been more fully
considered in that country, as is natural, the bankrupt law hav-
ing been in force there for a much greater length of time. The
leading eases on the subject are Rose v. Hart, 8 Taunt. 499;
Young V. Bank of Bengal, 1 Moore, P. C. 150, much more fully
reported 1 Deacon, 622; Naoroji v. Chartered Bank of India,
L. R. 3 C. P. 444; Astley v. Gumey, L. R. 4 C. P. (Ex. Ch.)
714. All those cases should be studied. The result of theiajs,
that a creditor who at tHe time of the bankruptcy,_Jias Jn Jhis
hands goods or chattels of the bankrupt with a power of sale,
or choses in action with a power of collection, may sell those
goods or collect those claims, and set them off against the debt
the bankrupt owes him ; and this, although the power to sell or
to collect were revocable by the bankrupt before his bankruptcy ;
or, in other words, the occurrence of bankruptcy in such cases
gives a sort of lien which did not exist before. This has been
the law ever since Rose v. Hart, 8 Taunt. 499. Before that de-
cision, it was admitted even in cases where there was no power
of sale. Young v. Bank of Bengal, itbi supra, adds this limita-
MUTUAL DEBTS AND CREDITS 607
tion, and this only, that if the right to sell the pledge does not
arise until after the bankruptcy, then there is no set-off for
the surplus; for the reason that the assignee might redeem in-
stantly, before any such power existed, and the creditors shall
not be prejudiced by any failure or neglect to redeem; or, to
put it in another way, that the rights of the parties are fixed
at the date of the bankruptcy.
I have not overlooked the fact that in Young v. Bank of
Bengal a good deal is said about the agreement to return the
surplus. In this case there is an agreement to return the shares
when the debt is paid. I do not consider the case cited to stand
on this ground, but on that already mentioned, that the credit
did not exist at the date of the bankruptcy. See that case ex-
plained by Parke, B., one of the judges who decided it, in Alsager
V. Currie, 12 M. & W. 751, and by the judges in the late cases
above cited. I apprehend that, when shares are conveyed in this
way as collateral security, the law implies a promise to return
them on the payment of the debt, and its expression cannot prop-
erly affect the case. In all the cases there has been either an
express or an implied promise by the agent or other person hav-
ing the property, that he would faithfully account for it and
pay over its proceeds; but this does not prevent a set-off in
bankruptcy. And the weight of authority is that a promise of
this sort does not bar a set-off, either under the ordinary stat-
utes or under the bankrupt act, unless the property has been
intrusted to the agent for a particular purpose inconsistent with
such an application of the surplus, so that this would be a fraud
or breach of trust : see Key v. Flint, 8 Taunt. 21 ; Buchanan
V. Findlay, 9 P. & C. 738, for cases of this sort; and, for the
general rule, Comfroth v. Rivett, 2 M. & S. 510 ; Eland v. Carr,
1 East, 375; Atkinson v. Elliott, 7 T. R. 378.
In this case, the debt of $1,396 was overdue and unpaid, and
by a statute of Massachusetts Mr. Whiting had a right to sell
the shares after giving a certain notice. This law enters into
the contract of the parties ; and though there is no evidence of a
power of sale conferred by Mr. Gushing (the form of the trans-
fer was not put in evidence), yet they will be taken to have
understood that there would be a power of sale in accordance
with the statute. On the day of the bankruptcy. Gushing was
indebted to the petitioner for one-half the note of the firm actu-
ally paid by his co-surety, the petitioner, two weeks or more be-
fore that time. This makes out a case of mutual credit upon the
608 ADMINISTRATION
authorities cited and the others which have followed them: a
debt due from Gushing to the petitioner, and choses in action
of Gushing 's, with a present power of sale in the petitioner's
hands.
Petition granted. ^
y
In re HARPER
^1f
175 Fed. 412
(District Court, N. D. New York. January 4, 1910)
RAY, District Judge. On the 26th day of February, 1908, an
involuntary petition in bankruptcy was filed against the above-
named bankrupt, Howard E. Harper, by Peninsular Paint &
Varnish Gompany, and this petition alleged that such company
was a creditor of said Howard E. Harper. March 12, 1908, said
Harper filed a voluntary petition in bankruptcy, and filed sched-
ules in which he states that said Peninsular Paint & Varnish
Gompany is a creditor to the amount of about $3,500, but also
sets forth that the said company is indebted to him in the sum
of $6,500. The nature of this last-mentioned alleged indebted-
ness will be referred to later. On his voluntary petition Harper
was adjudicated a bankrupt on the 16th day of March, 1908, and
thereafter, and on the 27th day of March, 1908, the two proceed-
ings were consolidated, and Harper was adjudicated a bankrupt
under the involuntary petition, also without answer or objec-
tion. No issue was raised as to the validity of the claim of the
Peninsular Paint & Varnish Gompany by Harper or any of his
creditors. After adjudication and consolidation such proceed-
ings were had that a trustee was duly appointed. He qualified
and entered on the discharge of his duties. Thereafter the said
company, hereafter called the "Peninsular Gompany," filed its
duly itemized and verified claim with the referee. It is in due
form, and is a valid proof of claim on its face. Gertain cred-
itors, at the first meeting of creditors, filed objections thereto;
but, for the purpose of electing a trustee, it was temporarily
allowed, with the understanding that later the trustee should
file objections, so as to test the validity of the claim. On the
29th day of July, 1908, the trustee filed his petition for the re-
examination of such claim of the Peninsular Gompany. Sep-
tember 23, 1908, said company moved for an order quashing the
MUTUAL DEBTS AND CREDITS 609
objection filed by such creditors and dismissing the said petition
of the trustee. The motion was based upon the petitions and
proceedings for adjudication, the schedules of the bankrupt, the
proof of claim of the Peninsular Company, the objections thereto,
the said petition of the trustee, certain testimony given by the
bankrupt on his examination in the proceedings, and on the
petition filed by the trustee for a settlement of the estate of
such bankrupt. The referee denied the motion to quash the
objections and dismiss the petition of the trustee to re-examine
the claim of said Peninsular Company, and this proceeding for
a review of that decision follows:
The claim of the Peninsular Company, amounting to ,$3,391.17,
after deducting payments and credits for discount, shortage,
and merchandise returned between October 10, 1906, and October
23, 1907, is for goods, wares, and merchandise sold and, delivered
to said Harper between October 13, 1906, and July 18, 1907,
"of the reasonable value and stipulated price of $6,272.87, no
part of which has been paid, except the sum of $2,881.70, leaving
a balance due, owing, and unpaid of $3,391.17, a statement of
which account is hereto annexed and made a part of this proof ;
that said debt exists upon an open account and became due on
the 5th day of June, 1907, that day being the average due date
of the items of said account. " * * *
A statement of items is annexed as referred to in the claim.
The objections filed by the creditors contain no denial of any '
allegation of the claim, but set up counterclaims alleged to exist
in favor of Harper against said Peninsular Company connected
with and growing out of the same transaction or transactions set ^
forth in the claim. * * *
The affidavit of Harper, referred to in such objection and an-
nexed thereto, so far as material, reads as follows:
' ' Rensselaer County, City of Troy — ss. :
"Howard E. Harper, being duly sworn, says that he is the
bankrupt above named, and that the claim existing in his favor
against the Peninsular Paint & Varnish Company, which claim cp-
is scheduled as an asset of the bankrupt estate herein, consists ^^
in substance of the following items: '-,, /
"First. Damages sustained by deponent by reason of the ,
false and fraudulent representations made by said Peninsular \
Paint & Varnish Company to deponent, by which deponent was }
induced to engaged in business in the city of Troy, N. Y., in or
about the month of August, 1906, as the local representative of
H. & A. Bankruptcy — S9
*x
610 ADMINISTRATION
said Peninsular Paint & Varnish Company in the sale of the
goods manufactured by said company. Said representations
were in substance to the effect that said company had business
in this locality amounting to $20,000 per year. Said representa-
Ition was false, and was known to be false by said company when
it was made, and deponent relied upon such representation in
making the contract, which was then made for the purchase by
deponent of goods made by said Company. Deponent paid to
said company about $2,300 for the first car load of paint men-
tioned in said contract. The purchase price of the second car
load of paint mentioned in said contract amounted to about
$1,900, and that amount has not been paid by deponent, but is
included as a part of the claim of said company herein. By rea-
son of the false representations made by said company to depo-
nent, deponent has lost the $2,300 which he paid to said com-
pany, besides about 18 months' time and labor, which is worth
to deponent not less than $3,000. That the business of said
company in this locality did not amount to more than $5,000 a
year. That the gross profits of said business, if it had amounted
to $20,000 per year, would have been $4,000 per year, and the
net profits to deponent would have been at least $2,000 per year.
Said business amounted in fact to only $5,000 per year, and the
gross profits thereof being but $1,000, there were not net profits
to deponent, but an actual loss, not only of said net profits, but
of money which deponent was obliged to borrow in order to carry
on said business. Said amount of borrowed money amounts to
at least $1,300, making the total losses sustained by reason of
said false and fraudulent representations of the said Peninsular
Paint & Varnish Company at least the sum of $6,600.
"Second. In and by the contract entered into between depo-
nent and said Peninsular Paint & Varnish Company, in or about
August, 1906, said company agreed to furnish to deponent the
services of a capable salesman to assist deponent in disposing
of the goods manufactured by said company in this locality for
, certain periods of the year, specified in said contract. Said com-
I pany failed and neglected to furnish such salesman at the period
specified in said contract, and when a salesman was eventually
furnished to deponent for a short time by said company said
salesman was incapable and inexperienced, and was of no assist-
ance whatever to deponent. That by reason of the failure of said
company to carry out its contract with deponent in respect
MUTUAL DEBTS AND CREDITS 611
herein referred to deponent has suffered damages in the sum of
at least $1,000.
"Howard E. Harper.
"Sworn to before me this 31st day of March, 1908.
"James W. Wright, Notary Public, Reus. Co."
« * *
It will be noted that the affidavit of Harper does not deny the
sale and delivery and agreed price of the goods, wares, and
merchandise, or the account stated, but sets up two counterclaims.
The petition of the trustee admits the sale, etc., denies the ac-
count stated, and sets up, in substance, the same counterclaims.
The 'claim of the Peninsular Company is not based upon an
account stated. That allegation may be wholly disregarded, and
we have a complete and valid proof of claim, which, in the
absence of objection, should and must be allowed as a valid
claim to the amount stated. The trustee does not deny the sale
and delivery of the goods to the bankrupt, the agreed price, the
value, the payments, or the balance due. He simply denies that
there was an account stated between the parties, which included
this account.
This reduces the questions involved here to the propositions: \,^
(1) Whether or not valid actionable counterclaims or offsets are
alleged; and (2) if so, can they or either of them be used to
reduce or extinguish the otherwise valid, provable, and proved
claim of the Peninsular Company?
* * *
But this question is not very important here, as the undis-
puted facts show that the Peninsular Company is a creditor to
the amount stated, and the question is, really, whether the trus-
tee may prove and have liquidated an unliquidated claim for
damages, or claims for damages, of the nature stated, and if
such claims, or either of them, are sustained, use the recovery to
reduce or "wipe out" the claim of the Peninsular Company. If
the trustee had come into possession of a valid promissory note
of $3,000 made by the Peninsular Company, overdue, and be-
longing to the bankrupt and his estate after adjudication, is
there any question that he could set it up as a counterclaim or
offset to the claim of the Peninsular Company, and to that ex-
tent reduce its claim ? I think not. Any debt, liquidated or }
unliquidated, owing to the bankrupt from a creditor of his, I
whether for damages or on contract, express or implied, which
passes to the trustee, may, of course, be used by him to reduce
612 ADMINISTRATION
the claim of such creditor when presented, or to extiu^ish it
altogether. § 68 of the bankruptcy act, as amended, provides:
"Set-Offs and Counterclaims. — (a) In all cases of mutual debts
or mutual credits between the estate of a bankrupt and a cred-
itor the account shall be stated and one debt shall be set off
against the other, and the balance only shall be allowed or paid. ' '
By § 70 of the act it is provided, in substance, that upon
his appointment and qualification the trustee shall be —
"vested by operation of law with the title of the bankrupt, as
of the day he was adjudged a bankrupt, except in so far as it is
,to property which is exempt, to all * * * (5) property
which prior to the filing of the petition he could by any means
have transferred, or which might have been levied upon and sold
, under judicial process against him ; * * * (6) rights of ac-
tion arising upon contracts or from the unlawful taking or
detention of, or injury to his property. ' '
f, ^ It is self-evident, I think, that rights of action for ujilic[uidated
f Ay'-^^ldamages for false and fraudulent representations, or for a breach
I of contract, whether assignable or not, are not regarded as prop-
) *" lerty under subdivision 5.
Do the objecting creditors set up, or does the trustee in his
petition set up or allege, "a right of action," existing in favor
of Harper, prior to his bankruptcy, "arising upon contract"?
Clearly neither of them set up a right of action arising from
the unlawful taking or detention of his property. Do the cred-
itors or trustee set up a right of action arising from injury to
the bankrupt's property? The first counterclaim is to recover
damages for false and fraudulent representations whereby the
bankrupt was induced to enter into a contract to purchase paints
and to enter on the business of selling or dealing in paints,
whereby it is alleged he lost the sum of $6,500. The second
counterclaim is to recover damages for a breach of contract in
not furnishing a capable salesman to assist Harper in the dis-
posal of goods manufactured by the Peninsular Company. Dam-
f ages in the sum of $1,000 are alleged. In the first counterclaim
{ no breach of contract is alleged. It is a cause of action (if one is
sufficiently stated) to recover damages for false and fraudulent
representations made by the company, whereby, relying thereon,
the bankrupt, prior to bankruptcy, was induced to enter into a
certain contract to engage in a certain business, and in such
business purchase his stock of the Peninsular Company, all of
which he did, and because of the false and fraudulent representa-
MUTUAL DEBTS AND CREDITS 613
tions inducing such contract he lost $6,500. This is not a right
of action arising upon contract. Is it one arising from injury
to Harper's property? Code Civ. Proc. N. Y. § 3343, subd. 10,
provides :
**An injury to property is an actionable act whereby the /
estate of another is lessened, other than a personal injury, or I
the breach of a contract." '
Was the making of these false and fraudulent statements an
"actionable act," within the meaning of this provision of the
law? No physical act is alleged which lessened the estate of
Harper, unless it be that the making of false and fraudulent
statements is a physical act, within the definition stated. The
representations did not lessen or diminish the estate of Harper
directly; but, the claim is, they induced Harper to enter into
a contract which otherwise he would not have made, and that
in the execution or attempted execution of same, without fault
OkU his part and solely because of the fact that business conditions
and surroundings were not as represented, he lost $6,500, and
that thereby his estate was lessened to that extent. In other
words, the false and fraudulent representations made to Harper
by the Peninsular Company induced an act by Harper in the
execution of which he lost $6,500. The gravamen of the cause"]
of action is the false and fraudulent representations, the acts
of making them; the result is damage by the loss of money be-
longing to Harper's estate, whereby such estate is diminished
or lessened.
[After discussing certain New York cases, the court continued :]
This would seem to be a plain holding that material false and
fraudulent representations which induce another to part with
his property constitute an actionable act causing injury to
property. If so, is it not a "right of action arising from an
injury to his property ' ' ? However, Harper was not induced by
the false and fraudulent representations to part with any prop-
erty, or to stop any work on his property, or to pay men for time
idle, and he lost no rental of property. He was induced by
such representations to enter into a certain contract with the
one making them, to purchase and engage in an attempt to sell
certain property — risk that property in business — and in and
by so doing, for the reason such representations were false, he
lost his money or property. His estate was lessened. In this
ease the Peninsular Company not only made the representations,
but was the party to be benefited by the contract. Harper was
614 ADMINISTRATION
to purchase of it his stock of goods, risk same in the business,
and pay therefor to the company. He did under that contract
purchase these goods mentioned in the claim of the Peninsular
Company presented as a claim to the trustee of Harper's estate
in bankruptcy. If Harper had not been adjudicated a bankrupt,
and had been sued by the Peninsular Company for the price or
value of the goods, he could have set up and pleaded this coun-
terclaim. §§ 500 and 501, Code of Civil Procedure. § 500 per-
mits the setting up of a counterclaim, and § 501 says :
* ' The counterclaim, specified in the last section, must tend, in
some way, to diminish or defeat the plaintiff's recovery, and
must be one of the following causes of action against the plain-
tiff, or, in a proper ease, against the person whom he repre-
sents, and in favor of the defendant, or of one or more defend-
ants, between whom and the plaintiff a separate judgment may
be had in the action :
"1. A cause of action, arising out of the contract or transac-
tion, set forth in the complaint as the foundation of the plain-
tiff's claim, or connected with the subject of the action.
"2. In an action on contract, any other cause of action on
contract, existing at the commencement of the action."
This counterclaim, the one asserted by the trustee, does not
arise on contract, and is not for damages for a breach of the
contract on which the Peninsular Company relies; but it is a
claim to recover damages resulting from the false and fraudu-
lent representations of the party who, in eft'ect, sues on the con-
tract, who was a party thereto, and who induced the making
thereof; and the contention of Harper's trustee is that, having
been induced to enter into it by such false representations, and
under and pursuant to it to purchase the goods in question and
engage in the business of selling them, by reason of the falsity of
such statements, he (Harper) lost his money or property.
This cause of action for the damages sustained is one con-
nected with the subject of the action — that is, the claim of the
Peninsular Company here — even if it is not one arising out of
the contract or transaction on which that company bases its claim
as presented to the trustee. It is a cause of action to recover
damages sustained by reason of or as a consequence of the fraud
perpetrated in inducing the making of the very contract the
Peninsular Company relies upon as the basis of its claim, and
which damages were sustained in executing or performing that
very contract, so induced, for the benefit of the said company.
MUTUAL DEBTS AND CREDITS 615
All this is settled by the decision of the Court of Appeals of the
state of New York. Carpenter v. Manhattan Life Insurance
Company, 93 N. Y. 552, 556 ; Thomson v. Sanders, 118 N. Y. 252,
258, 259, 23 N. E. 374. The words "subject of the action"
mean "the facts constituting plaintiff's cause of action." Leh-
maier v. Griswold, 40 N. Y. Super. Ct. 100, cited and approved
Rothschild v. Whitman et al., 132 N. Y. 472, 476, 30 N. E. 858.
The facts constituting the Peninsular Company's claim are the
contract to sell goods, and the sale and delivery of said goods
pursuant thereto, and a breach thereof by nonpayment. The
counterclaim is that such contract was entered into because of
false and fraudulent representations made by the company and
relied on by the vendee or purchaser under the contract, result-
ing in great loss, because there was no market for the goods as
represented. True, the representations preceded the contract,
and the ordering and delivery of goods under it, and the loss;
but they were all connected and followed in regular sequence.
The case is not like Rothschild v. Whitman et al., 132 N. Y. 472,
30N. E. 858.
I am therefore of the opinion, and hold, that the claim for\ •
damages passed to the trustee, if he has one, and that, as the \^J^
Peninsular Company has presented its claim to the trustee, the I ^
trustee may establish such counterclaim before the referee, unless I
some other mode of establishing and liquidating same is directed^^
My attention is called to In re Becker Bros., 15 Am. Bankr.
R. 228, 139 Fed. 366, In that case the bankrupt had leased cer-
tain premises and was in possession. The landlord negligently
allowed water to come in upon the leased premises, whereby the
property of the bankrupt was injured. The landlord duly proved
his claim for rent in the bankruptcy proceedings, and the trustee
sought to counterclaim the alleged cause of action for such dam-
ages against the claims of the landlord for such rent. If under
the laws of Pennsylvania the negligence of the landlord in al-
lowing water to come in on the premises leased to the bankrupt,
to the injury of his property constituted and created "a right
of action in favor of such bankrupt, prior to his adjudication,
arising from injury to his property, ' ' such right of action passed
by operation of law to the trustee in bankruptcy, and it became
his duty to enforce it and collect the damages for the benefit of
the estate. It would be ridiculous to say that a right of action
for damages which passes to a trustee is not to be enforced and
collected by him for the benefit of the estate. If, then, the one
616 ADMINISTRATION
liable to the estate in an action for damages has and presents a
claim against snch estate, no matter what its character or how
it arises, provided it be one properly provable and allowable
against the estate in bankruptcy, are the trustee and referee to
allow it, and pay a dividend or dividends, and proceed by action
to enforce the claim for damages; or may the trustee establish
the claim for damages and use it to reduce or wipe out such cred-
itor's claim? The bankruptcy act itself says:
"In all cases of mutual debts or mutual credits between the
estate of a bankrupt and a creditor the account shall be stated
and one debt shall be set off against the other, and the balance
only shall be allowed or paid. ' ' § 68a.
Subdivision "b" of the same section adds the limitation or
qualification, however, that :
. "A set-off or counterclaim shall not be allowed in favor of
( any debtor of a bankrupt which is not provable against the
\estate."
This is not a limitation or restriction on the right of the
trustee to set up, prove, and use any claim he has and which
he may enforce against a creditor of the bankrupt presenting a
claim against the estate he represents, provided it be a "debt"
owing by such creditor to the bankrupt estate within the mean-
ing of 1^ 68a. The plainly disclosed policy of the act is that
where a person is indebted to the bankrupt estate, and the trus-
tee seeks to enforce the indebtedness, the debtor to the estate
may set up as an offset or counterclaim only such just demands
as he has against the estate which are provable in bankruptcy as
a claim against the estate, unless it be one purchased or trans-
ferred to him after the filing of the petition in bankruptcy, or
within four months before such filing, with a view to such use,
and with notice or knowledge that such bankrupt was insolvent
or had committed an act of bankruptcy. The_debtor is limited
to claims provable in bankruptcy. There is no provision or sug-
gestion in the act that a claim against a creditor of the bankrupt
in the hands of the trustee, and which came to him by opera-
tion of law on his appointment, cannot be used as an offset to
or counterclaim against the claim of such creditor of the bank-
rupt estate, unless such claim in the hands of the trustee be one
of a character provable in bankruptcy in case the one liable
thereon had been adjudicated a bankrupt.
Confess had a perfect right to provide that a debtor to the
estate shall not be allowed to offset or counterclaim demands or
MUTUAL DEBTS AND CREDITS 617
claims against the bankrupt, unless they be of the class and
character provable in bankruptcy, and also to provide what
claims and demands and causes of action, existing in favor of the
bankrupt at the time the petition was filed, shall pass to the
trustee in bankruptcy and be enforced by him, and also to pro-
vide the mode of enforcement. Is a claim for damages for false
and fraudulent representations a *'debt," within the meaning
and intent of § 68a. of the act? If so, there is no doubt of the
right of the trustee to offset or counterclaim same. |Laubd.
11, of the act provides :
"^'^'Debt' shall include any debt, demand, or claim provable
in bankruptcy."
It will be noted that some of these definitions in § 1 read ' ' shall
mean," while others read "shall include." It was not intended
that definitions of words used in the act which read "shall in-
clude ' ' should exclude other meanings or definitions of the word,
or limit the ordinary and well-understood meanings. It was in-
tended, as the words used plainly indicate, to make sure that
they would be held to include what is expressed. If a statute
should be written prohibiting the sale of all intoxicating bev-
erages, and a section should be added saying, the words ' ' intoxi-
cating beverages" as used herein shall include hard cider, would
an intelligent court be justified in holding that the words "in-
toxicating beverages, ' ' used in the act, had been defined to mean
hard cider, and nothing else, and that whisky, rum, brandy, and
other intoxicants were excluded, or not included ? Yet cases may
be found where this very interpretation has been put upon § 1
of the bankruptcy act.
It is quite true that the word "debt," given its common-law \
meaning, does not include a claim for unliquidated damages for I
false and fraudulent representations. Jackson v. Bell, 31 N, Jr
Eq. 554, 558; Duncan v. Lyon, 3 Johns. Ch. 351, 8 Am. Dec.
513 ; Berson v. Ewing, 84 Cal. 89, 23 Pac. 1112. However, the
word "debt" may include claims for unliquidated damages. In
re Brouillard, 20 R. I. 617, 40 Atl. 762. There Gen. Laws 1896,
c. 274, § 50, provided that a discharge in insolvency should re-
lease the insolvent from ' ' all his provable debts. ' ' The same act
provided that claims for trover and torts might be proved. It
was held that the word "debts" was used in its generic and not
its strict legal sense, and that claims for damages for torts were
released. In Rosenbaum v. United States C. S., 61 N. J. Law,
543, 40 Atl. 591, 593, it was held that the statute providing for
618 ADMINISTRATION
sale and the division of proceeds amongst the creditors of an in-
solvent corporation in proportion to their debts included claims
for unliquidated damages, and the word ''debts" is used in its
broad and no restricted sense. Damages for taking land is a
debt due, when fixed and payable. Lowell v. Boston, etc., 106
Mass. 540.
In Berson v. Ewing, supra, the Civil Code provides that the
liquidating partner may collect, compromise, or release any debts
due the partnership, and pay or compromise any claims against
it; and it was held that ''debts" included claims — that the
words were used synonymously. In New York the word "debts"
includes every claim and demand upon which a judgment for
a sum of money, or directing the payment of money, could be
recovered in an action. Code Civ. Proc. § 2514.
A Wisconsin statute, providing that the homestead should not
be liable to a forced sale ' ' for any debt, ' ' means debts arising on
contract and judgments for torts. Smith v. Omans, 17 Wis. 395,
397.
The words "debts contracted," as used in the Constitution
of Michigan, are words of large import, and include all kinds
of claims arising not only on contract, but in tort. Mertz v.
Berry, 101 Mich. 32, 59 N. W. 445, 446, 24 L. R. A. 789, 45 Am.
St. Rep. 379. See, also, Losee v. BuUard, 79 N. Y. 404 ; Munson
V. Genesee, etc., 37 App. Div. 207, 56 N. Y. Supp. 139.
The bankruptcy act has provided that such a claim as is set up
7 by this trustee shall pass to the trustee in bankruptcy as we have
\ seen. It contemplates that he will do his duty, and establish and
S liquidate it in some court of competent jurisdiction. When so
S liquidated, it is a debt owing by the one against whom it is as-
)serted beyond all question. Thayer v. Southwick, 8 Gray (Mass.)
• 229; Crouch v. Gridley, 6 Hill (N. Y.) 250; Johnson v. Butler,
2 Iowa, 535, 545 ; In re Book, 3 Fed. Cas. 867, 868. When that
is done, the right of offset or counterclaim is perfect and com-
plete. Claims of creditors are proved before the referee or court.
§ 57. § 63 states what debts may be proved ; § 64 states what
debts have priority ; § 65 provides for the declaration and pay-
ment of dividends ; § 66 takes care of unclaimed dividends ; and
§ 67 takes care of liens. Then comes § 68, relating to "Set-Offs
and Counterclaims," which is a limitation on the preceding sec-
tions relating to the allowance of claims and the declaration and
payment of dividends.
MUTUAL DEBTS AND CREDITS 619
I do not doubt that the claims set up by the trustee herg~"
and sought to be offset or counterelaimed passed to the trustee
in bankruptcy. If he would enforce them, must he bring suit
thereon for the benefit of all the creditors, collect the entire
judgment for damages, if one is recovered, and apply the pro-
ceeds generally in marshaling the assets, or are they to be treated .
as debts owing by the creditor, and as subject to be offset when I
liquidated or established, and the amount due, if anything, ascer- /
tained ? The latter is the construction the more favorable to the /
one liable in damages. He is not compelled to pay the entire
recovery, and perhaps no part of it, depending on the amount
of his claim against the bankrupt estate. On the other hand, if
such a claim for damages is not regarded as the subject of off-
set within the meaning of § 68a, the trustee here must go to a
foreign state and bring suit, and take his chances of making col-
lection in case of recovery. §§ 23&, 60&, 67e. The Peninsular
Company having come into this court with its claim, it has either
made itself a party to the bankruptcy proceeding here, or has
instituted a proceeding in bankruptcy, probably the latter.
Coder v. Arts, 213 U. S. 223, 234, 235, 29 Sup. Ct. 436, 441,
53 L, ed. 772, where it is said :
' ' Arts appeared in the bankruptcy court, recognizing the title
and possession of the trustee in bankruptcy, asserted his claim
upon the notes, and his right to have the assets so administered
and paid as to recognize the validity of the lien for the security
for his claim. We are of opinion that he thus instituted a pro-
ceeding in bankruptcy, as distinguished from a controversy aris-
ing in the course of bankruptcy proceedings. ' ' ^
In either case that claimant company is in this court seeking
a dividend from the estate, and it seems clear to me that under
the general policy and to answer the true purpose of the law the
claim of the trustee is to be regarded and treated as an alleged
debt of that company to the estate in bankruptcy, and, if estab-
lished, offset or counterelaimed. There is no legal ^r_ec|uitable^
principle upon which it can be held that the creditor shall pay
such claims for damages in full, if established, for the benefit of
the estate, taking his percentage thereof by way of dividend on
his claim when, if such claim for damages had been reduced to
judgment against him prior to bankruptcy, he would be entitled
to wipe it out in whole or in part by offsetting his claims against
th^ba£kru£tjinder^^^ The cases all agree that a claim for
damages arising from f rauH or false and fraudulent representa-
620 ADMINISTRATION
tions becomes a "debt" when reduced to judgment. The bank-
ruptcy act so treats such judgments. § 63a. In short, if the
bankrupt and the estate after adjudication owes A. $1,000 for
money loaned, and A. owes the bankrupt (and the estate after
adjudication) $1,000 on a judgment obtained for damages sus-
tained by reason of false and fraudulent representations, both
are debts, and must be offset under § 68<j. Under the conten-
tion of the Peninsular Company here, in case such a cause of ac-
tion exists in favor of the estate, and recovery of judgment is had
by the trustee after bankruptcy, the creditor is not entitled to
/ the offset or counterclaim. I cannot assent that this is the mean-
f ing and effect of the bankruptcy act.
« * *
The order under review is affirme^,
tAj^AX A. -<^ ^ c*^«(U^ KISKADDEN v. STEINLE
^^tJ^t^^^ / /^*^*-^*^-^03 Fed. 375, 121 C. C. A. 559
""1^*-*-^ (Circuit Court of Appeals, Sixth Circuit. February 4, 1913)
J. tL.^ '^^^ trustee sought to have a claim of Steinle re-examined and
'^ • "" diminished, which had been allowed December 4, 1909. The
Jl^<. claim was for $16,549, with interest from October 23, 1909. The
^ / claim was based upon five promissory notes, two for $6,500 each
^*''*' and three for $1,000 each, bearing date March 2j6^X9Q9, and
^^(fJLA^ falling due on different dates between that time and October
^^_f(i , 26th following, with 6 per cent, interest. The notes were exe-
*r^ ^ cuted by the C. C. Anderson Manufacturing Company (whose
tT name was changed to the Fostoria Undermuslin Company) to
^^^''* the order of A. V. Bauman, and were indorsed by Bauman,
Henry Hughes, and C. O. Frick. Bauman discounted the paper
and turned the money over to the Fostoria Company. When
the notes matured, the company was unable to pay them, and
they were taken up by Bauman and held by him until November
2, 1909, when they were assigned to Steinle. The facts alleged
in support of the right to have the claim diminished were, in
substance, that Bauman subscribed for 300 shares, of the par
value of $100 each, of the capital stock of the company, but did
not fully pay for the shares, and so is indebted to the company
for the balance remaining due upon his subscription ; that Baji;-
man was the real owner of the notes and the claim, but that, if
it should be found that they were in fact owned by Steinle, since
t
MUTUAL DEBTS AND CREDITS 621
he obtained the notes after maturity, the claim in his hands was
subject to a set-off to the extent of such balance.
In June, 1904, C. C. Anderson and Bauman formed a copart-
nership for the purpose of manufacturing muslin underwear,
acquiring a factory, with goods and stock, and conducting the
business at Fostoria, Ohio. They also purchased and removed
to this factory certain equipment and goods of a company in
Saginaw, Mich. In October, 1904, they incorporated a company
under the laws of Ohio, with an authorized capital stock of $100,-
000; Anderson and Bauman each subscribing for 44 shares, J.
J. Anderson for 10 shares, and Anna Rose G. Bauman and Helen
May Anderson for 1 share each, these five persons being also
the incorporators and directors. The company, through these
directors, thereupon purchased the partnership property, busi-
ness, and good will of Anderson and Bauman, and assumed the
firm's obligations for the consideration of 602 shares ($60,200
par value) of what was characterized as "the fully paid and non-
assessable stock" of the newly incorporated company. This was
to include the shares subscribed, ' ' and the issue of which was in
full satisfaction of the obligations assumed by them and each of
them by said subscription. ' ' In the summary of the evidence it
appears that the real estate turned over to the corporation was
purchased by Anderson and Bauman for $5,000; that the pur-
chase of the articles at Saginaw was from a company that had
gone into liquidation, which, after disposing of part of its prop-
erty to others, sold the remainder to Anderson and Bauman for
$7,500. The referee found that the property and articles of
every kind turned over by the copartnership to the company in
payment of the 602 shares of stock cost the firm from $27,500
to $32,500. The company sold 200 shares of its so-called treasury
stock to Henry Hughes, one of the indorsers of the notes in dis-
pute, at $67.50 per share. This price was made and accepted
on the representation of Anderson and Bauman that they had
invested $40,000 in the property turned over to the company,
and the declared purpose was to sell the stock to Hughes at a
price ' ' that would let him in on the same basis as Anderson and
Bauman," because "Hughes had originally intended to join the
partnership." The referee found that the fair and reasonable
value of all of the property, which Anderson and Bauman sold
to the company, "did not exceed the sum of forty thousand ($40,-
000) dollars," and that the overvaluation of the property "was
not due to error of judgment on the part of C. C. Anderson and
J
u
622 ADMINISTRATION
A. V. Bauman and other directors of the corporation at the time
of the transaction. * * *"
Of the 602 shares of stock received for the sale of the property,
Bauman received 300 shares ($30,000 par value), and is still the
owner of the stock. The finding of the referee respecting these
shares is as follows: "That at the time of the issue to him of
the said three hundred shares of stock" of the company "Bau-
man was aware of the overvaluation of the property of Ander-
son and Bauman, and that his half interest in the partnership,
for which he received the three hundred shares of stock of the
par value of one hundred ($100) dollars each, was worth not
'^j^^'^ to exceed twenty thousand ($20,000) dollars."
^^^' , The referee ordered Steinle's claim of $16,549 to be reduced
*' in the sum of $10,000, letting it stand as "allowed against the
bankrupt" for $6,549, with interest. The court below reversed
the referee's order, denied the petition of the trustee to dis-
allow the claim, and dismissed the petition with costs. The ease
was brought to this court upon appeal prayed and allowed within
10 days of the date of the order made by the court below.
WARRINGTON, Circuit Judge (after stating the facts as
above). We shall consider the case under the objections urged
on behalf of appellee: (a) the case is not appealable; (b) no
stock liability exists against Bauman; (c) such liability cannot
be set off against the claim of Steinle.^"
# * *
Alleged Stack Liability. No opinion was handed down in the
court below, and we have no means of ascertaining the views
of the learned trial judge, except as they were stated in the
arguments of counsel, and as they appear in their briefs. The
claims that no liability of Bauman exists in respect of the 300
shares of stock received by him, and that, if there be any such
liability, it cannot be set off against the claim of Steinle, present
questions of some difficulty. However, since the promissory notes
' were past due when obtained by Steinle, it is not disputed that
they were received by him subject to any defense of the com-
pany to which they would have been open in the hands of Bau-
* man. If the facts are accepted, as in substance found by the
referee, that the overvaluation of the partnership property was
not due to error in judgment of Anderson and Bauman and the
26 — The opinion on the first point
is omitted.
MUTUAL DEBTS AND CREDITS 623
other directors of the corporation at the time of the transaction,
and that Bauman then knew that the portion of the property-
he was transferring to the eompajiy was $10,000 less in value
than the par value of the stock he. was receiving, we are met
with the question whether proof of the claim must be allowed
and payments made upon it out of the bankrupt's assets ratably
with the claims of the general creditors, who confessedly are not
indebted to the estate, without regard to the unpaid portion of
the Bauman stock. Could Bauman have retained the notes and
maintained this position? As pointed out in the statement,
the corporation was organized under the laws of Ohio. Whether
Bauman is liable for the unpaid portion of the stock he received
is a local question, and is governed by the pertinent rule of de-
cision of the Supreme Court of Ohio. Black v. Zacharie & Co.,
3 How. 482, 511, 11 L. ed. 690; Thompson v. Fairbanks, 196 U.
S. 516, 523, 25 Sup. Ct. 306, 49 L. ed. 577 ; Detroit Trust Co. v.
Pontiac Savings Bank, 196 Fed. 29, 33, 115 C. C. A. 663 (C. C.
A. 6th Cir.) ; In re Jassoy Co., 178 Fed. 515, 516, 101 C. C. A.
641 (C. C. A. 2d Cir.) ; Shaw v. Goebel Brewing Co., 202 Fed.
408 (C. C. A. 6th Cir.) ; Mishawaka Woolen Mfg. Co. v. West-
veer, 191 Fed. 465, 466, 112 C. C. A. 109 (C. C. A. 6th Cir.).
[The court concluded that under Ohio law Bauman was indebted
to the corporation in the sum of $10,000, which the trustee could
recover; and continued as follows:]
TJie Right of Set-Off. Can Bauman 's liability be enforced by
the trustee through the exercise of the right of set-off in a case
like this? At first blush it would seem that the language of
§ 68a^f the Bankruptcy Act, in connection with the rule in the
Gates Case, would admit of the set-off claimed here ; for § 68a
extends to ' ' all cases of mutual debts or mutual credits between
the estate of a bankrupt and a creditor," and, as stated, the
Ohio rule treats such liability as a debt due to the corporation.
However, we think the true interpretation of § 68, els. "a" andj
"b", and of such rule is that, after the corporation becomes in-,
solvent, any sum due upon a stock subscription is impressed with ^'***'
the character of a trust in favor of all the creditors alike, except , .^
only such as may have given credit to the company with knowl- *
edge of the scheme of stock issue. Hence to apply such an un- 1 / ^
paid subscription as a set-off to an ordinary claim held by the f
subscriber against the corporation would be to appropriate the} .a- A
rights of the other creditors in the subscription debt to the ex-
clusive benefit of the person owing it ; or, on the other hand, it
•J
624 ADMINISTRATION
might, as respects his costoekholders, subject him to the payment
of more than his ratable share of the bankrupt's debts. It can-
I not be said, then, that the debts in question are in their nature
I both mutual and in the same right ; nor that after the bankruptcy
[ there was any reason for enforcing stockholders ' liability or
Bauman's ratable share thereof except for the equal benefit of
all the creditors.
In Sawyer v. Hoag, supra, 17 Wall, at p. 622, 21 L. ed. 731,
when passing upon a provision of the Bankruptcy Act of 1867
(14 Stat. p. 526, § 20), similar to § 68 of the present act, Justice
•Miller said:
* ' This section was not intended to enlarge the doctrine of set-
off, or to enable a party to make a set-off in cases where the
principles of legal or equitable set-off did not previously author-
ize it. The debts must be mutual ; must be in the same right.
The case before us is not of that character. The debt which the
appellant owed for his stock was a trust fund devoted to the pay-
.raent of all the creditors of the company. As soon as the com-
ipany became insolvent, and this fact became known to the
1 appellant, the right of set-off for an ordinary debt to its full
\amount ceased. It became a fund belonging equally in equity to
all the creditors, and could not be appropriated by the debtor
to the exclusive payment of his own claim."
To the same effect are Scammon v. Kimball, Assignee, 92 U. S.
366, 367, 23 L. ed. 483 ; Scovill v. Thayer, supra, 105 U. S. 153,
26 L. ed. 968; Babbitt v. Read (C. C.) 173 Fed. 712, 715;
In re Howe Mfg. Co. (D. C.) 193 Fed. 524, 527; 1 Love-
land on Bankr. (4th ed.) p. 661, and note 4; Collier on
Bankr. (8th ed.) p. 796, and notes. And the rule that "unpaid
subscriptions to the stock of a corporation constitute a trust
fund for the benefit of its creditors" is stated in Fogg v. Blair,
139 U. S. at p. 125, 11 Sup. Ct. 476, 35 L. ed. i04, to be ''the
settled doctrine of this court ' ' ; and, further, in Scovill v. Thayer,
105 U. S. 156, 26 L. ed. 968, it was held:
"Upon the bankruptcy of the company his obligation was to
, pay to the assignees, upon demand, such an amount upon his
i unpaid stock as would be sufficient, with the other assets of the
\ company, to pay its debts. He was under no obligation to pay
any more, and he was under no obligation to pay anything until
the amount necessary for him to pay was at least approximately
ascertained. Until then his obligation to pay did not become
complete. ' '
MUTUAL DEBTS AND CREDITS 625
We have still to consider an important ease recently decided
by the Supreme Court of Ohio. It is Niles, Assignee, v, Olszak
(87 Ohio St. 229, 100 N. E. 820, decided December 17, 1912),
which holds:
"A stockholder in a savings and loan association organized
under the laws of this state is entitled, when the association
becomes insolvent, to set off, as against its assignee for the bene-
fit of creditors, a claim for money which he has on deposit with
the association against his liability for the unpaid part of his
stock subscription."
That case is the nearest approach to this one of any other
decided by the Supreme Court of Ohio, and so dispenses with the
need of referring to other decisions of the court. "We think the;
learned judge announcing the opinion pointed out facts whichi
render the decision inapplicable here, when he said :
' * The stock was not issued under the pretense of being or pur-
porting to be fully paid, when in fact it was not paid for.
There was no contrivance to release the debt for the stock, and
substitute a loan therefor. It is not a case in which a corpora-
tion had held itself out to the public as having a larger paid-up
capital than it actually had. * * * The statute prescribes
* * * that no such association shall commence business until
at least one-half of each subscription ha^ been fuUy paid up.
There is no claim that this was not done, and the presumption
is that it was done. The finding of facts shows that the associa-
tion was duly organized under the statute. There is no claim
that it ever pretended that any more than 50 per cent, of each
subscription had been paid in, or that any one ever gave credit
on the faith that all of its stock had been paid in full. * * *
It is common knowledge that many of the subscribers to the stock
of such savings associations make their deposits therein with
the intention and understanding that such deposits shall be
made and used for the purpose of paying for the stock. * * * "
Thus it may be fairly inferred that all creditors of the sav-
ings bank were chargeable with knowledge that only 50 per
cent, of its capital stock had been paid in, and that it was un-
derstood that the deposits should be applied to the payment of
the balance due on the subscriptions. This in principle agrees
with what we have already pointed out as recognized by the same
court in the Gates Case, and by this court in Rickerson Roller
Mill Co, V. Farrell Foundry & Machine Co., respecting the rights
of persons who extend credit to a corporation with knowledge
H. & A. Bankruptcy — 40
626 ADMINISTRATION
of the arrangement under which its stock subscriptions have been
made. It may well be that as to all such persons the unpaid
subscriptions do not constitute a trust fund, in the sense that
it is not open to set-off.
Furthermore, any suit rightly to enforce payment of unpaid
stock subscriptions would have to be of a plenary character (In
re Haley, 158 Fed. 74, 85 C. C. A. 404 [C. C. A. 6th Cir.] ; In re
Remington Automobile & Motor Co., 153 Fed. 345, 347, 82 C. C.
A. 421 [C. C. A. 2d Cir.] ) ; and it does not appear that Bauman
is a party to the present suit, although he appeared as a witness
and so had notice of it. We are thus led to believe that the set-
off was not permissible.
What, then, should be done with the claim of Steinle ? We
have felt bound under the present record to assume that Bau-
man is solvent. If the claim be allowed and permitted now to
share in the assets, according to the undisputed statement of
counsel for appellee, Steinle would receive a sum nearly equal
to the amount found by the referee to be due from Bauman upon
his subscription. Still, if Bauman could meet his unpaid bal-
ance, not to speak of the liability of any of his costockholders, no
ultimate loss to the other creditors would ensue. If, on the
other hand, Bauman should not be able to pay anything re-
maining due on his subscription, Steinle (who stands no better
than Bauman) would profit at the expense of the other cred-
itors. In the latter event, however, the reasons for denying the
^ set-off (or at least its equivalent in the nature of an equitable
defense) against the Steinle claim would cease ; for nothing would
be gained by suit upon the subscription, and so nothing could
be lost by the general creditors by applying whatever sum is
really due from Bauman toward payment of the Steinle claim.
Rolling Mill Co. v. Ore & Steel Co., 152 U. S. 615, 616, 14 Sup.
Ct. 710, 38 L. ed. 565.
Since it would be obviously inequitable to permit the Steinle
claim to share ratably in the assets before properly disposing
of the question of Bauman 's obligation and his ability to pay
it (In re Wiener & Goodman Shoe Co. (C. C.) 96 Fed. 949, 950,
and In re Duryea Power Co. (D. C.) 159 Fed. 783, 784, the
underlying principles of which we regard as applicable), we are
constrained to hold that the order of the court below allowing
the claim should be reversed, with costs; that all proceedings
upon the Steinle claim be stayed, and all dividends that would
accrue on such claim, if allowed, be withheld and preserved,
MUTUAL DEBTS AND CREDITS 627
until the Bauman debt and its availability be finally settled.
If such debt be collected by the trustee, Steinle's claim shall be
allowed in full; if by reason of his insolvency Bauman 's debt
is not collectible in whole or in part, Steinle's claim shall be
accordingly reduced and the remainder allowed. An order will
be entered reversing the cause, and remanding it for further
proceedings, not inconsistent withyfciiis opinion.
NORFOLK & W. RY. CO. v. GRAHAM ^^^^^ ^^^^ J^
145 Fed, 809, 76 C. C. A. 385
(Circuit Court of Appeals, Fourth Circuit. May 1, 1906)
McDowell, District Judge. The following is an excerpt
from the opinion of the trial court :
"This was a suit in assumpsit instituted by John _T. Graham^
trustee of the estate of 0. M. Page, a bankrupt, against the Nor- ^ ^
folk & Western Railway Company, for the recovery of certain ^^M^
moneys alleged to be due to said estate under a contract entered
into between said Page and said railway company for the con-,
struction of a certain portion of its roadbed in West Virginia.
The defendant pleaded nonassumpsit and also filed a notice of
recoupment under the West Virginia statute, under which it
sought to prove damages growing out of the contract or trans-
action upon which the suit was brought, to an amount equal to
the demand against it.
' ' The parties by mutual consent waived a jury and submitted
all matters of law and fact to the judgment of the court upon
an agreed statement of all facts, from which statement it appears
that O. M. Page entered into a written contract on the 11th day
of August, 1902, with the defendant, by which he agreed to con-
struct for it, at certain prices therein named, §§21 to 25
inclusive, of the Naugatuck Branch of the Ohio extension of its
railroad. That, by the terms of the said contract, on or about
the 15th day of each calendar month estimates of the work done
by Page during the preceding month were to be made, and an
advance payment of eighty-five per cent. (85%) thereof made
to him, the remaining fifteen per cent. (15%) to be retained by
the railway company as a compensation for or on account of
any damages which might be certified by its engineer to have
been sustained from any failure of the said Page to perform
said contract. That Page performed work and furnished mate-
628 ADMINISTRATION
rials under said contract until the latter part of August, 1903,
during the whole of which time his total work amounted, ac-
cording to the terms of the contract, to thirty thousand seven
hundred and fifty dollars and eleven cents ($30,750.11), all of
which was paid him, excepting $4,612.52 of retained percent-
ages, and $3,428.25 worth of work estimated to have been done
in the month of August, making a total still in the hands of the
railway company, retained percentages and August estimate,
amounting to $8,040.77. That the retained percentages for the
month of May, 1903, amounted to $1,070.53 ; for the month of
June, $570.66 ; for the month of July, $651.13, and for the month
of August, $604.99; all of which percentages are embraced in
the sum total retained percentages of $4,612.52 above named,
and are separated into months only for the purpose of showing
what these percentages amounted to for the four months next
preceding the adjudication of Page as a bankrupt. That Page
broke his contract and abandoned his work on or about the 28th
or 29th day of August, 1903, and the railway company, through
its engineer construction work, branch lines, and in accordance
with the terms of said contract, immediately declared in writing
the same to be terminated and forfeited, which writing was filed
with the railway company, a copy thereof mailed to Page's last
known address, and another copy, as provided in the contract,
posted at the front door of his office upon his work, on Septem-
ber 1, 1903. Tha,t a petition in bankruptcy was filed against^
Page on the 1st day of September, 1903, and he duly adjudged
a bankrupt on the 10th day of said month. John T. Graham
was chosen as trustee in bankruptcy by the creditors, and, by
an order of the bankrupt court, was authorized and directed to
institute this suit.
"It was further agreed that Page was insolvent at the time
of his adjudication as a bankrupt, and that he was at that time
indebted to laborers who had performed work for him upon the
sections agreed to be constructed by him during the three months
next preceding such adjudication, in amounts aggregating five
thousand dollars ($5,000.00), but exceeding in no individual
case the sum of three hundred dollars ($300.00), all of whose
claims were proven in the bankrupt court, in accordance with
the provisions of the act of Congress. It was further agreed
that, after Page had abandoned his work and the railway com-
pany had declared his contract forfeited and at an end, it im-
mediately advertised for bids in the customary way for the com-
MUTUAL DEBTS AND CREDITS 629
pletion of the work that had been left unfinished by him. Many
contractors made bids thereon, but after the exercise of due care
and diligence in the premises upon the part of the railway com-
pany, one John T. McKinney was declared to be the lowest and
best bidder, and the contract for the completion of the aban-
doned work of 0. M. Page was given to the said McKinney.
The new contractor entered upon his work and prosecuted the
same with diligence, and under the reasonable supervision of
the railway company, to completion; but, in consequence [as it
was agreed] of the condition in which Page left the work that
had been abandoned by him, the railway company was com-
pelled to pay unto McKinney $11,112.80 more than it would
have been required to pay to Page upon the completion of said
work had he performed the same at the prices and in accordance
with the terms agreed upon by him.
' ' The def ec^es. .of the railway company were two : ( 1 ) That,
under the plea of non-assumpsit, and by the very terms of the
contract itself, it did not owe Page anything; because it had a
right to keep not only the retained percentages of $4,612.52, but
the August estimate of $3,428.25, as well ; the title thereto never
having vested in Page, in consequence of his agreement that no
money was to become due or payable to him or demandable by
him until after the whole work had been completed in a satis-
factory manner and certified by the engineer of the railway
company, which had not been done. (2) That, even if said re-
tained percentages and August estimate should be held to be a
debt due from the railway company to Page, still nothing would
be recoverable against the railway company in consequence of
its right to recoup, to the extent thereof, or offset against the
same, the damages occasioned to it by the very breach by Page
of the contract sued upon."
The declaration consisted of the common counts in assumpsit
and several special counts founded on the contract. It does not
appear whether or not the railway company knew of the bank-
ruptcy proceedings prior to the institution of this action. The
trial court ruled in favor of the railway as to the fifteen per
cent, retained from the various monthly estimates. But, being
of opinion that defense as to the 85 per cent, of the August esti-
mate could only be made by way of counterclaim, and that
§.57w, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444], barred
such counterclaim, the judgment below was as to this item ad-
630 ADMINISTRATION
verse to the railway company. The opinion as to the effect of
the bankrupt act reads as follows:
"The only other feature necessary to be considered is as to
the applicability of the notice of recoupment filed with the plea
of nonassumpsit. As the estate of Page, here represented by
the trustee, is that of a bankrupt, the question as to the avail-
ability of this notice is solvable only under the provisions of the
bankruptcy act, and under those provisions I must hold that it is
ineffectual. It is provided by Act July 1, 1898, c. 541, § 68&, 30
Stat. 565 [U. S. Comp. St. 1901, p. 3450], that a set-off or counter
claim shall not be allowed in favor of any debtor of the bankrupt
which is not made provable against the estate. This account for
damages for failure to complete the bankrupt's contract is not
so provable, because of lapse of time, and therefore cannot now
be set off. It is not the character of the demand which precludes
the right to set it off, but the failure to prove it in the proceed-
ing in bankruptcy. Thus unliquidated claims may be set off
against liquidated claims, provided they are provable in bank-
ruptcy, and this, as I apprehend, requires that they be presented
and proved before the referee. See § 636, 30 Stat. 563 [U. S.
Comp. St. 1901, p. 3447] and the discussion thereof in Collier on
Bankruptcy (5th ed.) p. 488; Brandenburg on Bank (3d ed.)
§ 1005; Loveland on Bank (2d ed.) p. 282.
''Had the railway company chosen to liquidate and prove its
claim it would seem that it would have been entitled to set it off
against the debt due to the estate; but, not having proved its
claim within the time limited, or taken steps to have it allowed
in the bankruptcy proceedings, it cannot now be pleaded as a
virtual set-off in this proceeding.
"Let judgment be entered for $3,428.25, with interest thereon
from September 15, 1903."
As the railway company alone has filed assignments and sued
out writ of error, we shall deal only with the propositions de-
cided adversely to it. In view of the conclusion we have reached
it is unnecessary that we set out the reasons which lead us to
think unsound the contention made in behalf of the railway
company to the effect that the contract gave the company the
right to retain the 85 per cent, of the August, 1903, estimate as
liquidated damages. We agree with the trial court that the right
of the company to defeat the claim of the trustee could only be
asserted by way of counterclaim. We must therefore now con-
sider the question raised under the bankrupt act.
MUTUAL DEBTS AND CREDITS 631
J 57n, 3ia..atat._561 [U. S. Comp. St. 1901, p. 3444], is a new
provision, appearing for the first time in the act of 1898. The
argument relied on by defendant in error may be briefly ex-
pressed as follows: The counterclaim of the railway company,
while provable in its nature, was not proved in the bankruptcy
proceeding within the time allowed by § 57n, and it was there-
fore when asserted in the court below not a provable counter-
claim such as can be set off. So far as we have been able to dis-
cover there is no reported case which can be relied upon as a
precedent for the view taken by the court below, and none that
has more than a tendency to support the opposite view. As the
trial court read § 57n, it is a statute of limitations applicable
to the counterclaim of a debtor sued in an independent plenary
action brought by the trustee in bankruptcy. We cannot so con-
strue this provision. § 57 as a whole relates merely to the proof
and allowance of .claims against the bankrupt in the bankruptcy
proceeding. The purpose of 57ti is to speed the conclusion of
that proceeding. One who is the debtor and the creditor of the
bankrupt, whose claim against exceeds his debt to the bankrupt,
must prove his claim in the bankruptcy proceeding within the
time limit fixed by 57w, in order to share in the distribution of
the estate. In re Muskoka Co. (D. C.) 127 Fed. 886. But we
find no warrant for holding that his failure to thus prove it is
a bar to the use of such claim in diminution of or to defeat the
claim of the trustee when asserted in an independent action. If
this clause of the act has the effect given it by the trial court,
it is as effective when relied on against the counterclaim of one
who has never heard of the bankruptcy proceeding, as it is when
relied on against the counterclaim of one who has had full knowl-
edge of such proceeding. And it is as effective in ease the trustee
brings his action after the expiration of the time limit fixed by
§ 57n, as in case he brings such action while there is yet time for
the defendant to prove his counterclaim in the bankruptcy
proceeding.
If in the case at bar the railway company had no knowledge
of the bankruptcy proceeding until this action was brought, i
§ 57n, as construed by the trial court, has the effect of depriv-
ing the company of a valuable right without an opportunity to^.
be heard. The fact that no exception is made in behalf of one[
who first leams of the institution of the bankruptcy proceeding
after the time fixed by this clause seems to us sufficient of itself
for denying the clause effect in an independent action. But let
632 ADMINISTRATION
it be assumed that in the case at bar the company knew of the
bankruptcy proceeding in ample time, and failed to prove its
claim for the excess of its damages over the value of the unpaid
for work, simply because it regarded the claim as worthless.
Under this assumption, the discharge in bankruptcy, when
granted, wiU bar the claim for the excess as a liability against
Page (In re Hilton [D. C] 104 Fed. 981) ; and the faUure of
the railway company to prove its claim deprives it of any pos-
sible right to share as a creditor in the distribution of the bank-
rupt estate (In re Shaffer [D. C] 104 Fed. 982). But we think
it cannot be true that such failure to prove the claim to the
excess in the bankruptcy proceeding leaves the company in the
position of a mere debtor. Statutes of limitation are strictly
construed. But even if the rule of construction were otherwise,
the language of the clause in question and its context seem to
us to plainly limit its effect to proceedings iij bankruptcy. In
enacting the bankrupt act Congress could have had no reason
for requiring a debtor creditor, whose claim against exceeds his
debt to the bankrupt, to prove the excess and insist upon his
rights as a creditor of the estate. And hence there was no rea-
son for penalizing such failure by imposing a limitation upon
the right of a person thus situated who does not wish to prove
/^nd claim the excess. The full purpose of § 57 n seems to us to
/ be subserved when it is held that the limitation applies merely
I to claims sought to be asserted in the bankruptcy proceeding.
We think the tme solution of the question before us is that
tiajesomtK
whicE^maAi
the counterclaim whichmay be set off in an independent action
brought by the trustee is (subject to the restrictions of § 686,
30 Stat. 565 [U. S. Comp. St. 1901, p. 3450] ) one that is prov-
able in its nature, and need not necessarily be one that has been,
or may yet be, proved in the bankruptcy proceeding. § 20 of
the bankrupt act of 1867 provided: •'- —
"That in all cases of mutual debts or mutual credits between
the parties the account shall be stated, and one debt set off
a^gainst the other, and the balance only shall be allowed or paid ;
but no set-off shall be allowed of a claim in its nature not prov-
able against the estate. * * * "
§ 68 of the present act reads, so far as now material :
"In all cases of mutual debts or mutual credits between the
estate of a bankrupt and a creditor the account shall be stated
and one debt shall be set off against the other, and the balance
only shall be allowed or paid. A set-off or counterclaim shall
MUTUAL DEBTS AND CREDITS 633
not be allowed in favor of any debtor of the bankrupt which is
not provable against the estate."
In Morgan v. Wordell, 178 Mass. 350, 59 N. E. 1037, 55 L.
R. A. 33-41, Mr. Justice Holmes, said:
''The present statute leaves out the words *in its nature,' but
we can have no doubt that it was intended to convey the same
idea as the longer phrase in the last preceding act, from which
in all probability its words were derived. 'Provable' means
provable in its nature at the time when the set-off is claimed,
not provable in the pending bankruptcy proceedings."
It may be true that Page's liability to the company was at
the time of the filing of the petition and at the date of the ad-
judication contingent. But before this liability was asserted as
a counterclaim it had become fixed and certain in amount. It
was certainly provable in nature when it was asserted in the
court below. The contention of defendant in error based on the
theory that the railway company is securing a preference seems
to us without merit. If a counterclaim is provable in its nature,
and if it was not acquired as forbidden by § 686, we find noth-
ing in the bankrupt act to prevent its use under the circum-
stances existing here.
* • •
We are of the opinion that the learned trial court erred in /
rendering judgment against the railway company, and the judg- /
ment below must be reversed, and the cause remanded.
Reversed.
WAGNER V. BURNHAM
224 Pa. St. 586, 73 Atl. 990
(Supreme Court of Pennsylvania. May 10, 1909)
Assumpsit to recover balance due on a building contract by
Louis Wagner, as trustee in bankruptcy of Charles Gilpin,
against George Burnham and others. From an order discharg-
ing a rule for judgment for want of a sufficient affidavit of de-
fense, plaintiff appeals.
MESTREZAT, J. We think the learned court below was
right in discharging the rule for judgment for want of a suffi-
cient affidavit of defense. Charles Gilpin entered into a contract
with the defendants to tear down an old building and erect a
634 ADMINISTRATION
new building in the city of Philadelphia. After performing
part of the work, he filed a voluntary petition in bankruptcy,
and was duly adjudicated a bankrupt. The plaintiff is his trus-
tee in bankruptcy. At the date of the bankruptcy, Gilpin was
indebted to certain subcontractors for work done and materials
furnished who subsequently to that date entered mechanics'
liens against the property of the defendants to enforce their
claims. The defendants were compelled to pay these claims.
This suit was brought by the trustee to collect the amount due
Gilpin on the contract, and the defendants claim as a defense
a set-off for the amount which they were compelled to pay the
subcontractors on the mechanics' liens filed against their prop-
erty. The right to interpose this set-off as a defense in this
action and thereby defeat the plaintiff's recovery is the only
question in the case.
The right to the set-off depends upon the provisions of the
bankruptcy act (Act July 1, 1898, c. 541, § 1, 30 Stat. 544 [U. S.
Comp. St. 1901, p. 3418]), relative thereto. The part of the act
controlling the question is § 68, which provides, inter alia, as
follows: "In all cases of mutual debts or mutual credits be-
tween the estate of a bankrupt and a creditor the account shaU
be stated and one debt shall be set off against the other, and the
balance only shall be allowed or paid. A set-off or counterclaim
shall not be allowed in favor of any debtor of a bankrupt which
is not provable against the estate. ' ' Is the counterclaim or set-
off of the defendants in this action allowable under this provi-
sion of the bankruptcy act ? It is strenuously contended by the
plaintiff that the defendants' claim was contingent, uncertain,
was not provable against the bankrupt at the date of the adjudi-
cation in bankruptcy, and therefore cannot be allowed as a set-
off. This view, however, we think entirely overlooks the nature
and character of the defendants' claim as well before as at the
time it was interposed as a set-off. At the date of the adjudica-
tion the bankrupt was indebted to the subcontractors on the
claims which were subsequently paid by the defendants. The
primary liability for payment of these claims rested upon the
bankrupt, and the claims could have been enforced against him
to the extent of his liability to pay. By the law of this state,
however, the subcontractors had a lien against the property of
the defendants for the work done and the materials furnished
by them. This property was made subject to a statutory lien to
secure the payment of the debts of the subcontractors, and by a
MUTUAL DEBTS AND CREDITS 635
subsequeut section of the statute the lien of the claim took effect
* ' as of the date of the visible coniraencement upon the ground of
the work of building the structure or other improvement. ' ' The
lien of the subcontractor's claim, therefore, began with the com-
mencement of the work on the defendants' premises, and was, of
course, in full force and effect at the date of the adjudication in
bankruptcy. It was inchoate from the beginning, it is true, but
it was an existing claim or demand for which the defendants'
property was liable on failure of the contractor to pa,y. During
the time for filing the lien the subcontractors had a preferential
statutory claim in the nature of a nonperfected equitable lien
which was perfected by filing the lien after the adjudication in
bankruptcy, but within the statutory period. In re Grissler,
136 Fed. 754, 69 C. C. A. 406. The statute provides the method
for perfecting and enforcing the lien, and the bankruptcy of
the contractor does not prevent its enforcement. § 20 of the
mechanics' lien law of June 4, 1901 (P. L. 431, 3 Purdon's Dig.
[13th ed.] 2487), makes specific provision for the enforcement
of the claim after the insolvency or bankruptcy of the contractor
as follows: "When any such contract has been suspended or
ended, the right to file a claim or to sue under the contract shall
remain, and may be exercised with the same effect as if further
proceedings under such contract had been determined by con-
sent of all parties. ' ' The work was done and the materials were
furnished prior to the adjudication in bankruptcy. The subcon-
tractors, therefore, had the right to file a lien and enforce it
under the terms and within the statutory period provided in the
act of 1901. The lien, however, of the subcontractors did not
arise or was not created by the filing of the claim in the common
pleas for the purpose of its enforcement, but came into existence
at the commencement of the improvement of the defendants'
property by the contractor. The claim, therefore, of the sub-
contractors, now held by the defendants and proposed to be set
off by them against the plaintiff's demand, existed in its inchoate
form at the date of the adjudication in bankruptcy, and was
subsequently perfected by filing a lien in conformity with the
provisions of the act of 1901. "While the primary debtor of the
subcontractors was the contractor whose duty it was to pay the
claim, the property of the defendants, and hence the defendants
themselves, were the statutory sureties for the payment of the
debt of the bankrupt to the subcontractors. Bassett & Brown v.
Baird, 85 Pa. 384. A surety paying the debt of his principal
636 ADMINISTRATION
after bankruptcy may under the bankrupt act of 1898 set off
the amount so paid against his debt to the bankrupt. In re Dil-
lon (D. C.) 100 Fed. 627. It is clear, we think, that the claim
of the defendants sought to be set off in this action is for money
expended by them as quasi surety for the bankrupt, and is there-
fore a ''mutual credit" within contemplation of §68 of the
bankrupt act. It should not be overlooked that the right of the
debtor to a set-off in an action brought against him by the trus-
tee is not based upon the rules of equitable set-off administered
in the state courts, but upon those rules which prevail in the
federal courts which are generally broader and more liberal in
permitting the set-off. These rules must be observed by the
state courts in construing the bankrupt act.
Is the proposed set-off "provable against the estate" of the
bankrupt within the meaning of § 68 of the act? This question
must receive an affirmative answer unless we interpret the sec-
tion differently from the decisions of two courts of the highest
respectability, one of which is a federal court whose construction
of an act of Congress we must accept. After a very careful con-
sideration of the bankruptcy act, we are satisfied that the con-
clusion of those courts is correct, and that a counterclaim ' * prov-
able against the estate" of the bankrupt by his debtor in an
action brought by the trustee is such claim as is provable in its
nature at the time the set-off is sought to be enforced. The
status of the claim at that date determines its provability in con-
templation of the act of Congress. This is conclusively shown by
Holmes, C. J., now a justice of the Supreme Court of the United
States, in the opinion in Morgan v. Wordell, 178 Mass. 350, 59
N. E. 1037, 55 L. K A. 33. This was an action by a trustee of
a bankrupt, and the defense was set-off, the defendant claiming
that he occupied the position of a quasi surety who had paid
and therefore was subrogated to the claim of a joint creditor of
himself and the debtor. The right to a set-off under § 68 of the
bankrupt act was the question at issue, and in delivering the
opinion the chief justice said, inter alia: "The defendant also
claims a set-off by virtue of his covenant. "We assume that it has
been adjudicated between the parties in the District Court that
the defendant has not a claim which he could prove in his own
name, and that this decision carries with it the corollary that
he could not prove his claim on the covenant against the estate.
If, therefore, the prohibition of a set-off of a claim 'which is not
provable against the estate ' is to be taken with simple literalness
MUTUAL DEBTS AND CREDITS 637
as applying to any claim that could not be proved in the existing
bankruptcy proceedings, the defendant's set-off cannot be main-
tained. But we are of opinion that the seemingly simple words
which we have quoted must be read in the light of their history
and in connection with the general provision at the beginning
of § 68 for a set-off of mutual debts ' or mutual credits, ' and
that so read they interpose no obstacle to the defendant's claim.
The provision for the set-off of mutual credits is old. But, while
the provision as to mutual credits was thought to be more exten-
sive than that as to mutual debts, it was held that even the
broader phrase did not extend to claims which, when the moment
of set-off arrived, still were wholly contingent and uncertain,
such, for instance, as the claim upon this covenant would have
been if the defendant had not yet been called upon to pay any-
thing upon the original partnership debt. But the moment when
the set-off was claimed was the material moment. The defend-
ant's claim might have been contingent at the adjudication of
bankruptcy, and so not provable in the absence of special pro-
visions such as are to be found in the later bankrupt acts in
England and in the United States act of March 2, 1867 (14
Stat. 517, c. 176), although not in the present law, and yet if it
had been liquidated, as here, by payment, before the defendant
was sued, he was allowed without question to set it off (citing
authorities). The limitations worked out by these decisions
were expressed in the section of the act of 1867 cited above, in
the words, ' but no set-off shall be allowed of a claim in its nature
not provable against the estate. ' These words, as it seems to us,
following the eases, refer yet to the nature of the claim at the
moment when it was sought to set it off, not to its nature at the
beginning of the pending bankruptcy proceedings, and did not
prevent a set-off of a claim which was liquidated at the later
moment merely because, when the bankruptcy proceedings
began, for some reason it did not admit of proof. * * *
'Provable' means provable in its nature at the time when the
set-off is claimed, not provable in the pending bankruptcy pro-
ceedings." This case is followed and approved by the United
States Circuit Court of Appeals in Norfolk & W. Ry. Co. v.
Graham, 145 Fed. 809, 813, 76 C. C. A. 385, 389. In that case it
is said, inter alia : ' ' "We think that the true solution of the ques-
tion before us is that the counterclaim which may be set off in
an independent action brought by the trustee is * * * one
that is provable in its nature, and need not necessarily be one
638 ADMINISTRATION
that has been, or may yet be, proved in the bankruptcy proceed-
ing. * * * It may be true that Page's liability to the com-
pany was at the time of the filing of the petition and at the
date of the adjudication contingent. But, before this liability
was asserted as a counterclaim, it had become fixed and certain
in amount. It was certainly provable in its nature when it was
asserted in the court below."
It follows from what has been said that the judgment of the
common pleas should be affirmed.
The assignments of error are overruled, and the judgment is
affirmed.^
NEW YORK COUNTY NAT. BANK v. MASSEY
^ 192 U. S. 138, 48 L. Ed. 380, 24 Sup. Ct. 199
"iir^ • tt \y, [See this case given on page 275, (mte\ jT^
^ft^ / ■
^ ' c^-^ GERMANIA SAVINGS BANK & TRUST CO. v. LOEB
r.
^ ^- 188 Fed. 285, 110 C. C. A. 263
(Circuit Court of Appeals, Sixth Circuit. May 2, 1911)
This is an appeal from an order of the District Court disal-
lowing the claim of appellant against the bankrupt's estate in
default of the performance of certain conditions hereafter stated.
The proof of claim alleged ag. indebtedness of the bankrupt. to
the bank of $10,387.39. The proof was construed as claim-
ing that amount as a balance remaining of $20,000 loaned by
the bank, less $9,612.61 deposited by the bankrupt in the bank
and applied by the latter as an offset against the original indebt-
edness. It is alleged in such proof, with reference to the origin
of the debt, that on or about January 30, 1908, the bankrupt
secured from claimant $20,000, upon representations that the
, company had a paid-in capital stock of $80,000; that it was a
1 successful corporation, and had made profits in excess of $30,-
000 ; that on February 13th claimant first learned of the falsity
of said representations, and thereupon demanded back its money.
The trustee excepted to the claim upon the grounds, first, that
the bank had received a preference of a large amount within
four months before the bankruptcy, while the Mercantile Com-
pany was insolvent; and, second, that a large amount of the
bank deposits were made under an agreement, between the rep-
MUTUAL DEBTS AND CREDITS 639
resentatives of the bankrupt and the bank respectively, that they
should be held as a special deposit, and that no right of offset
existed as to such amount.
The referee reported, in substance sufficient for this opinion,
the fact of the making of the loan of $20,000 about January, 28,
1908: that about February 1st following it became known to
the officers of the Mercantile Company that one of its officers
was short in his accounts about $4,000, and had forged $6,000
of the stock of the company ; that at least one of the officers of
the Mercantile Company knew that as much as $35,000 of the
capital stock of the company had not been paid for; that part
of this forged stock had been hypothecated with appellant; that
in order to avoid trouble with one of the stockholders, who had
become dissatisfied, the president of the Mercantile Company
had bought his stock, giving in part payment therefore the check
of the Mercantile Company upon the appellant bank; that, for
the purpose of ascertaining the exact condition of the company,
its attorney had ordered an inventory taken; that on February
5, 1908, the officers and agents of the appellant bank knew of
certain of the irregularities before stated, were advised of the
order for taking an inventory, and that the books of the Mer-
cantile Company were being audited, and had sufficient infor-
mation to put them upon inquiry respecting the insolvency of
the Mercantile Company ; that the latter was at the time actually
insolvent, and that its officers knew it; that on February 5th a
conference was had between the respective attorneys of the bank
and the bankrupt — the former having sent for the president of
the Mercantile Company, and the attorney appearing in his
stead, on account of the alleged illness of the president; that
both attorneys realized that the Mercantile Company was in a
critical condition ; that the bank 's attorney desired to protect its
interests, and that the attorney of the bankrupt ' ' realized that it
would be dangerous at that time for any action to be started
against the company, and was willing to do anything reasonable
to prevent litigation;" that the bankrupt had at the time on
deposit in the bank $5,970.23; that the bankrupt's attorney
thought that, unless the bank could at once be satisfied, it would
refuse to cash checks for the money then on deposit; that the
bankrupt's attorney did not then know that his client was
insolvent, and stated that he was informed and believed that it
was solvent, that it owed not more than $65,000 and had $100,-
000 of assets, but that the exact condition could not be known
640 ADMINISTRATION
until the examination of the books and taking of inventory were
completed, and stated that if the bank were to take steps at that
time to protect its interests the collapse of the bankrupt's business
would result, and asked that no action be taken by the bank, but
that matters ''remain as they are," under an arrangement that
the Mercantile Company should draw out no more than it should
subsequently deposit — thus always leaving a balance equal to
the existing balance, and thus the bank be not prejudiced in
case the Mercantile Company should prove insolvent; but that,
while the evidence did not show whether the bank's attorney
replied to this proposition, no objection was made to it, and that,
the bank having accepted subsequent deposits, the Mercantile
Company's attorney understanding the proposition was satis-
factory, the former was bound by the transaction.
It appeared that on February 11th the accounting of the Mer-
cantile Company's affaii*s was completed, showing that it owed
upwards of $138,000, instead of not more than $65,000, as be-
lieved by its attorney at the time of the conference of February
5th ; that but $28,000 of the $80,000 capital stock subscribed had
actually been paid for ; and that the inventoried assets amounted,
at the valuation placed upon them, to but slightly more than the
amount of the debts. The bank, upon learning this situation,
j on February 11th or 12th, refused to honor further checks of
I the Mercantile Company, and its checks to the amount of more
than $6,000 drawn, and in part issued, for current expenses or
current debts, were accordingly either dishonored by the bank
or withheld from delivery, by reason of such notification from
i,, the bank. On February 13th the latter demanded from the
(Mercantile Company the return of the $20,000 borrowed, to-
gether with check for the balance of the latter 's bank deposit,
with notice that the bank had already applied the same upon
said indebtedness. The creditors' petition for bankruptcy was
filed the next day.
The referee held that the arrangement by which the money
then on deposit should not be checked against did not constitute
a preference under the circumstances of the case, including the
fact that the bankrupt's attorney knew that if any of the rep-
resentations made to the bank, on which the $20,000 was bor-
rowed, were untrue, the latter could repossess itself of the money
then on deposit, and that he also must have known that in case
of insolvency proceedings the bank would have the right to off-
set the money then on deposit, and accordingly held that the
MUTUAL DEBTS AND CREDITS 641
bank was entitled to offset the balance on deposit February 5,
1908, against the bankrupt's indebtedness. The amounts de-
posited in the bank after February 5th and until February 13th,
less the amount of the cheeks cashed between those dates, was
$4,514.08. The referee held that the Mercantile Company had
the right to control its deposits made after February 5th, and
that in view of the talk between the attorneys "the bank must
receive the deposits as suggested, or decline them ; ' ' that it was
the intention of the attorney and other officers of the Mercantile
Company that the rights of both parties should be fixed on Feb-
ruary 5th; and that the subsequent deposits were made by the
agents of the Mercantile Company "with the understanding
that they were not to be molested by the bank and that they
would have the right to withdraw them as they saw fit;" and
that as the Mercantile Company's affairs were being conducted
by subordinate agents, who were striving to preserve the assets
and protect the interests of all creditors alike until the exact
condition of the business could be ascertained, the deposits made
aft^r February 5th were not made in the ordinary business way,
but in such way as to create a trust relation, and thus to pre-
clude a right on the part of the bank to offset them against the
Mercantile Company's debt. It was accordingly ordered that
upon the payment of the latter balance ($4,514.08), deposited
after February 5th, the bank might prove its claim for what
remained after making the offset of the balance previous to that
date, together with its claim for the $4,514.08 so to be paid in,
and that in default of such payment the entire claim should be
disallowed.
The referee's order was reviewed by the District Judge, upon
petitions therefor by both the bank and the trustee. The judge
agreed with the referee as to the facts relating to the deposit
balance of February 5th, but was of opinion that the agreement
and understanding that the bank should withhold the taking of
legal proceedings against the bankrupt until invoices should be
taken and the exact condition of the Mercantile Company ascer-
tained, and that the latter should not check against this balance,
in connection with the arrangement for further deposits to be
checked against, amounted to the giving of a preference to the
bank, under § 60 (5fthe act, and accordingly held that the bank
had no right to offset the balance of February 5th against the
bankrupt's debt. As to the balance of deposits made after Feb-
ruary 5th, the judge approved the action of the referee in hold-
H. & A. Bankruptcy — 41
642 ADMINISTRATION
ing that such balance was a trust fund, and, while not in formal
terms confirming the referee's conclusions of fact, in effect did
80, holding that the bank's refusal to honor checks that were
drawn by the bankrupt against this subsequent balance, and its
attempt to apply the same to the indebtedness which the bank-
rupt owed the bank, amounted to a conversion. An order was
accordingly entered denying the offset of $5,970.23, but provid-
ing that upon the payment of that sum to the trustee the bank
might prove its claim for the entire amount of the debt, and that
in default of such payment the entire claim be disallowed, but
adjudging that the bank is a debtor to the estate of the bank-
rupt in the amount of $4,514.08, and rendering judgment in
favor of the trustee accordingly, with interest from February 5,
1908, with provision for the withholding of dividends upon the
bank's claim until the last-named sum, with interest, be paid, as
well as for issue of execution against the bank for any balance
thereof in case the item of $5,970.23, with interest, should not
be paid, or in case the dividends did not amount to $4,514.08,
with interest. The costs of the proceedings for review were ad-
judged against the bank. It is conceded by appellee that the
proper balance on deposit February 5, 1908, was $5,098.53, in-
stead of $5,970.23, as found by the referee.
KNAPPEN, Circuit Judge (after stating the facts as above).
The first question presented is whether the agreement of Feb-
ruary 5th between the Mercantile Company and the bank
created, as to the then existing deposit balance of $5,098.53, a
preferential transfer within the meaning of the bankruptcy act.
§ 60a of the act provides that :
"A person shall be deemed to have given a preference, if,
being insolvent, he has, within four months before the filing of
the petition * * * made a transfer of any of his property,
and the effect of the enforcement of such * * * transfer
will be to enable any one of his creditors to obtain a greater per-
centage of his debt than any other of such creditors of the same
class."
§ 68a provides that :
"In all cases of mutual debts or mutual credits between the
estate of a bankrupt and a creditor the account shall be stated
and one debt shall be set off against the other, and the balance
only shall be allowed or paid. ' '
MUTUAL DEBTS AND CREDITS 643
It has been authoritatively decided by the Supreme Court,
in considering these two sections, that the balance of a regular
bank account at the time of filing the petition is a debt due to
the bankrupt from the bank, and in the absence of fraud or
collusion between the bank and the bankrupt, with the view of
creating a preferential transfer, the bank need not surrender
such balance, but may set it off against notes of the bankrupt
held by it, and may prove its claim for the amount remaining
due on the notes. N. Y. County National Bank v. Massey, 192
U. S. 138, 24 Sup. Ct. 199, 48 L. ed. 380.
The Massey Case is decisive of the question we are considering,""
unless the case before us is distinguishable either by the fact
that the notes here in question were not due at the time of the
bankruptcy, or because of the existence of fraud or collusion
between the bank and the Mercantile Company, with the view of
creating a preferential transfer.
As to the nonmaturity of the notes :
The word * * debt, ' ' as used in § 68a includes any debt provable
in bankruptcy. Bankr. Act 1898, § 1, cl. 11 ; Loveland on Bank-
ruptcy (3d ed.) p. 369. And a debt is provable, whether due or
not at the time of bankruptcy. Bankr. Act 1898, § 63a (1). It
is thus immaterial to the application of § 68a. whether or not the
notes were due. Collier on Bankruptcy (8th ed.) p. 793; Love-
land on Bankruptcy (3d ed.) p. 372; Moch v. Market St. Na-
tional Bank (3d Circuit), 107 Fed. 897, 47 C. C. A. 49; In re
Semmer Glass Co. (2d Circuit), 135 Fed. 77, 67 C. C. A. 551.
A careful consideration of the record constrains us to the
opinion that there was no fraud or collusion between the bank
and the bankrupt_for_the purpose of creating a preferential
transfer with respect to the depositbalance^jQ~question. TTls
ncft^^aSdroauld notlBe, contended that thefe~was auy^ collusion
in respect to creating this balance. If collusion existed, it must
be found in the agreement between the bank and the Mercantile
Company that the deposit should remain in the bank during the
investigation of the solvency of the Mercantile Company, and for
the purpose of permitting the bank to apply this balance upon
its notes in case the Mercantile Company should turn out to be
insolvent. This question must be answered in the light of exist-
ing conditions. The suggestion that the balance be not drawn
upon came from the Mercantile Company's attorney, because he
thought such arrangement only fair to the bank as preventing
prejudice to it, through its failure to take action to protect its
644 ADMINISTRATION
interests, including the possible repudiation of the credit as ob-
tained by misrepresentation. The Mercantile Company was at
the time actually insolvent. The bank had the power (as dis-
tinguished from the right) to refuse checks upon its deposit bal-
ance. If the Mercantile Company proved insolvent, or the credit
turned out to have been obtained by fraudulent misrepresenta-
tions, the bank had the right to so refuse. Such refusal would
naturally have tended to precipitate hostile action by the cred-
itors of the Mercantile Company, and when the condition of the
company was actually learned would naturally have brought
rabout bankruptcy proceedings. It was, to our minds, entirely
, proper that the Mercantile Company should, in these circum-
stances, arrange for a continuance of the existing status, which,
should the Mercantile Company prove solvent, would be of bene-
fit to it, and, should it prove insolvent, would merely give the
bank the same rights as it would have if then existing insolvency
k were recognized. The transaction in no sense amounted tg_ a,
hypothecation of this balance, as suggested by appellee 's coun-
sel. The fact that the bank had reason to believe the Mercantile
Company was insolvent did not affect its right to set-off. In the
Massey Case a portion of the deposits held applicable by way of
set-off were made after the bank had knowledge of the debtor's
insolvency. The testimony of the attorney of the Mercantile
Company, in our opinion, distinctly repels the inference of an
intent to give the bank a preference. "We think the bank should
have been allowed to offset the deposit balance of February 5th
upon the bank's notes.
As to, the balance_of depositsjnade after February 5th :
It-tbe-bank held these deposits as trustee for the Slercantile
Company, the right toset off.the same against the latter 's notes
did not exist. Under the authority of Western Tie & Timber
Co. v. Brown, 196 U. S. 502, 25 Sup. Ct. 339, 49 L. ed. 571, the
bank was entitled to prove its debt vdth the set-off in question
eliminated, but remained a debtor to the bankrupt for the amount
of the deposits; and if such trust relation existed, the action
taken by the court in protection of the bankrupt's estate, with
respect to dividends on the bank's claim, in case of the latter 's
failure to make payment of the trust fund, was proper, unless
as regards the award of execution for balance not covered by
dividends, as to which question we do not find it necessary to
express an opinion.
The alleged trust relation, including the conversion recognized
MUTUAL DEBTS AND CREDITS 645
by the District Judge, rests upon the existence of an under-
standing between the bank and the Mercantile Company that
the latter should be at liberty to withdraw the entire amount
of its deposits made after February 5th, and that the bank should
not be at liberty to set off against the Mercantile Company's
notes any balance that should not be so drawn out, and that such
deposits were not made in the ordinary course of business, ^ut
becameinfact a special deposit. Upon a careful examination oi
t.hftrftcoTJ^jwg^rftjgo^ to hold that the evidence^does ngt.
warrant such conclusion. The referee has not found as a fact
that there was any agreement to that effect between the parties,
or even an understanding to that effect on the part of the bank.
As we read the record, there is no direct testimony of any ex-
press agreement or mutual understanding to that effect. There
is nothing in the testimony of the bank's attorney which, in our
opinion, warrants such inference. On the other hand, the attor-
ney for the Mercantile Company, while testifying to the state-
ment to the bank's attorney that he would see that the Mercantile
Company should not make withdrawals in excess of the new
deposits, does not state that the bank was even asked to agree
that all the new deposits might be checked against. The sub-
stance of the testimony of the Mercantile Company's attorney
on this point is that he was anxious to have the banking rela-
tions continued without hostile steps upon the part of the bank,
and that in order to induce the latter to continue such relations
he agreed that the bank's status should not be impaired by
an attempt on the part of the Mercantile Company to with-
draw more than it should deposit. It is true that the Mercantile
Company 's attorney testified that his ' ' idea was that the propo-
sition was that the Block Mercantile Company should be abso-
lutey free to withdraw every cent that it deposited after that
date," and that **if there had been any scheme on the part of
the bank, or anything that would have kept us from using the
money during this investigation, I would have had to make some
other arrangement and found another place to deposit," and
that if he had understood in his own mind that his clients could
not withdraw against subsequent deposits he would not have ad-
vised them to make their deposits in the same bank. To the
definite question as to the bank's acceptance or rejection of
the suggestion he replied :
"I want to say this: That Mr. Hirsh [the bank's attorney]
was pressing me for information which I did not have, and I was
646 ADMINISTRATION
holding him up until I could get it, so it looked to me like a
fair proposition. Now, as to whether that was accepted or re-
jected, in this way it must have been that I thought it was going
to go through. I mean by that certainly I would be permitted
to withdraw against deposits, or I never would have done it. ' '
And again:
' ' I have stated repeatedly in this examination that I could not
remember what answer that Mr. Hirsh made to my suggestion,
as to continuing present deposits intact and the subsequent de-
posits to be withdrawn."
-'^his testimony, in our opinion, falls short of evidencing a con-
tract or understanding whereby the Mercantile Company should,
under any and all circumstances, have the right to draw out all
the new deposits, or whereby the new deposits should be held
/in any way as a special deposit differing from the ordinary bank
Ijdeposit. The attorney of the Mercantile Company seems not
unnaturally to have assumed that so long as the Mercantile
Company was continuing to do business in the usual way, and in
advance of a development of its insolvency, checks on the bank
account would be honored. But we find no agreement or mutual
understanding to that effect. Such course was in fact taken ; for
it was not until after the accounting of the Mercantile Company 's
affairs was completed, showing that its financial condition was
much worse than believed by its attorney on February 5th, and
suggesting probable insolvency, and indicating that a portion
at least of the credit extended to the Mercantile Company was
procured by false representations, that the bank refused to honor
further checks. In our opinion there was, to say the least, no
room for finding an understanding between the bank and the
bankrupt that the bank waived its right of set off on account of
any balance that might remain after such situation was found
to exist. Nor do we think that the fact that the bankrupt's busi-
ness was during the examination of its affairs being managed by
subordinates, rather than by its usual officers, changed the nature
of the deposits from the ordinary relation. * • *
It follows, from the views we have expressed, that the order of
the District Court should be reversed, with directions to allow
the balance claimed in full after the application thereon, by way
of set-off, of the entire amount of bankrupt's deposit balance in
the bank. "27
27 — See Heyman v. Third Nat.
Bank, 216 Fed. 685.
EXEMPTIONS 647
SECTION IV
EXEMPTIONS
CHICAGO, B. & Q. B. CO. v. HALL
229 U. S. 511, 57 L. ed. 1306, 33 Sup. Ct. 885
[See this case given on page ^91^ante.] JU-r^A
InreCOHN ^^^.,..,^ .
171 Fed. 568 J^^ ^
(District Court, D. North Dakota, S. E. D. July 28, 1909)
AMIDON, District Judge. The above bankrupt filed his vol-
untary petition in bankruptcy on the 5th day of December, 1908.
About the 1st of July, 1908, he made final proof upon a govern-
ment homestead, and received his final receipt entitling him to
a patent therefor. All_debts scheduled by_the_ bankrupt were,
incurred prior to the ^ate-oliii&making such_final proof. In his
schedules he claimed the homestead as exempt both under the
laws of North Dakota and under § 2296 of the Revised Statutes
of the United States (U. S. Comp. St. 1901, p. 1398). The trus-
tee set the land off to him as his homestead, under the state
laws. One of his creditors filed exceptions before the referee
to this action of the trustee, and asked that an order be entered
denying the bankrupt's right to the land as a homestead, and
directing the trustee to take possession of the same and apply it
to the satisfaction of the bankrupt's debts. This question was
fully presented before the referee, by counsel for the respective
parties, upon voluminous testimony. As the result of such hear-
ing, the referee found that the bankrupt prior to the time ^fjhe^
filing of his petition in bankru^cy had removed from the state
of North Dakota, in wMch^the homestead is situated, and taken
up his residence in the city Qf_Hinneapoiis, in the state of Min- j,
nesota, and that he had thereby abandoned his homestead as an
exemption under the laws of the state of North Dakota, and lost
all right to claim the same as exempt under those laws ; but the
referee further held that the homestead was exempt from the
claims of all creditors whose indebtedness was incurred prior to
the date of the making of final proof, and entered an order so
648 ADMINISTRATION
declaring, and directing that the homestead be applied only to
the payment of those debts, properly proven, which had arisen
since the bank^ugt^ madej&nal^jproof^for his homestead. A cred-
itor whose claim accrued prior to the making of such final proof
excepted to this order of the referee, and at his request the order
has been certified to the court for review.
The bankrupt has filed no exceptions to the order of the ref-
eree, and cannot therefore be heard to object to any of its pro-
visions. If this were not the case, it is quite likely that he would
have just cause to complain of the order because it limits his
exemption from debts to those which accrued prior to the mak-
ing of his final proof ; whereas, § 2296 of the Revised Statutes
declares that the homestead shall not ' * in any event become liable
[to the satisfaction of any debt contr^Mgd^ prior to thp issniTig of
the patent therefore ' ' There is no evidence presented here show-
ing that any patent has ever been issued. It is the issuance of
the patent which fixes the time when the property shall become
liable to subsequent debts of the homesteader. Barnard v. Boiler,
105 Cal. 214, 38 Pac. 728 ; Wallowa National Bank v. Riley, 29
Or. 289, 45 Pac. 766, 54 Am. St. Rep. 794.
Counsel for the objecting creditor contends that § 2296 of the
Revised Statutes is repealed by §§ 6 and 70, subd. 5, of the
bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 548, 565 [U.
S. Comp St. 1901, pp. 3424, 3451]). § 6 simply provides that
the bankruptcy act shall not affect the allowance to bankrupts of
the exemptions which are prescribed by state laws. Plainly this
section deals solely with state laws. It is declaratory in its
character. Its purpose is to save exemptions allowed by state
laws, not to abolish those allowed by federal law. Its language is
affirmative, and ought not to be given a negative effect, in the
absence of a clear manifestation of such a legislative purpose.
Potter's Dwarris, 69. § 70 declares that the trustee shall be
vested with the title of the bankrupt (except property which is
exempt), to all "(5) property which prior to the filing of the
petition he could by any means have transferred, or which
might have been levied upon and sold under judicial process
against him." The land in question does not come within the
provisions of either branch of this section. Down to the time
of final proof, the entryman could not transfer his homestead.
§§2288 and 2291, Rev. St. (U. S. Comp. St. 1901, pp. 1385,
1390). Nor could any of the creditors whose claims have been
proven have levied upon or sold the homestead for the collec-
EXEMPTIONS 649
tion of their debts. Such action is clearly forbidden by § 2296
of the Kevised Statutes. Seymour v. Sanders, Fed. Cas. No.
12,690; Baldwin v. Boyd, 18 Neb. 444, 25 N. W. 580; Shoemaker
V. Stimson, 16 Wash. 1, 47 Pac. 218 ; Jean v. Dee, 5 Wash. 580,
32 Pac. 460; Brown v. Kennedy, 12 Colo. 235, 20 Pac. 696. There
is certainly no such inconsistency between the bankruptcy act
and § 2296 of the Revised Stg,tutes as would sustain a repeal of
§ 2296 by implication. Great Northern Railway Co. y. United
States, 155 Fed. 945, 961, 84 C. C. A. 93, and cases there cited.
In some of the cases there are general remarks to the effect
that the state law establishes the rule of exemption under the
bankruptcy act, and that only such exemptions in value and
kind as those laws permit can be claimed by the bankrupt. Steele
V. Buel, 104 Fed. 968, 44 C. C. A. 287; In re Manning (D. C.)
112 Fed. 948 ; In re Wunder (D. C.) 133 Fed. 821. Thej^uestion
before the court in these cases, however, was whether a specific
piece of property came rightfully within the terms of the state
law granting exemptions. In none of them was the question
raised whether a bankrupt was entitled to the protection of the
few federal laws granting to him special rights as against his
creditors. The question here presented therefore must be de-l
termined, not upon such generaTobservations as are found in J
these cases, but upon the_provisions^fjthe statutes themselves.
For example. Rev. St. U. S. §1628 (U. S. Comp. St. 1901, p.
1122), declares that military uniforms, arms, and equipments
shall be exempt from all judicial process These articles are
not exempt under many of the state laws. Could it be reason-
ably contended that such articles pass to the trustee in bank-
ruptcy because they are not covered by state exemption laws?
I think not. The cardinal principle of the bankruptcy act is to
grant to creditors only those rights which would have been theirs
if bankruptcy had not supervened, and to save to the bankrupt
and his family every right and exemption which would have been
theirs as against creditors enforcing their claims by ordinary
judicial process. Thomas v. Woods, 170 Fed. . This prin-
ciple should not be departed from except in obedience to a com-
mand of the statute which is altogether clear. Such feeble in-
consistencies as are here brought to the notice of the court would
afford no justification for such action.
The decision of the_ referee must be affinned, and_it is so__
ordered.
650 f J, cM^ ADMINISTRATION
^^^Jctj^"^ TU Yin re baker
l^iy..^ "TJIS^^- 182 Fed. 392, 104 C. C. A. 602
u^r ^ (Circuit Court of Appeals, Sixth Circuit. May 3, 1910)
WARRINGTON, Circuit Judge. This is a proceeding to re-
vise in matter of law a judgment denying to the petitioner a
homestead exemption in certain real estate. The petitioner was
adjudged a bankrupt under voluntary proceedings begun July
31, 1908. He presented with his petition and schedules his claim
to the exemption under §1702, Ky. St. (Russell's St. §4661).
His real estate consisted of an undivided one-fifth interest in
three parcels of land, which descended to him upon the death
of his brother in June, 1908. The lands were neither improved
nor susceptible of partition ; and the trustee in bankruptcy, un-
der order of the referee made in November, 1908, sold the in-
terest of the bankrupt in the lands for $926, and set apart the
whole of the proceeds of^sale to the, bankrupt as exempt in lieu
of his claim to a homestead.,. Prior to the bankrupfcy^roceed-
ings some of the petitioner's creditors, whose claims antedated
the inheritance, commenced suits in attachment and otherwise
/to subject the land to the payment of these debts. These cred-
itors objected to any allowance of a homestead, and the order
/ of the referee was set aside by the court below.
In view of Bankr. Act July 1, 1898, c. 541, § 6, 30 Stat. 548
(U. S. Comp. St. 1901, p. 3424), the validity of the action of
the trustee in setting apart the bankrupt's exemption and the
rights of the bankrupt in that behalf aje^to bejested by the law
gf K-entucky. The federal courts are accustomed in such cases
to follow the decisions of the court of last resort of the state
whose laws are so drawn in question. In speaking of the Consti-
tution and statutes of Texas respecting homestead exemptions in
a proceeding like the present one in Duncan v. Ferguson-Mc-
Kinney Dry Goods Co., 150 Fed. 269, 271, 80 C. C. A. 157, 159,
Circuit Judge Shelby said :
**It has been the policy of the state of Texas in its Constitu-
tion and legislation, as construed by the decisions of its Su-
preme Court, to favor by liberal interpretations the exemptions
in favor of debtors. These decisions, construing the state Con-
stitution and statutes, are as binding on this court as the Con-
stitution and statutes themselves."
See, also, McCarty v. Coffin, 150 Fed. 307, 310, 80 C. C. A.
EXEMPTIONS 651
195; In re Wood (D. C.) 147 Fed. 877, 878; Huenergardt v.
Brittain Dry Goods Co., 116 Fed. 31, 33, 53 C. C. A. 505 ; In re
Irvin, 120 Fed. 733, 734, 57 C. C. A. 147 ; In re Meriwether
(D. C.) 107 Fed. 102; In re Pope (D. C.) 98 Fed. 722; Loveland
on Bankruptcy (3d ed.) § 177, p. 514.
Since the federal courts cannot administer or distribute ex-
empted property as an asset of the bankrupt's estate, or do more
than to set it apart to the bankrupt (Lockwood v. Exchange
Bank, 190 U. S. 294, 23 Sup. Ct. 751, 47 L. ed. 1061), this prac-
tice of the courts would seem to be in accord with the course
pursued by Mr. Justice Gray respecting a dower right under
the bankruptcy act of 1867 (Act March 2, 1867, c. 176, 14 Stat.
517) in Porter v. Lazear, 109 U. S. 84, 3 Sup. Ct. 58, 27 L. ed.
865. See, also, In re Petition of Carrie E. Hays (decided by this
court March 8, 1910) 181 Fed. 674.
The court below in terms recognized the binding effect in such
matters of decisions of courts of last resort of the states in which
the questions arise ; but, as we understand his opinion the learned,
judge did not think any rule of decision on the present issue
was settled in Kentucky, He said :
"At the outset I would emphasize that the homestead ex-
emption is purely statutory. It is created by statute, and it
exists only as it is so created. The courts cannot adjudge that
to be such an exemption which is not such by the terms of the
statute according to their intent and meaning. They are con-
cerned solely with determining what that true intent and mean-
ing is. This court, however, is not entirely free to do this. It
is limited by any construction of the statute put forth by the
Kentucky Court of Appeals, at least if it clearly appears that
such is its construction, and there is no reason to think that in
any future case it will not adhere thereto. I recognize fully
this restriction upon me, and have no disposition to go beyond
it. But the proper standpoint from which to view any particu-
lar construction of the statute by that court, and to determine
accurately just what it is, is one's own construction. I will there-
fore at the first undertake for myself to ascertain the statute's
true intent and meaning."
We of course agree that where the decisions of the State
Court are in conflict, and point to no definite rule touching the
construction of a statute of the state, the federal courts are
quite as much at liberty to place their own construction upon
the statute as they would be if the State Court had not con-
652 ADMINISTRATION
jstrued it at all. But if there be a rule of decision which is
reasonably clear with respect to a given statute, we think the
federal courts are bound in a case like this to follow the rule,
rather than to undertake to determine upon their own interpre-
tation whether the State Court may not change the rule in the
future. The statute in question provides that :
"* * * there shall, on all debts or liabilities * * * be
exempt from sale under execution, attachment or judgment, ex-
cept to foreclose a mortgage given by the owner of a homestead,
or for purchase money due therefor, so much land including the
dwelling house and the appurtenances owned by debtors, who are
actual hona fide housekeepers with a family, resident in this
commonwealth, as shall not exceed in value one thousand dol-
lars ; but this exemption shall not apply to sales under execution,
attachment or judgment, if the debt or liability existed prior to
the purchase of the land, or of the erection of the improvements
thereon."
It is further provided in substance by § 1705 that where real
estate —
''in the opinion of the appraisers, is of greater value than one
thousand dollars, and not divisible without great diminution of
its value, then the same shall be sold, * * * and one thou-
sand dollars of the money * * * shall be paid to the defend-
ant to enable him to purchase another homestead. ' '
• « *
We do not feel called upon to comment on all the distinctions
urged by learned counsel to exist between a number of the deci-
sions cited in this opinion, and between some of them and others
cited in their brief. Enough has been adduced to show what
we conceive to be the plain trend of decision of the Court of
Appeals, and also why we regard those decisions as controlling
in the present case.
The judgment of the court below is reversed, with direction
that the order of the referee be affirmed, with costs.
tiT^
CHAPTER IV \^ 9'^^^'^^'^^^
COMPOSITIONS \ /^<^1r1;
ZAVELO V. REEVES^
227 U. S. 625, 57 L. ed. 676, 33 Sup. Ct. 365
[See this case given on page 391, ante.]
InreHOXIEetal. r^ ^/^
180 Fed. 508 ^^JjJC^i ^ .j^""
(District Court, D. Maine. July 2, 1910)/^-^ t'-rl^
II ALE, District Judge. The bankrupts were duly adjudicated
on the 15th day of March, 1910, upon an involuntary petition
filed February 26, 1910, At the first meeting of creditors, claims
of 44 creditors, amounting to $9,146.59, were filed. Claims of
certain other creditors, duly scheduled, have not yet been pre-
sented for allowance. Appraisers have been appointed, and have
filed their report, showing the value of the assets of the bankrupts
to be : Real estate, $5,300, which is under mortgage for more
than that amount ; personal property, $4,481.95. The appraisers
report that the basis of their valuation is partly at cost price and
partly at possible selling value. After the bankrupts filed their
schedule and were examined they offered a composition at the
rate of 15 per cent. A majority in number of all the creditors
whose claims have been allowed, namely, 29 creditors, represent-
ing $5,362.06, have accepted in writing the offer of composition.
The referee reports the above facts. He, recommends that the
composition will be for the best interests of the creditors ; that it
is made in good faith, and not procured by any means, promises,
or acts prohibited by the bankrupt law ; and that the bankrupts
have not been guilty of any act, or of any failure in duty, whichl
would be a bar to their discharge. He also assigns certain rea-
sons which have influenced him in coming to his conclusion.
It is provided by § 12^ of the bankruptcy act of 1898 (Act
July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427] )
that the judge shall confirm a composition if satisfied (1) that
653
654 COMPOSITIONS
it is for the best interests of the creditors. There being no
question of the bankrupts having been guilty of any act or of
any failure in duty which would be a bar to their discharge, and
the offer and acceptance having been in good faith, the single
question before the court is whether or not the confirmation of
the composition is for the best interests of all the creditors.
The English rule appears to be that the approval of the major-
ity of the creditors to the offer is final. Under our statute such
approval is evidence, prima facie, that the composition is for the
best interests of the creditors ; and the burden is upon those who
attack the composition. The same rule prevailed under the bank-
ruptcy act of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517). In
Ex parte Jewett, 2 Low. 393, Fed. Gas. No. 7,303, Judge Lowell
said:
"Sl-tJie absence of fraud and concealment, the question for
the court seems to be, not whether the debtor might have offered
morepbut whether his estate would pay more in bankruptcy. ' '
Substantially the same issue is before the court under the pres-
ent act. Adler v. Jones, 109 Fed. 967, 48 C. C. A. 761 ; Adler v.
Hammond, 104 Fed. 862, 44 C. C. A. 229; In re Waynesboro
Drug Co. (D. C.) 157 Fed. 101.
Certain creditors object to the confirmation of the composi-
tion, and file specifications of objections. The examination of the
bankrupts, and all papers relating to the estate, are before me.
It is for the court to determine whether the nonassenting cred-
itors have met the burden of showing that the offer of composi-
tion is inadequate, and that a substantially larger sum may rea-
sonably be expected to result from the administration of the as-
sets under the regular course of bankruptcy proceedings. A sum
less than $1,500 is required to carry out the offer of composition.
The appraisal shows assets amounting to about $4,500. The
learned counsel for the bankrupts urge that the evidence shows
the appraisal to be largely in excess of the available value of the
property. It is not necessary to discuss in detail the different
views taken by counsel touching this matter, or the testimony
to it. It is in evidence that since the adji;idication the business
of the bankrupt firm continues to be carried on, and that many
of the creditors who have accepted the offer continue to supply
the bankrupts with goods, and to do business with them. It
is urged that they are willing to accept the offer for the reason
that their profits in future from the conduct of the business will
fully repay them for their losses in bankruptcy. I do not esteem
COMPOSITIONS 655
it to be my duty to discuss the evidence in detail, or to decide
what induced the assenting creditors to assent. The bankruptcy
law does not make their decision conclusive, but only prima facie.
Their assent does not relieve the court from passing on the ques-
tion whether the composition is for the best interests of all
the creditors. This question is. addressed to the judicial discre-
tion of the court, and from its conclusion either party may
appeal. Adler v. Hammond, supra.
Upon a careful review of the examination of the bankrupts,
the schedules, and all the evidence before me, t_ cannot avoid
the conclusion that the nonassenting creditors have met the bur-
den of showing that the acceptance of the composition will not
be for the best interests of all the creditors. The whole testimony
leads me to the conclusion that the assets should produce nearly
double the offer of 15 per cent. It is with hesitation that I
come to a conclusion opposed to that of the painstaking and com-
petent referee, who assigns some very good reasons for coming
to his conclusions. Some of the reasons which he assigns, how-
ever, are not tenable, and would enlarge the inquiry beyond its
legitimate scope.
The offer of composition is not confirmed.
In re MESSENGILL <i^>i-*^4 .^^j^ V-<^
113 Fed. 366 ^ ':^*'- ^' X' l^
(District Court, E. D. North Carolina. January 27, 1902) "-
PURNELL, District Judge. The referee for the Fourth di-
vision of the district certifies the following as having arisen in
the course of the proceedings to consider a proposition of com-
position pertinent to the proceedings. The facts are certified
that the creditor purchased several claims after the debts had
been allowed! No pleadings or evidence accompany the referee 's
certificate. The question for consideration is thus stated:
**In determining whether or not a majority of the creditors,
whose claims represent a majority of the indebtedness of this
estate in bankruptcy, have signified their agreement in writing
to accept 30% offer of composition, should E. F. Young, to whom
a large number of creditors have sold their claims, be counted
as one creditor, or as the number who have assigned claims to
him? The referee holds that he should be counted as one cred-
itor, and~the bankrupt excepted and appealed to the district
-* -»***
656 COMPOSITIONS
judge. And the said question is certified to the judge for his
opinion thereon, ' '
The foregoing decision of the referee is affirmed. § 12, Bank-
ruptcy Act, should be strictly construed. In re Rider, 96 Fed.
808, 3 Am. Bankr. R. 178. Where a claim has been assigned
after proof, the real owner alone can vote. In re Frank, Fed.
Gas. No. 5,050 ; Loveland, Bankr. § 105. He is one creditor,
holding several claims. _^
^Jl^ c#^|<i' ^ (M^ r In re RIDER ^
^ (District Court, N. D. New York. October 6, 1899)
At the argument it was conceded that the accepting creditors
did not represent a majority in number and amount of all the
creditors whose claims have been allowed, but only such a ma-
jority of those whose claims were allowed at the first meeting of
creditors. At the date of the argument, September 19th, not less
than 30 creditors had proved their debts aggregating $8,554, and
but 12 or 13 creditors representing $4,210 had signed the com-
position agreement. The claims of Holmes Rider, the father of
the bankrupt, for $2,600, and of his mother-in-law for $446, are
included in the above amount of $4,210. The referee, who has
made a most careful and exhaustive return upon the law and
facts, reports as follows: "At that session of April 15th the
bankrupt was examined by his creditors. * * * After such
examination and partly during the session of the meeting, but
not as a part of the proceedings thereof, the bankrupt presented
the proposed written composition herein to 11 of the 15 creditors
in attendance, whose claims aggregated $3,745.44 of the $4,089.02
proved and allowed at that time, all of whom accepted the com-
position in writing at that time and place by instrument dated
that day." It does not appear that the paper was presented to
the remaining four creditors who had proved their debts. It was
not presented to the general creditors at all and they had no
formal information that a composition was on foot, except the
notice that it would be presented to the court for confirmation.
The composition proposed was to pay 30 per cent., one-third in
cash, one- third in four months and one-third in six months. The
deferred payments were to be evidenced by the notes of the bank-
rupt indorsed by his father. There is a marked dispute as to
the value of the bankrupt's estate, the contesting creditors in-
COMPOSITIONS 657
sisting that it will pay much more than 30 per cent. The referee
recognizes the possibility that this contention is well founded,
but is of the opinion "that if the composition could be paid
wholly in cash and without any part thereof being deferred, the
creditors will realize more from a confirmation thereof than they
will to have the estate administered in bankruptcy. ' ' Owing to
the long delay occasioned by the contest the notes originally
deposited are not now available as some of them have already
become due. The amount deposited by the bankrupt for costs
is also inadequate. The financial responsibility of Holmes Rider
is assailed, but the referee finds that he is worth from $7,000 to
$8,000 over and above his present liabilities.
COXE, District Judge (after stating the facts as above). The
effect of a composition is to supersede the bankruptcy proceed-
ings and reinvest the bankrupt with all his property free from
the claims of creditors. As an abstract proposition, considered
for a moment apart from the provisions of the statute, it is en-
tirely clear that a condition so plainly in derogation of common-
law rights should not be permitted, unless it is reasonably certain
that the creditors approve and that they will fare at least as well
as they would were the estate administered in the usual course.
It would be manifestly unfair and opposed to the basic principle
of our institutions to permit a minority to dictate terms to a
majority and compel them, in invitum, to take what the bank-
rupt chooses to offer, or nothing. Indeed, it has been considered
a somewhat dangerous exercise of legislative power to compel
even a minority to surrender all claim upon the debtor's estate at
the dictation of the majority. Certainly no previous law has
permitted a minority to force a compromise. Always the safe-
guard of a majority against favoritism and fraud has been pre-
served. The amendment of 1874 to the law of 1867 provides
that ' ' such resolution shall, to be operative, have been passed by
a majority in number and three-fourths in value of the creditors
of the debtor assembled at such meeting, and shall be confirmed
by the signatures thereto of the debtor and two-thirds in num-
ber and one-half in value of all the creditors of the debtor." 18
Stat. 183, c. 390, § 17. A law which compels a creditor, against
his will, to accept in discharge of his debt just what the debtor
sees fit to offer, should be strictly construed. Loveland, Bankr.
p. 549 ; In re Shields, Fed. Cas. No. 12,784.
The present law should be construed in the light of similar
H. & A. Bankruptcy — 42
658 COMPOSITIONS
Cprior enactments and any doubt should be resolved against those
\ who seek to deprive creditors of the ri^ht to have the debtor's
(property applied to the payment of his debts. Nothing short of
an absolutely plain and unambiguous provision will convince the
court that congress intended for the first time, it is thought, in
the history of bankruptcy legislation to vest such unusual and
dictatorial powers with a minority of the creditors. It may be
assumed that the language of § 12 is not as perspicuous as could
Ibe desired, but, read as a whole, the intention of congress seems
plain to permit a compromise only when sanctioned by a ma-
jority in number and amount of the creditors whose claims have
been allowed, after due notice to them of the bankrupt's proposi-
tion. If the construction contended for by the bankrupt be ac-
cepted it will lead to most inequitable results. Take, for illus-
tration, a case where there are thirty creditors and only three
have proved their debts, for equal amounts, at the time the com-
position is offered. If the bankrupt obtains the consent of two
of them the composition must be confirmed, although the remain-
ing twenty-eight creditors may be in open opposition.
§ 12 is easily capable of a construction compatible with the in-
tent and purpose which has always ruled proceedings of this
kind. After the bankrupt has been examined and filed a list
of his creditors he * ' may offer terms of composition to his cred-
itors." This plainly implies that the offer should be made to
all his creditors whether they have proved their debts or not. It
is not essential that proofs shall be made before, or at, the first
meeting. They may be made at any time within a year after the
adjudication and it is not necessary that they shall be filed, in
the first instance, with the referee. § 57, c. n.
After the terms are thus made known to all the creditors they
have a reasonable time to decide whether they will accept the
offer or not. But in order to qualify themselves to vote upon
the proposition they are required to prove their claims. The
reason for this is obvious; it excludes from the voting all but
hona fide creditors ; it excludes all those who are too indifferent
to present their claims and all whose claims are unliquidated,
fictitious or exorbitant; it gives all creditors notice no matter
what may be the nature of their claims and permits them to
qualify, if they desire to do so, and assent to the compromise or
oppose it, or, if they so elect, they may simply withhold their
assent. After a fair opportunity has been given to all and the
requisite majority of those whose claims have been allowed have
COMPOSITIONS 659
accepted it in writing an application to confirm the composition
may be filed. Even then the composition may be rejected if the
judge be convinced that it is not for the best interests of the
creditors.
A construction which permits the bankrupt to select a time
when but few creditors have proved and then to present his
terms only to such creditors as he believes to be friendly to his
interests, keeping the general creditors in the dark until he has
obtained a majority of the few who have proved, is contrary to
the intent and spirit of the law. It would enable a few active
and friendly creditors on the spot so to manipulate the proceed-
ings that the necessary majority could be secured while distant
creditors were wholly ignorant of the proposed settlement. That
the Supreme Court entertain views similar to the foregoing may
be inferred from form No. 60 (18 Sup. Ct. xlvi.), adopted pur-
suant to general order 38 (Id. x.). ^
"Without pursuing the subject further the court is constrained
to deny jthe application to confirm this composition. The reasons \
for this conclusion may be briefly stated as follows:
First. It is not approved by a majority in number and amount
of creditors whose claims have been allowed.
Second. No notice was given to the general creditors of the
bankrupt.
Third, The composition was not presented to all the cred-
itors whose claims were allowed.
Fourth. At the present time the consideration deposited is
not in form to be distributed.
Fifth. The amount deposited as costs is inadequate.
Motion denied.
In re LEVY
110 Fed. 744
(District Court, W. D. Pennsylvania. July, 1901)
A majority in number and amount of bankrupt's creditors
signed an acceptance of the offer of composition, whereby it was
agreed to pay 25 cents on the dollar. Subsequently a number
of the creditors who had agreed to accept such composition came
into court, and desired to file a paper, asking leave to withdraw
their acceptance, and that the application for the composition
be dismissed ; stating that when they signed the acceptance they
were not aware of all the facts in the case.
660 COMPOSITIONS
BUFFINGTON, District Judge (orally). These creditors
voluntarily came into court, accepted the proposed composition,
and asked the court to act in the matter, and confirm the com-
position. They procured the court to act, and they are now
estopped from interfering with the further conduct of the case in
the matter of this composition. Had they alleged fraud or mis-
representation in the procuring of their signatures to the accept-
ance, the case would be different. They are presumed to have
had the same knowledge when they signed as they have now. The
application for their withdrawal will be refused, and the court
will proceed to pass upon the merits of the proposed composition.
If it is not for the best interests of the creditors, it can be shown
on the hearing before the referee.
Mccormick v. solinsey
152 Fed. 984, 82 C. C. A. 134
(Circuit Court of Appeals, Fifth Circuit. April 15, 1907)
PER CURIAM. On the case made, the contract by the Cit-
izens' National Bank of Beaumont, under which it advanced the
money to pay the compositon to creditors in the bankruptcy of
E. N. Brown, was illegal, because a part of the consideration
thereof was that the bank's debt against the bankrupt should be
paid in full, notwithstanding the composition.
Solinsky was a party to the illegal contract, and therein
agreed as a part of the inducement that he would return to the
bank the amounts received by him under the composition as one
of the creditors of the bankrupt, Brown. The present suit, be-
ing one to recover from Solinsky the amounts received by him
under the composition, is clearly a suit to recover moneys know-
ingly advanced under an illegal contract.
The judgment of the Circuit Court is therefore affirmed.
.^^>; . r.^.^^r.. V
iP^ ^^'^S!^ ^^ ^^ GRIFFIN
"^ f^-" jJ^ ^^^ ^^^' '^^^
^ mH y (District Court, N. D. Georgia. May 27, 1910)
^P^ NEWMAN, District Judge. The above bankrupt, M. M.
y\ Griffin, has applied to the court for the confirmation of a com-
position, which he has offered to his creditors and which haa
been accepted by a majority in number and amount. Objection
COMPOSITIONS 661
is made to the confirmation of the composition by the Silvey-
Smith Hat Company for the following reason:
"Because said bankrupt obtained the property on credit from
them upon a materially false statement in writing, made to them
for the purpose of obtaining such property on credit ; such state-
ment being made on June 28, 1909, and being, as therein shown,
made 'for the purpose of obtaining credit,' and standing 'good
as to each purchase now and hereafter, unless there should be a
material change, in which case [I or we] will notify them before
making purchases from them. ' Copy of said statement is hereto
attached and made a part hereof, marked ' Exhibit A. ' On such
statement these objectors sold said bankrupt goods from time to
time, and at the time the petition in bankruptcy was filed said
bankrupt was and is indebted to these objectors on account of
such purchases, as shown by statement of account hereto at-
tached and made a part hereof, marked 'Exhibit B,' to which
reference is prayed as often as may be necessary. Said state-
ment was materially false, in that said bankrupt represented
therein one house and lot located in Manchester, Georgia, of the
value of $1,000, as among his assets. Said house and lot was
at the time the property of said bankrupt's wife, and is still her
property. ' '
It appears, from the written statement of the bankrupt made
to the objectors, which is in evidence, that among other assets
shown by the statement, which amounted in all to $3,450, he
claimed to have a house and lot located in Manchester, Ga., where
he was doiug business, of the value of $1,000. He now acknowl-
edges that he did not own this house and lot, but that it belonged
to his wife. That this was a material statement is clear, and that
it was untrue is now equally clear.
§ 14 of the bankrupt act of July 1, 1898 (30 Stat. 550, c. 541
[U. S. Comp. St. 1901, p. 3427]), as amended in 1903 (Act Feb.
5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1909,
p. 1310] ), makes one of the grounds of objection to discharge:
"(3) Obtained property on credit from any person upon a
material false statement, in writing, made to such person for the
purpose of obtaining such property on credit. ' '
§ 12 of the act provides :
"The judge shall confirm the composition if satisfied that
* * * (2) the bankrupt has not been guilty of any of the
acts, or failed to perform any of the duties, which would be a
bar to his discharge."
662 COMPOSITIONS
It may be that to sustain the objection will prevent the
creditors from getting as much as they would if the composition
was accepted, but this cannot be considered in passing upon this
objection. As Judge J. B. McPherson, in the District Court
for the Eastern District of Pennsylvania, in a case very much
like this (In re Godwin, 122 Fed. Ill), said:
* * It is very likely that the creditors may lose by the' defeat of
the proposed composition; but this consideration cannot be al-
lowed to influence the court in deciding whether the bankrupt
has been 'guilty of any of the acts, or failed to perform any of
the duties, which would be a bar to his discharge. ' Bankr. Act
July 1, 1898, c. 541, § 12, cl. *d' (U. S. Comp. St. 1901, p. 3427).
I agree with the learned referee that the testimony establishes
the fact satisfactorily that the bankrupt has committed one of
the offenses specified in § 14, cl. ' b. ' He has * with fraudulent
intent to conceal his true financial condition and in contempla-
tion of bankruptcy destroyed, concealed or failed to keep books
of account or records from which his true condition might be
ascertained. ' This being so, I think the act requires me to refuse
approval of the composition, without regard to the question
whether the creditors would be benefited thereby; and the fact
that only one creditor is actively objecting, while a large ma-
jority is in favor of taking what the bankrupt offers, is of no
importance in the present inquiry."
The objection must be sustained, and the confirmation of the
composition refused.
CHAPTER V
DISCHARGE
In re CHANDLER
138 Fed. 637, 71 C. C. A. 87
(Circuit Court of Appeals, Seventh Circuit. April 11, 1905)
On October 27, 1902, the bankrupt was discharged from his
debts by the court below. On October 23, 1903, a petition was
filed by William H. Rhodes, John Gray, and Edward G. Pauling
to revoke the discharge upon certain grounds therein stated.
The only allegation in the petition with respect to the character
of the petitioners is * ' that they are creditors of Frank R. Chan-
dler, who has heretofore been adjudicated a bankrupt. ' ' To the
petition a demurrer was interposed, and sustained by the Dis-
trict Court, and the petition dismissed. The proceeding here is
to review and revise that ruling of the District Court.
HUMPHREY, District Judge. § 14& of the bankruptcy act
of July 1, 1898, c. 541, 30 Stat. 550, as amended by Act Feb. 5,
1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411],
provides that objections to discharge of bankrupts may be made
by "parties in interest." The averment in the petition that the
objectors are creditors is not such a statement as shows to the
court that the petitioners are "parties in interest," within the
meaning of the law. The petition does not make such a show-
ing that the court can say that the rights of the petitioners were
affected by the discharge. No facts are averred which would
justify the legal conclusion that the petitioners are "parties in
interest." It is not averred that they were creditors at the time
of the bankruptcy. The character of their debt is not shown. It
is not averred that their debt was provable in bankruptcy or was
proved in the proceedings. The debt or debts they represent,
from all that appears from the petition, may have been created
since the discharge, or they may have become purchasers of the
debts which were discharged, without right to attack the dis-
663
664 DISCHARGE
charge. We are of opinion that the petition should have shown
that the petitioners had at the time provable debts against the
bankrupt, which were affected by the discharge of the bankrupt.
Otherwise they are not ' ' parties in interest, ' ' within the meaning
of the statute.
* * •
The decree is aflfirmed.^ y
^J^^U^ ^ . GILPIN V. MERCHANTS' NAT. BANK
y^ -t-^ ^^^ ^^^ g^^ ^^ ^ ^ ^ ^^^
J^ (Circuit Court of Appeals, Third Circuit. November 21, 1908)
GRAY, Circuit Judge. This is a petition by a bankrupt, to
revise for error of law the decree of the United States District
Court for the Eastern District of Pennsylvania, reversing the
referee's report and sustaining one of the creditor-appellee's ex-
ceptions to his application for discharge. The sole exception thus
sustained, was to the effect that the referee had erroneously held
that the "materially false statement" in writing, mentioned in
clause (3) of § 14& of the bankruptcy act (Act July 1, 1898, c.
541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], amended by
Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St.
Supp. 1907, p. 1026]), must, in order to constitute a bar to
. the discharge of the bankrupt, be intentionally or knowingly
untrue. The facts of the case as summarized from the findings
made by the referee, and elsewhere disclosed in the record, are
as follows:
The bankrupt was engaged in the construction of buildings,
at Baltimore, in places near New York City, and Philadelphia.
His main office was in Philadelphia, where his books were kept
by his bookkeeper. The bankrupt was chiefly engaged in the
actual supervision of the building work he had in hand, and paid
little or no attention to his books. He collected money, paid
notes, and in a general way knew the condition and progress
of each of his building contracts. He intrusted the keeping of his
books to his bookkeeper, and in September, 1905, the posting
of his books was some months behind. During that month, the
bankrupt went to the Merchants' National Bank, at Philadel-
1 — As to the right of the trustee
to interpose objections, see In re
Hoekman, 205 Fed. 330.
DISCHARGE 665
phia, (the excepting creditor and appellee) and stated that he
wished to open an account, and would require accommodations
not to exceed $10,000. The bank informed him that they would
like to have a statement, and gave him one of their blank forms,
to be filled out and signed by him. This form the bankrupt took
to his office, and there signed the same in blank, instructing his
bookkeeper to fill it out and send it to the bank. He signed it in
blank before it was filled out, for the reason that he was obliged
to return to Baltimore without delay. He says he instructed
the bookkeeper to make an exact statement for the bank, to which
the bookkeeper replied that he could not, but that he would make
an approximate statement and send it to the bank. The state-
ment was made by the bookkeeper, and upon it was written the
word "approximate," and it was sent by the bookkeeper to the
bank. Opbn this statement, and upon a note which the bankrupt
was to obtain from one Stokes, of Baltimore, as collateral, the
bank extended the accommodation desired. This note was never
obtained for the bank from Stokes. About October 3, 1905, and
after the said statement of September 28th had been filed by the
bank, the note of the bankrupt for $7,500, due 30 days after date,
was discounted. After two renewals and a payment of $1,000
on account, and the further discount of a 10 days' note of $2,500,
the bank, on the 9th day of February, 1906, renewed the entire
amount then due, viz., $9,000, for 30 days, which is still unpaid.
The adjudication of bankruptcy was entered February 26,
1906. The approximate statement sent by the bookkeeper to
the bank was materially inconsistent with the bankrupt's books,
as they stood at the time the bankruptcy occurred. There is
nothing in the referee's report to show how the books actually
stood at the time the statement was prepared by the bookkeeper.
There is no evidence that the bankrupt ever saw this statement
after it was filled out, that the bank ever showed it to him, or
interrogated him in regard to it, or that he ever asked to see it.
This statement showed a net worth of $43,569.27. The bankrupt
himself made up from his books, during the course of his exami-
nation, a statement showing that his net worth at that time was
$45,698.09. This statement, however, in all its items fails to
coincide with the statement made up by the bookeeper and de-
livered to the bank.
The referee finds that, although the falsity of the statement
sent to the bank has been proved, the fact that the bankrupt
666 DISCHARGE
knew it to be false, or did not know it to be true, was not proved,
and says:
* * There is no evidence to support the contention that the bank-
rupt knew or had any reason to believe that the statement sent
to the bank by the bookkeeper was false, or that the bankrupt
intended in any way to deceive the bank."
The referee, therefore, reported that a decree of discharge of
the bankrupt should be entered. To the finding of the referee,
as stated, the appellee filed its exception, and the court below,
after considering the same, reversed the finding of the referee
and directed that an order be entered, sustaining the said objec-
tion to the bankrupt's discharge.
§ 14 of the bankrupt act prescribed the conditions upon which
a discharge may be granted to the bankrupt by the court of
bankruptcy in which the proceedings are depending, and pro-
vides that the court shall hear and investigate the merit of the
application and discharge the bankrupt, unless he has —
" (1) committed an offense punishable by imprisonment, as herein
provided; or (2) with intent to conceal his financial condition,
destroyed, concealed, or failed to keep books of account or rec-
ords from which such condition might be ascertained; or, (3)
obtained property on credit from any person upon a materially
false statement in writing made to such person for the purpose
of obtaining such property on credit; or (4), at any time sub-
sequent to the first day of the four months immediately preced-
ing the filing of the petition transferred, removed, destroyed, or
concealed, or permitted to be removed, destroyed, or concealed
any of his property with intent to hinder, delay, or defraud his
creditors; or (5) in voluntary proceedings been granted a dis-
charge in bankruptcy within six years; or (6), in the course of
the proceedings in bankruptcy refused to obey any lawful order
of or to answer any material question approved by the court."
The single question of law presented for our consideration is
clearly defined in the following extracts from the opinion of the
court below:
"I accept and shall act upon the finding of the referee that
the bankrupt either did not actually know what the statement
contained, or did not know that it was materially false, and that
he did not have a conscious intention to deceive the bank."
In concluding, the court said as follows :
**The other matter that may properly need a moment's con-
sideration is the effect that should be given to the word 'false'
DISCHARGE 667
in clause 3. In my opinion the argument for the bankrupt must
rest wholly upon the conclusion that this word should bear. It
is unquestionably a flexible word. Sometimes it means incorrect,
or not true; sometimes it includes the idea of wickedness or
fraud — as in § 29, where a false oath is evidently a corruptly
false oath, such as would subject the affiant to a prosecution for
perjury. That 'false' means no more in clause 3 than 'not true,'
I have tried to establish in the preceding pages of this opinion,
and if I have failed hitherto to give good reasons to my belief
I am sure that I shall not strengthen the argument by stating
them again in somewhat different words.
"The decision of the referee is reversed and the clerk is di-
rected to enter an order sustaining the first objection of the
Merchants' National Bank to the bankrupt's discharge." v.
Addressing ourselves to the question thus distinctly raised, it
is to be remarked that of the slk reasons for refusing a discharge
to the bankrupt, as set forth in § 14& of the bankrupt act, the
five that relate to the conduct of the bankrupt, unless we exclude
the third, with which we are here concerned, all imply a willful
and fraudulent act on the part of the bankrupt, or, as in the case
of the sixth, a willful and intentional defiance of a lawful order
of the court. And they all imply conduct that is immoral, or at
least unworthy in one seeking the reward of honesty that is in-
tended to be conferred by a discharge. In the recent case. In re
A. B. Carton & Co. (D. C.) 148 Fed. 63, 66, Judge Hough in the
District Court for the Southern District of New York, adopts as
a terse statement of his views, the following language ;
' * The policy of the bankruptcy act is founded on equal rights
and privileges to all creditors ; it is not intended as a means to
punish the bankrupt at the option of the defrauded creditor only.
Dkcharge f rpm debts is a matter of favor and not a matter of
Qght. Honesty on the part of a bankrupt is rewarded by a dis-
charge. Fraud and dishonesty are stamped with disapproval
of a discharge. Contumacy on the witness stand, a previous dis-
charge within six years, obtaining money upon false statements,
and the commission of an offense punishable by imprisonment
under the act, are all valid objections to a discharge, and are not
limited to the defrauded creditors alone, but may be urged by
any and all creditors. It is the fraudulent conduct that is
aimed at, and not retaliation for the individual loss."
"We^fail to perceive any sufficient ground for denying to the
third reason for refusing a discharge to the bankrupt, the gen-
668 DISCHARGE
leral characteristic of personal misconduct that attaches to all
i the others, as set forth in the said section of the bankrupt act. It
would indeed be a harsh construction, and at variance with the
general policy of the bankruptcy act, that would make the con-
duct described in clause 3 an exception in this respect to the
whole category of acts which may severally deprive the bankrupt
of his privilege of discharge. It is a construction which should
not unnecessarily be made.
But apart from the incongruity imported into this section of
the bankruptcy act by such construction, it seems to us clear that
the plain language of this third clause of § 146 requires that the
written statement made by the bankrupt, for the purpose of ob-
taining credit, etc., should be knowingly and intentionally un-
true, in order to constitute a bar to the discharge of the bank-
rupt. In other words, "false statement" connotes a guilty scien-
ter on the part of the bankrupt. This primary and ordinary
meaning of the word "false" cannot be ignored. It is the pri-
mary meaning given in the ordinary lexicons of the English
language. Webster gives as its primary meaning: — "Uttering
falsehood; unveracious; given to deceit; dishonest." As an ad-
jective, it is correlative with the noun "falsehood." To charge
a person with making a false statement, is equivalent to charg-
ing him with uttering a falsehood, and imputes moral delin-
quency to the person so charged. It is true that the word may
have a secondary meaning in certain collocations, and be merely
equivalent to * ' untrue " or " incorrect. ' ' But this is not the or-
dinary or usual signification attached to the word. To charge a
person with making false entries in books of account, means
something more than that incorrect or untrue entries have been
made, and it has been so held by the courts in the consideration
of offenses of that character. The last edition of Bouvier's Law
Dictionary says of the word "false," that when "applied to
the intentional act of a responsible being, it implies a purpose
to deceive. ' ' In Black 's Law Dictionary, under the title ' ' false, ' '
it is said : " In law, this word means something more than un-
true; it means something designedly untrue and deceitful, and
implies an intention to perpetrate some treachery or fraud."
In a recent and well accepted publication called "Words and
Phrases," the word "false" is thus defined: — "False means that
which is not true, coupled with a lying intent." Wood v. The
State, 48 Ga. 192, 297, 15 Am. Rep. 664. "False in juris-
DISCHARGE 669
prudence usually imports something more than the vernacular
sense of 'erroneous' or 'untrue.' "
This and other citations in the petitioner's brief, establish a
jurisprudential meaning to the word "false" at variance with
that adopted by the learned judge of the court below.
No good reason has been suggested why Congress should have
made such an exception to the character of the acts enumerated,
as severally barring the discharge of the bankrupt, by using the
word * * false ' ' in some other than its primary and obvious mean-
ing.
But it is not without significance to inquire why an incorrect
statement, innocently made to one creditor, should bar the dis-
charge of the bankrupt as to all his other debts, whatever be its
effect as to the debt of that particular creditor. In re Carton &
Co., supra, the court says:
"It is the act of issuing a materially false statement and the
fraudulent intent of the man who issues it, that the statute seeks
to punish by refusing a discharge. It should not depend upon
the whim or good nature of any particular creditor to whom the
false statement was made, whether the offending bankrupt should
be given or refused his discharge. Any 'party in interest' who
chooses to bring the wrongful act to the attention of the court,
and proves that it was wrong within the meaning of the stat-
ute, is entitled so to do. " , ;
We fully concur in the meaning thus attributed to the clause
in question. The bankrupt who has made to a creditor, for the
purpose of obtaining credit, a false statement, — that is, one in-
tentionally and knowingly untrue, is unworthy of the privilege of
a discharge under the act, and the court will act upon informa-
tion brought to it of such an act by any party in interest. It
will be at once conceded on all hands, that such a bankrupt is
unworthy, and should not receive the favor accorded by the
law to the honest but unfortunate debtor. Some of the cases
cited by the appellee conflict with the view here stated, .but the
weight of authority, as of reason, supports it.
We think that the court below erred in finding that the word
"false" means no more in clause 3 than "not true," and the
order of the said court is hereby revised in matter of law, by
directing that the first specification of grounds of opposition to
the discharge of the bankrupt, filed by the Merchants' National
Bank, be dismissed, and that the bankrupt receive his discharge
670 DISCHARGE
in accordance with the recommendation of the referee in that
- ,behalf.2 , .X
-V; y^^^ DIMOCK V. REVERE COPPER CO.
^\iy\ \^ 117 u. S. 559, 29 L. ed. 994
^ (United States Supreme Court. April 5, 1886)
■y^ ^j( ^^^is case came here by a writ of error to the Supreme Court
^ *- of New York, having been decided in the Court of Appeals, and
^- y, the record remitted to the Supreme Court that judgment might
W^ be finally entered there.
The action was brought in that court on a judgment in favor
of the Revere Copper Company, plaintiff, against Anthony W.
Dimock, rendered in the Superior Court of the Commonwealth
of Massachusetts, for the county of Suffolk, on the 1st day of
April, 1875.
The defendant, Dimock, pleaded, in bar in this action, a dis-
charge in bankruptcy, by the District Court of the United States
for the District of Massachusetts, rendered on the 26th day of
March, 1875, five days before judgment in the State Court.
The case being submitted to the New York Supreme Court in
special term, without a jury, that court found the following facts
and conclusions of law thereon:
"As Findings of Fact.
"First. That the plaintiff is, and at the times hereinafter men-
tioned was, a corporation, duly organized and existing under and
by virtue of the laws of the Commonwealth of Massachusetts.
"Second. That on or about the 13th day of January, 1874,
the Revere Copper Company of Boston, Massachusetts, the plain-
tiff herein, commenced an action in the Superior Court of the
Commonwealth of Massachusetts, within and for the county of
Suffolk, a court of general jurisdiction, against Anthony W. Di-
mock, the defendant herein, by the issue of a writ of attachment
against the goods, estate, and body of the said defendant, and
which said writ was duly served on said defendant, and the sum-
mons to appear in said action was duly served upon him per-
sonally, and that the said defendant thereafter duly appeared
in said action by attorney ; that the cause of action was an in-
dorsement of said Dimock of two promissory notes made in the
2 — The principal case is annotated
in 20 L. E. A. (N. S.) 1023.
DISCHARGE 671
city of New York to the order of plaintiff by the Atlantic Mail
Steamship Company, and dated December 19, 1872.
' * Third. That on or about June 23, 1874, the said defendant,
Anthony W. Dimock, filed a petition in bankruptcy, and was duly
adjudicated a bankrupt, in the District Court of the United \
States for the District of Massachusetts, and that such proceed- \
ings were thereafter had that, on or about March 26, 1875, the
said Dimock was discharged from all debts and claims provable
against his estate, and which existed on the 23d day of June,
1874.
"Fourth. That such proceedings were had in the aforesaid
action in the Superior Court of the Commonwealth of Massa-
chusetts that on or about April 1st, 1875, the plaintiff duly re-
covered judgment in said action against the defendant for the
sum of three thousand five hundred and ninety-five dollars and
fifteen cents ($3,595.15), and that said judgment was upon that
day duly entered.
"Fifth. That no part of said judgment has been paid, and
the whole thereof is now due and payable to the plaintiff. ' '
"As Conclusions of Law.
"I. That the said proceedings in bankruptcy are no bar to
the present action, and constitute no defense herein.
"II. That the plaintiff should have judigment against the de-
fendant for the sum of three thousand five hundred and ninety-
five dollars and fifteen cents ($3,595.15) with interest from April
1st, 1875, amounting to one thousand one hundred and forty-two
dollars and ninety-six cents ($1,142.96), making in all four thou-
sand seven hundred and thirty-eight dollars and eleven cents
($4,738.11), together with the costs of this action, to be taxed,
and an allowance, in addition to costs, amounting to the sum of
seventy-five dollars."
The judgment rendered on these findings was reversed by the
Supreme Court in general term, and that judgment was in
turn reversed by the Court of Appeals, which restored the judg-
ment of the special term. 90 N. Y. 33.
Mr. Justice MILLER, after stating the facts as above reported,
delivered the opinion of the court.
The only question considered at all these trials was whether\
the discharge of the defendant in the bankruptcy proceeding isj
under the facts found by the court, a bar to the present actionj[^
672 DISCHARGE
and, as the decision by the New York court against the plaintiff
in error as to the effect of that order of discharge is to refuse to
him a right claimed under the laws of the United States, this
court has jurisdiction to review the decision.
The Superior Court of Massachusetts had jurisdiction of the
suit of the Copper Company against Dimock, both as regards the
subject-matter and the parties. This jurisdiction was rendered
complete by service of process and by the appearance of the
defendant. All this was before the beginning of the bankruptcy
proceeding. Nothing was done to oust this jurisdiction, and the
case accordingly proceeded in due order to the rendition of the
judgment which is the foundation of this action. It is not argued
that this judgment was void, or that the court was ousted of its
jurisdiction by anything done in the bankruptcy court. No such
argument could be sustained if it were made. In the case of
Eyster v. Gaff, 91 U. S. 521, which was very similar to this on
the point now before the court, it was said : ' ' The court in that
case had acquired jurisdiction of the parties and of the subject-
matter of the suit. It was competent to administer full justice,
and was proceeding according to the law which governed such
a suit to do so. It could not take judicial notice of the pro-
ceedings in bankruptcy in another court, however seriously they
might affect the rights of parties to the suit already pending. It
was the duty of that court to proceed to a decree between the
parties before it, until by some proper pleadings in the case it
was informed of the changed relations of any of the parties to
the subject-matter of the suit. Having such jurisdiction, and
performing its duty as the case stood in that court, we are at a
loss to see how its decree can be treated as void." The court
then goes on to show, that, if the assignee had brought his right,
acquired pendente lite, to the notice of the court, it would have
been protected. Hill v. Harding, 107 U. S. 631.
So here, if Dimock had brought his discharge to the attention
of the Superior Court at any time before judgment, it would
have been received as a bar to the action, and, under proper
circumstances, even after judgment, it might be made the foun-
dation for setting it aside and admitting the defense. Ray v.
Wight, 119 Mass. 426; Page v. Cole, 123 Mass. 93; Golden v.
Blaskopf, 126 Mass. 523. Nothing of the kind was attempted.
The question before the Massachusetts court for decision, at the
moment it rendered its judgment, was, whether Dimock was then
[indebted to the Copper Company. Of Dimock and of this ques-
DISCHARGE 673
tion it had complete jurisdiction, and it was bound to decide it
on the evidence before it. Its decision was, therefore, conclusive,
as much so as any judgment where the jurisdiction is complete.
It concluded Mr. Dimock from ever denying that he was so in-
debted on that day, wherever that judgment was produced as
evidence of the debt. If he had the means at that time to prove
that the debt had been paid, released, or otherwise satisfied, and
did not show it to the court, he cannot be permitted to do it in
this suit; and the fact that the evidence that he did not then
owe the debt was the discharge in bankruptcy, made five days
before, does not differ from a payment and receipt in full or a
release for a valuable consideration. Cromwell v. Sac County,
94 U. S. 351 ; also, Claflin v. Houseman, 93 U. S. 130, 134. A
still stronger case of the validity of judgments of a State Court,
in their relation to bankruptcy proceedings, had pendente lite, is
that of Davis v. Friedlander, 104 U. S. 570. In the case of
Thatcher v. Rockwell, 105 U. S. 467, 469, the Chief Justice, after
alluding to these and other cases, says, they "establish the doc-
trine that, under the late bankrupt law, the validity of a pend-
ing suit, or of the judgment or decree thereon, was not affected
by the intervening bankruptcy of one of the parties; that the
assignee might or might not be made a party; and whether he
was so or not he was equally bound with any other party acquir-
ing an interest pendente lite."
It is said, however, that, though the defendant had his dis-^
charge before the judgment in the State Court was rendered,
and might have successfully pleaded it in bar of that action
and did not do so, the judgment now sued on is the same debt,
and was one of the debts from which, by the terms of the bank-
rupt law, he was discharged under the order of the bankruptcy
court, and to any attempt to enforce that judgment the discharge
may be shown as a valid defense. That is to say, that the failure
of the defendant to plead it when it was properly pleadable,
when, if he ever intended to rely on it as a defense, he was
bound to set it up, works him no prejudice because, though he
has a dozen judgments rendered against him for this debt after
he has received his discharge, he may at any time set it up as
a defense when these judgments are sought to be enforced.
Upon the same principle, if he had appeared in the State Court
and pleaded his discharge in bar, and it had been overruled as
a sufficient bar, he could, nevertheless in this action on that
judgment, renew the defense.
H. & A. Bankruptcy — 4 3
674
DISCHARGE
^'
But in such case, his remedy would not lie in renewing the
struggle in a new suit on such judgment, but in bringing the
first judgment for review before this court where his right under
the discharge would have been enforced then, as he seeks to do it
now, after submitting to that judgment without resistance and
without complaint.
Ge are of opinion that, having in his hands a good defense
le time judgment was rendered against him, namely, the
, r of discharge, and having failed to present it to a court
; which had jurisdiction of his case and of all the defenses which
/ he might have made, including this, the judgment is a valid judg-
' ment, and that the defense cannot be set up here in an action
\ on that judgment. The case of Steward v. Green, 11 Paige, 535,
sSfems directly in point. So also are HoUister v. Abbott, 11
Foster, 31 N. H. 442, and Bradford v. Rice, 102 Mass. 472.
It is clear that until the judgment of the Massachusetts court
is set aside or annulled by some direct proceeding in that court,
its effect cannot be defeated as a cause of action, when sued in
another state, by pleading the discharge as a bar which might
have been pleaded in the original action.
The judgment of the New York court is affirmed.^
3 — "The execution was issued
after the discharge in bankruptcy,
and appellee filed his motion to
quash on the ground that the judg-
ment was a partnership debt of the
firm of Munder & Stevenson. Tes-
timony was introduced, over the ob-
jection of appellant, tending to
prove that, though the notes upon
which the judgment was rendered
were signed individually, they were
in fact obligations of the firm, and
that the consideration therefor went
to the firm. • • •
"The effect of the discharge in
bankruptcy was to release the mem-
bers of the firm individually and as
partners from all the provable debts
of the firm save those specially ex-
cepted by the terms of the statute,
such as judgments in actions for
fraud or false pretense, etc.
"The discharge is the judgment
of a court of competent jurisdiction
and cannot be collaterally attacked.
Collier on Bankruptcy, p. 785; Black
on Bankruptcy, p. 88; Loveland on
Bankruptcy, p. 785; Fuller v. Pease,
144 Mass. 390; Corey v. Eipley, 57
Me. 69 ; Bailey v. Carruthers, 71 Me.
172; Howland v. Carson, 28 Ohio
St., 625; Milhous v. Aicardi, 51 Ala.
594; Stevens v. Brown, 49 Miss.
597; Brady v. Brady, 71 Ga. 71;
Talbott v. Suit, 68 Md. 443.
"It is contended by counsel for
appellant that the discharge was not
effective to release appellee from
liability individually from the part-
nership debts because he failed to
include his individual assets in the
schedules. If it has been shown to
the bankruptcy court that appellee
owned property not included in the
schedules, that would have been
ground for refusal of the discharge,
or for revocation of the discharge by
that court after it had been granted;
but that question should have been
litigated in the bankruptcy court,
DISCHARGE 675
CITIZENS' LOAN ASS'N v. BOSTON & M. R. R.
196 Mass. 528, 82 N. E. 696
(Supreme Judicial Court of Massachusetts. Nov. 27, 1907)
Plaintiff and defendant are domestic corporations. On Feb-
ruary 27, 1905, and for a long time prior thereto, Steven J.
Wescott was in the employ of defendant as a conductor. On
that day Wescott, for a valuable consideration, and as security
for the payment of a note given by him to plaintiff, and for
money loaned, assigned to plaintiff all claims which he might
thereafter have against defendant for moneys becoming due
between that date and January 1, 1908, for services.
RUGrG, J. The single question presented by this appeal is
whether an assignment of wages to be earned in an existing em-
ployment, given before bankruptcy, without fraud, and upon
sufficient consideration, to secure a valid subsisting debt, and
duly recorded, can be enforced, after the discharge in bank-
ruptcy of the assignor, as to wages earned in the course of the
original employment, by the creditor, who has not proved his
debt in bankruptcy. A debt is not extinguished by a discharge
in bankruptcy. The remedy upon the debt, and the legal, but
not the moral, obligation to pay, is at an end.^ The obligation
itself is not canceled. Champion v. Buckingham, 165 Mass. 76,
42 N. E. 498 ; Heather v. Webb, 2 C. P. D. 1. An assignment
of future earnings, which may accrue under an existing employ-
ment, is a valid contract and creates rights, which may be en-
forced both at law and in equity, whichever may in a par-
ticular case be the appropriate forum. Tripp v. Brownell, 12
and the judgment of that court in provable claim against the estate of
granting the discharge is conclusive the bankrupt and was discharged.
of the right to contest it on that Collier on Bankruptcy, p. 191; Love-
ground, land on Bankruptcy, p. 760; In re
"The discharge operates only Ehutassel, 96 Fed. 597; In re Mus-
upon such debts as were provable, sey, 99 Fed. 71 ; In re Wright, No.
and the question whether or not a 18065, Fed. Cases." Young v.
particular debt has been released by Stevenson, 73 Ark. 480, 482. See
it is left to be determined by the also Custard v. Wigderson, 130 Wis.
court in which action is brought to 412.
enforce the debt. It was proper,
therefore, for the court to enter 4 — Cf. Matthewson t. Needham,
upon an inquiry whether or not the 81 Kans. 340, 26 L. E. A. (N. S.)
debt in controversy was in fact a 274.
676 DISCHARGE
Cush. 376; Weed v. Jewett, 2 Mete. 608, 37 Am. Dec. 115;
Brackett v. Blake, 7 Mete. 335, 41 Am. Dec. 442; Hartey v.
Tapley, 2 Gray, 565 ; Gardner v. Hoeg, 18 Pick. 168 ; Taylor v.
Lynch, 5 Gray, 49 ; Lannan v. Smith, 7 Gray, 150 ; St. Johns v.
Charles, 105 Mass. 262 ; Lazarus v. Swan, 147 Mass. 330, 333, 17
N. E. 665 ; James v. Newton, 142 Mass. 366, 8 N. E. 122, 56
Am. Rep. 692. These cases proceed upon the theory that the
worker under contract for service, though indefinite as to time
and compensation and terminable at will, has an actual and real
interest in wages to be earned in the future by virtue of his con-
tract. He may recover for an unjustifiable interference with
such an employment, as for an injury to any other vested prop-
erty right. Morgan v. Dunphy, 177 Mass. 485, 59 N. E. 125,
52 L. R. A. 115, 83 Am. St. Rep. 289 ; Berry v. Donovan, 188
Mass, 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St.
Rep. 499. It is plain that one may sell wool to be grown upon
his own sheep, or a crop to be produced upon his own land, but
not that to be grown or produced upon the sheep or land of an-
other. No more can one assign wages, where there is no con-
tract for service. Jones v. Richardson, 10 Mete. 481 ; Low v.
Pew, 108 Mass. 347, 11 Am. Rep. 357. But profitable employ-
ment is a reality. Wages to be earned by virtue of an existing
employment are no more shadowy or insubstantial than the fleece
of next spring or the crop of the following autumn. Money to
accrue from such service is not a bare expectancy or mere pos-
sibility, but a substance capable of grasp and delivery. It con-
stitutes a present, existing, right of property, which n\Q,y be sold
or assigned as any other property. Although not in the manual
possession of the assignor, it is in his potential possession. The
transfer of this potential possession creates the assignee a lienor
upon the property right. The holder of such an assignment
stands upon a firmer plane than the mortgagee of future ac-
quired property, who has only the right by contract to act be-
times in the future for his protection. Wasserman v. McDon-
nell, 190 Mass. 326, 76 N. E. 959. The assignee of wages to be
earned under an existing contract gets a present right, perfect
in itself, requiring no future action on his part. Contracts for
personal service are of such a character that their breach is in
appropriate cases enjoined. Lumley v. Wagner, 1 De G., M. &
G. 604 ; Duff V. Russell, 133 N. Y. 678, 31 N. E. 622 ; Whitwood
Chemical Co. v. Hardman [1891] 2 Ch. 416. See Phila. Base
Ball Club V. Lajoie, 202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227,
DISCHARGE 677
90 Am. St. Rep. 627. It may be taken for granted that the right
to future wages to be earned under such a contract does not pass
to the trustee in bankruptcy. Nor are we dealing here with a
contract as to labor in terms or spirit contrary to public policy,
as in Parsons v. Trask, 7 Gray, 473, 66 Am. Dec. 502. But on
the contrary, assignments of wages are recognized as valid by
statute. Rev. Laws, c. 189, §§ 32, 33, 34; Id. c. 102, §§ 51, 57
to 67, both inclusive ; Id. c. 106, § 63. The present case is not
affected by St. 1905, p. 224, c. 308, or St. 1906, p. 366, c. 390.
Specific performance of contracts to labor like that in ques-
tion will not be enforced. Arthur v. Oakes, 63 Fed. 310-318,
11 C. C. A. 209, 25 L. R. A. 414; Robertson v. Baldwin, 165
U. S. 275, 17 Sup. Ct. 326, 41 L. ed. 715. It is only where labor
has been voluntarily performed that the question now presented
can arise. It is possible that an agreement to execute an assign-
ment, falling short of the creation of a lien, is, when the wages
have been actually earned, enforceable in equity, even after a
subsequent bankruptcy or insolvency. We do not decide this,
however. Edwards v. Peterson, 80 Me. 367, 14 Atl. 936, 6 Am.
St. Rep. 207 ; Stott v. Franey, 20 Or. 410, 26 Pac. 271, 23 Am.
St. Rep. 132. At lowest the assignment in question became "a
specific equitable lien on the fund" (Triste v. Child, 21 Wall.
441, 22 L. ed. 623), or was "an independent collateral agree-
ment given by way of guaranty or other security ' ' for the main
debt, and there is no reason why such an agreement should not
outlive the remedy upon the debt, to secure which it was given
(Shaw V. Silloway, 145 Mass. 503, 507, 14 N. E. 783). In either
event, it was not dissolved by the bankruptcy. We have consid-
ered the contrary authorities of In re West (D. C.) 128 Fed. 205,
In re Home Discount Co. (D. C.) 147 Fed. 538, and Leitch v.
Northern Pacific Ry. Co., 95 Minn. 35, 103 N. W. 704, with the
deference to which they are entitled.^ They proceed upon con-
siderations as to the effect of an assiignment of wages and the
rights vesting thereunder in the assignee, as well as public pol-
icy pointed out in the latter case, which are inconsistent with
what we conceive to be sound reasoning, and opposed to the
numerous decisions of this court above cited concerning rights
acquired under assignments of wages. In the absence of a de-
cision to the same effect by the Supreme Court of the United
5— See also In re Ludeke, 171 E. A. (N. S.) 375, 137 Am. St. Rep.
Fed. 292; Levi v. Loevenhart & Co., 377.
138 Ky. 133, 127 S. W. 748, 30 L.
678 DISCHARGE
States, we cannot accede to them as authoritative. Nor do we
perceive anything inconsistent with the conclusion we have
reached, in Clark v. Clark, 17 How. 315, 15 L. ed. 77, East
Lewisburg v. Marsh, 91 Pa. 96, Christian & Craft Grocery Co.
V. Michael & Lyons, 121 Ala. 84-87, 25 South. 571, 77 Am. St.
Rep. 30, Williams v. Chambers, 10 Q. B. 337, and Hanover Nat.
Bank v. Moyses, 186 U. S. 192, 22 Sup. Ct. 857, 46 L. ed. 1113,
which are cited as generally supporting authorities In re Home
Discount Co., uhi supra.
The assignment to the plaintiff is a lien which was preserved
by § 61 d of the bankruptcy act of July 1, 1898 (30 Stat. 564,
e. 541 [U. S. Comp. St. 1901, p. 3450] ), and was not affected by
the discharge in banki'uptcy of the assignor. This conclusion
is supported by MaUin v. Wenham, 209 111. 252, 70 N. E. 564,
65 L. R. A. 602, 101 Am. St. Rep. 233.
Judgment aiBfirmed.^
EVANS V. STAALLE
88 Minn. 253, 92 N. W. 951
(Supreme Court of Minnesota. Jan. 9, 1903)
START, C. J. Action in the District Court of the county of
Murray to enforce a resulting trust in favor of the plaintiff as
a creditor of the defendant's husband, Christ Staalle, hereafter
designated as the "debtor." The facts, in brief, as established
by the verdict of the jury and the findings of the trial judge,
are substantially these: In the year 1892 the debtor was in-
debted to the plaintiff in the aggregate sum of $117.25, and on
November 11, 1897, the plaintiff duly recovered and docketed a
judgment against him therefor in the sum of $224.17, including
interest and costs. On March 19, 1901, execution was duly is-
sued on the judgment, and returned wholly unsatisfied. On
November 28 and December 19, 1900, respectively, land aggre-
gating 160 acres, being the two tracts of 80 acres each described
in the complaint, was conveyed to the defendant by the then
owners thereof. The debtor paid one-third of the consideration
for the conveyance of such tracts of land, and the title was taken
in the name of the defendant as grantee to hinder and defraud
the creditors of the debtor. This action was commenced in
6 — See note to principal ease in
14 L. K. A. (N. S.) 1025.
DISCHARGE 679
April, 1901, and the complaint alleged, with others, the facts
we have stated. The answer of the defendant to the complaint
admitted that the tracts of land described in the complaint were
conveyed to her at the dates stated in the complaint, and denied
the other allegations thereof. On April 6, 1902, the defendant
moved the court for leave to serve an amended and supplemental
answer, setting up the fact that on November 16, 1901, the
debtor, Christ Staalle, was discharged in bankruptcy from all
of his debts existing on January 19, 1901, on which day he filed
his petition for adjudication under the act of congress relating
to bankruptcy. The motion was denied, and the trial proceeded
upon the original pleadings. The trial court, as a conclusion of
law, directed judgment in favor of the plaintiff to the effect that
the defendant holds the title to an undivided one-third of the
two tracts of land here in question in trust for the plaintiff to
the amount of his judgment, which is a lien thereon, and, fur-
ther, that the plaintiff is entitled to a lien on a third tract of
land to the extent of $51.92, as to which it is unnecessary to
state the facts. Judgment was so entered, from which the de-
fendant appealed.
1. The first assignment of error to be considered is that the
complaint does not allege facts constituting a cause of action,
because it does not state that the debtor was ever the owner of
any interest in the land in question, nor that he was ever the
owner of any of the consideration paid therefor, nor any facts
tending to show any intention to defraud any of his creditors,
or that any of them were defrauded. No one of these objections
to the complaint is well taken. The complaint alleges that the
land in question was conveyed to the defendant, and that the
purchase price thereof was paid by the judgment debtor, and
the title thereto taken in the name of the defendant to defraud
creditors. Upon these facts there presumptively arose a trust
in favor of the creditors of the debtor at the time such convey-
ance was made. It was only necessary to allege such facts in
the complaint. Gen. St. 1894, § 4281 ; Rogers v. McCauley, 22
Minn. 384. It was sufficient to allege in the complaint that the
debtor paid the purchase price, without also alleging that he
was the owner thereof. The legal title to the land was vested
in the defendant by the conveyance to her, and no interest or trust
in the land resulted in favor of the debtor by reason of his pay-
ing part of the purchase price or otherwise. Subject to the trust
in favor of then existing creditors, the defendant became, by the
680 DISCHARGE
conveyance, the absolute owner of the land. Gen. St. 1894,
§ 4281. Such being the effect of the conveyance to the defendant,
it would have been absurdly untrue to have alleged in the com-
plaint that the debtor had some interest in the land.
2. The order of the court denying the defendant's motion to file
a supplemental answer pleading the debtor's discharge in bank-
ruptcy is urged as error. The trial court, in the exercise of a
fair discretion, might well have denied the motion on the ground
that it was not made with reasonable promptness. But, this
aside, the order was right on the merits, for the debtor's dis-
charge was immaterial. No title to the land passed to the trus-
tee in bankruptcy. The discharge in bankruptcy did not pay
or extinguish the plaintiff's debt, nor relieve the defendant's
land from the trust with which it was charged by operation of
law for the payment of the debt. The only effect of the dis-
charge was to relieve the debtor from all legal obligations to
pay the debt, leaving all liens or trusts securing the debt unim-
paired. Lowell, Bankr. §§242-244; Smith v. Stanchfield, 84
Minn. 343, 87 N. W. 917. Now, when the land in this case was
conveyed to the defendant upon a consideration paid by the
debtor, a trust in favor of the plaintiff as a creditor attached to
the land to the extent necessary to satisfy his debt, which could
be defeated only by disproving any fraudulent intent. This
trust could be enforced after the debtor's discharge, although
all personal remedies against him to secure payment of the debt
had been thereby extinguished, precisely the same as a mortgagee
may foreclose his lien on the mortgaged premises, and thereby
secure payment of his debt, although an action to recover it
from the mortgagor be barred by the statute of limitations.
Slingerland v. Sherer, 46 Minn. 422, 49 N. W. 237.
« * *
Judgment affirmed.
;„ BROWN & BROWN COAL CO. v. ANTEZAK
164 Mich. 110, 128 N. W. 774
(Supreme Court of Michigan. Dec. 7, 1910)
This action was commenced by attachment in the justices'
court of Detroit, December 30, 1907. On January 2, 1908, the
attached property was released upon the giving of the statutory
bond. On February 8, 1908, judgment was rendered in favor
DISCHARGE 681
of the plaintiff for $405.94 and costs. On March 2, 1908, an
appeal was taken to the Circuit Court for the county of Wayne.
In perfecting the appeal the usual statutory bond was given;
one John Knuth becoming surety thereon. While said appeal
was pending and 13 months after it was taken, the defendant,
on April 7, 1909, filed a voluntary petition in bankruptcy in the
United States District Court. On July 16, 1909, the appeal not
having been prosecuted or determined, plaintiff made a motion
to dismiss. On July 26, 1909, defendant secured an order stay-
ing proceedings in the Wayne Circuit Court until the final de-
termination of the bankruptcy proceedings in the United States
District Court. In the bankruptcy proceeding the judgment
here in question was listed as a liability of the bankrupt, and a
final discharge was by him obtained on September 21, 1909. On
October 4, 1909, defendant filed an amended plea, giving notice
of his discharge, and on December 10, 1909, the case came on
for trial in the Wayne Circuit Court. No defense upon the
merits was interposed by defendant, but it was urged in his be-
half that his discharge in the bankruptcy proceeding operated,
not only to cancel his indebtedness to plaintiff, but likewise re-
leased the surety upon the appeal bond. It was conceded upon
the trial that, unless the discharge of defendant released the
surety, plaintiff was entitled to a judgment for the amount of
the judgment in the justice court, with interest. There being
no question of fact involved, by consent of counsel, the case was
tried by the court without a jury. A verdict was directed for
defendant, upon which judgment was entered. Plaintiff has re-
moved the ease to this court by writ of error.
BROOKE, J. (after stating the facts as above). From the
foregoing statement of facts, it will be seen that the only ques-
tion to be determined is whether or not the discharge which
defendant obtained in the bankruptcy proceedings operates as
a bar to the taking of a judgment against his surety upon the
appeal bond. The obligation of the bond is as follows:
"Whereas, judgment was rendered on the 26th day of February,
A. D. 1908, by Louis Ott, one of the justices of the peace in and
for the county of Wayne, in favor of the above-named Brown
& Brown Coal Company, as plaintiff, and against the above-
bounden Stanislaus Antezak, as defendant, for the sum of
405.94 dollars, damages, and 3.00 dollars, costs of suit, and
whereas the above-bounden Stanislaus Antezak, conceiving him-
682 DISCHARGE
self aggrieved by said judgment, has appealed therefrom to the
Circuit Court for the county of "Wayne: Now, therefore, the
condition of the above obligation is such, that if the above-
bounden Stanislaus Antezak shall prosecute his said appeal with
all due diligence to a decision in the said Circuit Court, and if
a judgment be rendered against him in the said Circuit Court,
shall pay the amount of such judgment, including all the costs,
with interest thereon, and in case the said appeal shall be dis-
continued or dismissed, if the said Stanislaus Antezak shall pay
the amount of said judgment rendered against him in said jus-
tice court, including all costs with interest thereon, then this
obligation to be void, otherwise in force. [Signed] Stanislaus
Antezak. [Seal.] [Signed] John Knuth. [Seal.]"
§ 16, National Bankruptcy Law 1898, provides: "The liabil-
ity of a person, who is a co-debtor with or guarantor or in any
manner, a surety for a bankrupt, shall not be altered by the
discharge of such bankrupt." Act July 1, 1898, c. 541, 30 Stat.
550 (U. S. Comp. St. 1901, p. 3428).
This identical question was considered in the case of Knapp
V. Anderson, 15 N. B. R. 316. The language of the bankrupt
act of 1867 is, in effect, the same as that of the act of 1898
above quoted. Act March 2, 1867, c. 176, § 33, 14 Stat. 533.
The court, after discussing the obligation of an indorser, said:
"So with the surety. He agrees to pay if the event happens
which matures his obligation to pay. He assumes to pay, and
incurs the obligation to do so, which may become absolute. The
design of an undertaking and the effect of it are proper matters
of consideration on the question. The undertaking stays all pro-
ceedings, and the effect is to prevent the creditor from enforcing
his judgment by execution, and in that mode obtaining his debt
out of the property of his debtor. The sureties in the under-
taking prevent him from availing himself of this right and op-
portunity, to which he is entitled by the law of the land and by
his superior diligence. This right can be destroyed in all cases
if the debtor, by appeal, and by subsequent proceedings in bank-
ruptcy before a judgment of affirmance, can release himself and
his sureties as well. It was doubtless to prevent such and kin-
dred results that the law declared the discharge should not re-
lease or affect any person liable for the same debt for or with
the bankrupt, either as partner, contractor, indorser, surety, or
otherwise. It is a personal relief given to the applicant, or
forced upon him, and not to those equally bound with him to
DISCHARGE 683
answer his creditor. * * * A surety is rarely primarily lia-
ble. His obligation usually depends upon a contingency, which
is either an event to occur, or the failure of the principal to pay
or to do the act required. ' '
In Holyoke v. Adams, 10 N. B. R. 270, it was held that a dis-
charge in bankruptcy did not release the sureties upon a bond
given in attachment proceedings, commenced more than four
months before the bankruptcy proceedings were launched.
The case of In re Wm. Albrecht, 17 N. B. R. 287, Fed. Cas.
No. 145, arose in Michigan, and the opinion was written by
Judge Brown, later Justice of the United States Supreme Court.
In that case, the authorities are reviewed, and the conflict be-
tween them is noted. The court concludes: "I deem it incon-
sistent with the general purpose of the act to hold that the lien
of the creditor, lawfully acquired by his diligence, shall be lost
by the debtor giving a bond to satisfy the judgment, an action
entirely beyond the control of the creditor, and one which was
designed to secure, not to defeat, the ultimate payment of the
debt. * * * But under the construction given by the Mas-
sachusetts courts, the preference of the attaching creditor is lost,
if the debtor is sufficiently responsible to obtain a bond, while
it is preserved, if his situation is so desperate as to make the
release of the property impossible."
In Hill V. Harding, 107 U. S. 631, 2 Sup. Ct. 404, 27 L. ed.
493, Mr. Justice Gray, speaking for the court, said : ' ' The stay
does not operate as a bar to the action, but only as a suspension
of proceedings until the question of the bankrupt's discharge
shall have been determined in the United States Court sitting
in bankruptcy. After the determination of that question in that
court, the court in which the suit is pending may proceed to
such judgment as the circumstances of the case may require.
If the discharge is refused, the plaintiff, upon establishing his
claim, may obtain a general judgment If the discharge is
granted, the court in which the suit is pending may then deter-
mine whether the plaintiff is entitled to a special judgment for
the purpose of enforcing an attachment made more than four
months before the commencement of the proceedings in bank-
ruptcy, or for the purpose of charging sureties upon a bond
given to dissolve such an attachment." This case was again
before the United States Supreme Court (130 U. S. 699, 9 Sup.
Ct. 725, 32 L. ed. 1083), where it said: "If the bond was
executed before the commencement of proceedings in bank-
684 DISCHARGE
ruptcy, the discharge of the bankrupt protects him from liability
to the obligees, so that, in an action on the bond against him and
his sureties, any judgment recovered by the plaintiffs must be
accompanied with a perpetual stay of execution against him;
but his discharge does not prevent that judgment from being
rendered generally against them" — citing Wolf v. Stix, 99 U, S.
1, 25 L. ed. 309.
A very well considered case involving the question in dispute
will be found in Fisse v. Einstein, 5 Mo. App. 78. After dis-
cussing the Massachusetts decisions and those of some other
states to the contrary, the court says : "To hold that the surety
in this appeal is to be released because there can be no formal
entry of judgment against his principal in the Appellate Court,
though there is a solemn admission in that court of the perfect
correctness and justice of the judgment from which this appeal
is taken, is to denaturalize the transaction, and to give an inter-
pretation to the appeal bond quite foreign to its scope and mean-
ing. It is to say that the surety, whilst engaging to pay the
judgment appealed from if the judgment debtor becomes in-
solvent, is to be released merely because the judgment debtor
becomes insolvent. * * * The insolvency of the principal is
the very contingency against which the appeal bond was in-
tended to provide." See, also, Farrell v. Finch, 40 Ohio St.
337 ; Cyc. vol. 5, p. 401, and cases cited.
We do not overlook the fact that several states, notably Mas-
sachusetts (see Carpenter v. Turrell, 100 Mass. 452, and Hamil-
ton V. Bryant, 114 Mass. 543), have given a different construc-
tion to the statute. This is, however, a federal statute, and we
are of opinion that the construction it has received in the fed-
eral courts should control, if that construction is not inconsistent
with our own decisions and is, as we believe it to be, in accord-
ance with the principles of justice.
It is urged that no federal question is involved. While in one
sense that may be true, yet, under the record as it stands, the
only obstacle to the recovery of a judgment by the plaintiff
against both principal and surety is the fact that a federal law
says that under a certain contingency (which has arisen) the
principal is relieved from the debt. That same law, in terms,
and as construed by the federal courts, says that the release of
the principal shall not operate to discharge his surety. Nor is
this construction one which is unduly harsh as to the surety. In
signing the obligation, he may be presumed to have had in mind
DISCHARGE 685
the contingency that his principal might become bankrupt, thus
making the surety's liability upon the bond certain.
We have not heretofore discussed the conditions of the bond
itself. The first condition is: "That if the above-bounden
Stanislaus Antezak shall prosecute his said appeal with aU due
diligence to a decision in the said Circuit Court," etc. Now,
did the principal comply with this condition of his bond? In-
stead of prosecuting his appeal, he voluntarily sought relief
through bankruptcy in the Federal Court, and interposed that
proceeding first for the purpose of securing a stay of proceed-
ings, and finally as an absolute bar to a recovery These acts
are clearly inconsistent with his obligation as expressed in the
bond. Whether or not they constitute such a breach thereof as
would render the surety liable we do not decide, for, in our
view of the decisions, the liability of the surety would remain
the same even though the bankruptcy were involuntary.
Our attention is called to the case of Bryant v. Kinyon, 127
Mich. 152, 86 N. W. 531, 53 L. R. A. 801. We there held that
a discharge in bankruptcy released the surety upon a capias
bond. The condition of that bond is that the principal "shall
pay the costs and condemnation of the court or render himself
into the custody of the sheriff," etc.
The right of the surety to surrender his principal extends
eight days from the commencement of suit on the recognizance,
after the timely and regular issue and return "not found" of
a body execution. If the debt for which the original suit was
brought is extinguished by the bankruptcy proceeding, no body
execution can ever issue, and the contingency which fixes the
liability of the surety can never arise. The case at bar does not
present this difficulty. Here, as stated by the United States
Supreme Court, a judgment may issue against the principal ac-
companied by a perpetual stay of execution, and the surety may
be compelled to answer according to the terms of his obligation.
The judgment is reversed, and a new trial ordered.'^
7 — On motion to amend judgment will be entered for the plaintiff in
the court amended the opinion to the amount of the judgment in the
read as follows: "The judgment is justice's court, with interest." 164
reversed, and the case is remanded Mich. 116, 130 N". W. 305.
to the circuit court, where judgment
686 /^ / DISCHARGE
V v/^ ,/^ BLUTHENTHAL v. JONES
r JlA^ 208 U. S. 64, 52 L. ed. 390, 28 Sup. Ct. 192
i^ (United States Supreme Court. January 6, 1908)
Mr. Justice MOODY delivered the opinion of the court:
This is a writ of error to the Supreme Court of the state of
Florida. The plaintiffs in error were judgment creditors of
Miles C. Jones, the intestate of the defendant in error. The
•creditors^sought to enforce the judgment by a levy of execution.
The question in the case is whether Jones was discharged Irom
the debt by a discharge in bankruptcy granted to him on Novem-
ber 7, 1903, by the District Court for the southern district of
Florida, on proceedings which were begun on August 3, 1903.
The debt was one provable in the bankruptcy proceeding, and,
it is conceded, would be barred by the discharge, were it not
that there had been a prior proceeding in bankruptcy in another
district court, which, it is contended, had the effect of exempting
the debt from the operation of the discharge. In the year 1900,
Jones filed his petition in bankruptcy in the District Court for
the southern district of Georgia. Bluthenthal & Bickart, the
plaintiffs in error, objected to the discharge in that proceeding,
and it was refused on December 3, 1900. Bluthenthal & Bickart,
at the time of the first proceeding, were creditors of Jones in
I respect of what may be assumed, for the purposes of this case,
/to be the same indebtedness now in question. The ground of the
I refusal does not appear. It may be assumed to have been, how-
^ ever, one of the two grounds specified in § 14 of the bankruptcy
act [30 Stat, at L. 550, c. 541, U. S. Comp. Stat. 1901, p.
3427] before it was amended by the act of February 5, 1903
[32 Stat, at L. 797, c. 487, U. S. Comp. Stat. Supp. 1907,
p. 1026] ; that is to say, either that the bankrupt has committed
an offense punishable by imprisonment, or, with fraudulent in-
tent and in contemplation of bankruptcy, destroyed, concealed,
)or failed to keep books of accounts. Though Bluthenthal &
I Bickart were notified of the proceedings on tTie' second petition
fqr bankruptcy and their debt was scheduled, they did not prove
their claim or participate in any w^y in those proceedings. They
now claim that their debt was not affected by the discharge on
account of the adjudication in the previous proceedings.
§ 1 of the bankruptcy act defines a discharge as "the release
of a bankrupt from all of his debts which are provable in bank-
DISCHARGE 687
ruptcy, except such as are excepted by. this act. " § 14 of the
amended act, which was applicable to the second proceedings,
provides that after due hearing the court shall discharge the
bankrupt, unless he has committed one of the six acts specified
in that section. § 17 of the amended act provides that a dis-
charge in bankruptcy shall release a bankrupt from all of his
provable debts, with four specified exceptions, which do not
cover this case. The discharge appears to have been regularly
granted, and, as the debt due to Bluthenthal & Bickert is not
one of the debts which, by the terms of the statute, are excepted
from its operation, on the face of the statute the bankrupt was
discharged from the debt due to them. There is no reason shown
in this record why the discharge did not have the effect which
it purported to have. Undoubtedly, as in all other judicial pro-
'ceedings, an adjudication refusing a discharge in bankruptcy,
"finally determines, for all time and in all courts, as between
tEbse parties or privies to it, the facts upon which the refusal
was based. But courts are not bound to search the records of
other courts and give effect to their judgments. If there has
been a conclusive adjudication of a subject in some other court,
it is the duty of him who relies upon it to plead it or in some
manner bring it to the attention of the court in which it is
sought to be enforced. Plaintiffs in error failed to do this.
When an application was made by the bankrupt in the District
Court for the southern district of Florida, the judge of that
court was, by the terms of the statute, bound to grant it, unless
upon investigation it appeared that the bankrupt had committed
one of the six offenses which are specified in § 14 of the bank-
ruptcy act as amended. An objecting creditor might have
proved upon that application that the bankrupt had committed
one of the acts which barred his discharge, either by the produc-
tion of evidence or by showing that in a previous bankruptcy
proceeding it had been conclusively adjudicated, as between him
and the bankrupt, that the bankrupt had committed one of such
offenses. If that adjudication had been proved, it would have
taken the place of other evidence and have been final ui>on the
parties to it. But nothing of this kind took place. Bluthenthal]
& Bickart intentionally remained away from the court and/
allowed the discharge to be granted without objection. -^
Since the debt due to the plaintiffs in error was a debt prov-
able in the proceedings before the District Court of Florida,
and was not one of the debts exempted by the statute from the
688 DISCHARGE
operation of the discharge, it was barred by that discharge. The
Supreme Court of the State of Florida so held, and its judg-
ment must be affirmed.
HARGADINE-McKITTRICK DRY GOODS CO. v. HUDSON
122 Fed. 232, 58 C. C. A. 596
(Circuit Court of Appeals, Eighth Circuit. March 23, 1903)
On the 31st day of December, 1901, the Hargadine-McKit-
trick Dry Goods Company, plaintiff in error, brought this action
at law [in the Circuit Court of the United States for the eastern
district of Missouri] against John Robert Hudson, the defendant
in error, founded on the record of a judgment recovered by the
plaintiff against the defendant in the District Court of Burnett
county, Tex., on the 10th day of April, 1891, for the sum of $10,-
939.92. The defendant answered, admitting the recovery of the
judgment, and setting up these defenses: (1) That, being a resi-
dent and citizen of the state of Colorado, he was on the 29th day
of January, 1900, duly adjudged a bankrupt by the United States
District Court for the District of Colorado, and that on the 17th
day of April, 1900, he was duly discharged as a bankrupt by
the order of that court from the payment of all debts provable
against his estate on the 26th day of January, 1900; (2) that
the plaintiff, prior to the 11th day of August, 1900, appeared
before the referee in bankruptcy having charge of the defend-
ant's estate in bankruptcy, and filed for allowance against the
defendant's estate a claim founded on the identical judgment
sued on in this action, which claim was, upon due hearing and
consideration, disallowed by the referee, and that the plaintiff
filed a petition for a review of the order and judgment of the
referee by the United States District Court for the District of
Colorado, whereupon the referee, on the petition of the plaintiff,
duly certified the claim and his ruling thereon to the District
Court for review, and upon full hearing and consideration that
court, on the 25th day of February, 1901, confirmed the ruling
of the referee and entered judgment disallowing the plaintiff's
claim based on the judgment. The plaintiff's replication ad-
mits that it filed for allowance against the estate of the bank-
rupt its claim, based on the judgment in suit, and that the same
was disallowed by the referee, and upon review was also disal-
lowed by the District Court; but it alleges the ruling of the
DISCHARGE 689
referee in the cause, and the judgment of the District Court
affirming the referee's ruling, proceeded upon the ground that
the plaintiff's cause of action on the judgment was barred by
the statute of limitations of the state of Colorado, and avers that
it was not barred by the statute of limitations of the state of
Texas, wherein the judgment was rendered, or of the state of
Missouri. The replication further set up that the debt which
was the foundation of the judgment sued on was created by
fraud. On motion of the defendant the portions of the replica-
tion which we have epitomized were stricken out; the "motion
to strike" seemingly performing the office of a demurrer. By
agreement of the parties a jury was waived, and the cause tried
before the court, which made a general finding in favor of the
defendant and rendered judgment (C. C. ; 111 Fed. 361), ac-
cordingly, and the plaintiff sued out this writ of error.
CALDWELL, Circuit Judge, after stating the case as above,
delivered the opinion of the court.
The plaintiff having voluntarily gone into the bankrupt court,
and submitted itself to the jurisdiction of that court, and filed
its claim against the bankrupt's estate founded on the judgment
here in suit, and that court having disallowed the claim and en-
tered judgment accordingly, and that judgment remaining in
full force and virtue, constitutes a complete bar to this action.
It is not material upon what ground that court rested its judg-
ment. It unquestionably had jurisdiction of the parties and the
subject-matter, and, if either party conceived its judgment was
for any reason erroneous, the remedy was by appeal, and not by
a suit on the same cause of action in another jurisdiction against
the bankrupt.
But if, as is claimed by the plaintiff in error, the United
States District Court for the District of Colorado disallowed the
claim upon the ground that it was barred by the statute of lim-
itations of that state, that court committed no error in so doing.
The bankrupt was a resident and citizen of the state of Colorado.
If he had been sued on the record of the judgment here in suit
before he was adjudged a bankrupt, either in the state or United
States Court in Colorado, he could have successfully interposed
the statute of limitations of that state as a defense to the action.
And when he was adjudged a bankrupt, and the plaintiff filed
its claim before the referee, it was open to that officer in like
manner to interpose the statute of limitations of the state of
H. & A. Bankruptcy — 44
690 DISCHARGE
Colorado as a defense to the claim. There is no support in rea-
son or authority for the contention that no debt barred by the
statute of limitations of the state where the bankruptcy proceed-
ing is pending is provable in bankruptcy, or discharged by a
discharge in bankruptcy, if by the laws of any other state the
debt would not be barred. For the purposes of the administra-
tion and settlement of the bankrupt's estate, and determining
its liabilities, the statute of limitations of the state where the
bankrupt proceedings are pending is applicable, and is the stat-
ute of limitations by which the rights of creditors must be de-
termined.
It comes to this: Can the trustee in bankruptcy plead the
statute of limitations to a claim against the bankrupt's estate
that was barred by the law of the state of the bankrupt's resi-
dence before he was adjudged a bankrupt? It is clear the trus-
tee cannot plead the statute of limitations of any other state,
and, if he cannot plead the statute of the state in which the
debtor resided and was adjudged a bankrupt, then there is no
bar to claims against a bankrupt's estate. The statute of lim-
itations of the state of the bankrupt's residence, and in which
he was adjudged a bankrupt, like the exemption laws of the
state, governs and determines the rights of creditors in the ad-
ministration of the bankrupt's estate. So far forth as relates to
the statute of limitations, the rights of a creditor of the bank-
rupt are not in any manner changed or abridged by allowing
the trustee in bankruptcy to plead in bar of the creditor's claim
the very same statute of limitations that the bankrupt himself
could have successfully pleaded, if an action on the claim had
been brought against him before he was adjudged a bankrupt.
The judgment of the District Court against the plaintiff on
the plea of the statute of limitations is as effectual for all pur-
poses as if it had been rendered on a plea of payment. The
plaintiff's claim was barred before the adjudication in bank-
ruptcy, and we have no occasion, therefore, to inquire whether
the statute would continue to run after the adjudication and
the appointment of the trustee. Richmond v. Irons, 121 U. S.
27, 7 Sup. Ct. 788, 30 L. ed. 864; McDonald v. State of Nebraska,
41 C. C. A. 278, 101 Fed. 171.
But it is contended that the debts of the bankrupt, barred by
the statute of limitations of the state in which he was adjudged
a bankrupt, are not provable debts, and are not, therefore, af-
fected by the bankrupt's discharge. This is rather a startling
DISCHAEGE 691
proposition. We are not surprised that no authorities are cited
to support it. If this were the law, it would result in this
curious anomaly: that, while all recent and live dehts of the
bankrupt would be discharged, no outlawed debts would be dis-
charged, because they could not have been successfully proved
if the trustee had chosen to plead the statute of limitations.
This would be giving to stale and outlawed claims a preference
over live debts, and would leave the creditors free to sue and
recover on these outlawed claims in any jurisdiction where the
bankrupt could not for any reason successfully plead the statute
of limitations, which is precisely what the plaintiff is seeking to
do in this case.
Debts are not the less provable, within the meaning of the
bankrupt act, because the statute of limitations may be success-
fully pleaded against their allowance. As weU say that a debt
was not suable because the statute of limitations might be
pleaded to an action upon it. The plaintiff's judgment was a
provable debt, and the fact that a recovery upon it might be
defeated by the plea of payment, or a plea of the statute of
limitations, or any other plea in bar, did not take it out of the
class of provable debts. The term "provable debts" does not
mean only such debts as are valid, and against the allowance of
which no defense can be successfully interposed.
A discharge in bankruptcy, that discharges the debts of the
bankrupt in one state, discharges them in all the states. The
Constitution of the United States empowers Congress to estab-
lish "uniform laws on the subject of bankruptcies throughout
the United States." The very purpose of a national bankrupt
act is to give force and effect to the proceedings in bankruptcy,
including the bankrupt's discharge, "throughout the United
States. ' ' Its efficacy is not dependent on the varying statute of
limitations of the several states.
The allegation in the replication that the debt which was the
foundation of the judgment sued on was created by fraud is
unavailing. Whether, after suing and recovering judgment on
its promissory notes, and afterwards suing the bankrupt's estate
in the bankrupt court on the record of that judgment, and after-
wards bringing this action on the same record, it is now open to
the plaintiff to say the original debt was created by fraud, we
do not stop to consider. The provision of the present bankrupt
law applicable to the point now under consideration is as fol-
lows:
692 DISCHARGE
' ' § 17a. A discharge in bankruptcy shall release a bankrupt
from all of his provable debts except * * * (2) judgments
in actions for frauds. * * *"
By this provision it is only "judgments in actions for frauds"
that are excepted from the operation of a discharge. The judg-
ment here sued on was rendered on promissory notes, and no
suggestion of fraud was ever made or heard of until the filing
of the replication in this case, more than 11 years after the giv-
ing of the notes, and more than 10 years after the rendition
of the judgment thereon.
Decisions construing the bankrupt act of 1867 (Act March 2,
1867, c. 176 ; 14 Stat. 517) have no application to the present
act on this subject. The language of that act was: "No debt
created by fraud. * * * " This act left the question of
fraud in the creation of the debt open to inquiry after the bank-
rupt obtained his discharge, and proved to be a fruitful source
of bitter and protracted litigation. In the light of that experi-
ence Congress has limited the exception to "judgments in ac-
tions for frauds." This language leaves no room for construc-
tion. It is as plain as the English language can make it.
The judgment of the Circuit Court is affirmed.
SANTA ROSA BANK v. WHITE et al.
139 Cal. 703, 73 Pac. 577
(Supreme Court of California. Aug. 4, 1903)
SMITH, C. This is a suit on a promissory note of the appel-
lant and the other defendants for the sum of $3,675.53, with
interest, etc. The plaintiff had judgment, from which, and from
an order denying the appellant defendant's motion for a new
trial, the appeal is taken.
The defense is a discharge of the defendant in bankruptcy,
under the act of July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp.
St. 1901, p. 3418]. The effect of this was to "release" the de-
fendant "from all of his provable debts," with the exceptions
named in § 17 of the act, c. 541, 30 Stat. 550, [U. S. Comp. St.
1901, p. 3428 J, which, so far as material, reads as follows: "A dis-
charge in bankruptcy shall release a bankrupt from all of his
provable debts, except such as * * * have not been duly
scheduled in time for proof and allowance, with the name of
the creditor, if known to the bankrupt, unless such creditor had
DISCHARGE 693
notice or actual knowledge of the proceedings in bankruptcy."
It was held by the court, in effect, that the debt sued on comes
within the exception stated. The contrary is claimed by the ap-
pellant, for the reason, among others, that it appears from the
evidence that the plaintiff's debt was not known to him when he
prepared his schedules, or until after his discharge, which was
more than a year after the adjudication of bankruptcy. The
only evidence on this point is the defendant's own testimony.
But his explanation of the matter is not unreasonable, and, as
there is no finding on the point, it must be assumed that the
court regarded the question as immaterial ; which, indeed, is the
ground now taken by respondent's counsel. It will be assumed,
therefore, that the fact is as stated by appellant in his testi-
mony. The question involved is therefore purely one of con-
struction, and may be thus stated: Does the exception cited
include all debts not scheduled, whether known or unknown to
the bankrupt, or only such as were known to him ? The question
is not without difficulty, but the grammatical structure of the
provision seems to require the former construction, and we see
nothing in the terms of the provision or in the other provisions
of the act, whether considered in themselves or in connection with
the former law, to indicate a different intention, Sutherland on
Stat. Cons. § 267 ; Broom 's Leg. Max. 652. Under the former
law, the omission of a debt from the schedule, whether intention-
ally or otherwise, did not affect the validity of the discharge
(Rev. St. § 5119) ; and the effect of the new provision is simply
to establish a different rule. In the only cases involving this pro-
vision we have been able to find, the question now presented was
not involved, nor do they seem to throw any light upon it. Tyr-
rel V. Hammerstein (Sup.) 67 N. Y. Supp. 717; Collins v. Mc-
Walters (Sup.) 72 N. Y. Supp. 203; In re Rhutassel (D. C.)
96 Fed. 597.
The other contentions of the appellant are more obviously un-
tenable. They are: (1) That the provision in question is to be
construed as requiring only constructive notice to the creditor
to exclude him from the exception; (2) that the evidence did not
justify the finding that plaintiff did not have actual notice; (3)
that the plaintiff was at liberty to present his claim for proof
and allowance when he discovered the pendency of the bank-
ruptcy proceedings, which was more than a year after the ad-
judication of bankruptcy; and (4) that the plaintiff's claim as
to the effect of the defendant's discharge constituted a collateral
694 DISCHARGE
attack on the decree, which was inadmissible. But as to the first
contention, we think it clear that in the expression "notice or
actual knowledge" the latter term is used as explanatory of the
former, and that actual knowledge is required in order to exclude
the creditor from the exception (Collins v. Mc Walters [Sup.]
72 N. Y. Supp. 205) ; and as to the second, the evidence, we
think, was sufficient to justify the findings. The third contention
is disposed of by the express provisions of § 57, subd. 2, of the
act of July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901,
p. 3443], and the fourth by those of § 17, which expressly except
the debts specified from the effect of the decree. In the corre-
sponding provision of the Revised Statutes (§5119) there was a
similar provision as to the effect of the discharge, with excep-
tions stated, and it was held that as to the plea of discharge the
exception might be shown in a collateral action (Forsyth v. Veh-
meyer, 177 U. S. 177, 20 Sup. Ct. 623, 44 L. ed. 723) ; and the
same has been held with reference to the existing act (Gee v.
Gee, 84 Minn. 384, 87 N. W. 1116, In re Rhutassel [D. C] 96
Fed. 597). The numerous cases cited by appellant's counsel re-
fer to other provisions of the former act and to other questions.
We advise that the judgment and order appealed from be
affirmed.
We concur: GRAY, C; CHIPMAN, C.
PER CURIAM. For the reasons given in the foregoing opin-
ion, the judgment and order appealed from are affirmed.^
THOMPSON V. JUDY
169 Fed. 553, 95 C. C. A. 51
(Circuit Court of Appeals, Sixth Circuit. April 19, 1909)
SEVERENS, Circuit Judge. On March 30, 1907, J. D. Mc-
Clintock obtained a judgment in the Circuit Court of Bourbon
county, Ky., against Wyatt A. Thompson for $1,500, damages for
a false and malicious libel published in a newspaper by the de-
fendant and others in April, 1906. On June 24, 1907, Thompson
filed his voluntary petition in bankruptcy in the United States
District Court for the Eastern District of Kentucky, and listed
the said claim of J. D. McClintock as one of his liabilities. Mc-
8 — See Birkett t. Columbia Bank,
195 U. S. 345.
DISCHARGE 695
Clintock afterwards proved his claim in the ease. On October 8,
1907, Thompson received his discharge in bankruptcy. On Oc-
tober 14, 1907, a writ of capias ad satis fadiendwm was issued from
the Bourbon Circuit Court, and was executed on October 22,
1907, by the arrest of said Thompson, who was delivered into
the custody of George W. Judy, jailer of Bourbon county. On
October 23, 1907, Thompson filed his petition in the United
States Circuit Court for the Eastern District of Kentucky for
a writ of habeas corpus on the ground that the indebtedness
upon which the capias was issued, namely, the judgment for
damages for libel, had been discharged in bankruptcy. The writ
was issued against Judy, the jailer of Bourbon county, and the
petitioner was admitted to bail. Thereafter Judy filed his re-
sponse, setting forth the proceedings in the Circuit Court of
Bourbon county, and on final hearing Judge Cochran, who was
presiding in the court below, held that the judgment in question
was not discharged by proceedings in bankruptcy, and ordered
that the petition for habeas corpus be dismissed and the peti-
tioner be remanded to the state custody. From that order this
appeal is taken.
The sole question in the case is whether the proceedings in
bankruptcy operated to discharge the liability of the petitioner,
which was the foundation of the judgment of the Bourbon Cir-
cuit Court, and the solution of it depends upon the construction
of § 17 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat.
550 [U. S. Comp. St. 1901, p. 3428] ), which is as follows:
* * § 17. A discharge in bankruptcy shall release a bankrupt
from all of his provable debts, except such as ( 1 ) are due as a tax
levied by the United States, the state, county, district, or mu-
nicipality in which he resides; (2) are liabilities for obtaining
property by false pretenses or false representations, or for will-
ful and malicious injuries to the person or property of another ;
(or for alimony due or to become due, or for maintenance or
support of wife or child, or for seduction of an unmarried fe-
male, or for criminal conversation) ; (3) have not been duly
scheduled in time for proof and allowance, with the name of the
creditor if known to the bankrupt, unless such creditor had notice
or actual knowledge of the proceedings in bankruptcy; or (4)
were created by his fraud, embezzlement, misappropriation, or
defalcation while acting as an officer or in any fiduciary ca-
pacity."
The foregoing is § 17 of the act as amended by Act Feb. 5,
696 DISCHARGE
1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1907, p.
1026). That part of clause 2 which excepts from the operation
of the discharge "liabilities" for wiUful and malicious injuries
to the person or property of another is the provision here in-
volved. That clause in the original act was the same, except
that instead of the word ''liabilities" the word "judgments"
was employed. And the matter in dispute is, What was the con-
sequence of the amendment which substituted "liabilities" for
"judgments"?
Before the amendment, a liability for such a cause was not
excepted unless it had been reduced to judgment. By the
amendment it is excepted without being reduced to judgment.
The contention of the appellant is that when a judgment has
been obtained the liability is merged therein, and the claim no
longer adheres to the liability, but is transmuted into another
species of right, which was excepted by the original act, but,
since the amendment, is no longer excepted. But notwithstand-
ing the iuigenuity of the argument by which this contention is
sought to be niaintained, we are of opinion that the intention of
Congress was to declare that such liability should be excepted
whether a judgment had been rendered upon it or not. The
general doctrine of merger of the cause of action by judgment
cannot, of course, be disputed. No suit or proceeding can there-
after be brought upon the original liability, but only for the en-
forcement of the judgment. The power of the court cannot be
again invoked to adjudicate the question of liability. It is for
the interest of the public that litigation shall come to an end,
and the inconvenience of preserving the original liability as a
continuing cause of action would be great. The pursuit must
proceed along the line adopted, and the satisfaction of the claim
must be sought through the judgment. But this rule of law
prevails only to the extent that the reason for it exists. It does
not prevent the recognition in the judgment of the attributes of
the original cause of action. For the purposes of relief, the judg-
ment embodies those attributes and gives ground for their en-
forcement. The rights of the parties are established, and are in
no wise diminished thereby. So, when the judgment is general
in form, it is often necessary to go behind it and see upon what
liability it is founded, to the end that the characteristics of the
cause of action may be impressed upon it. Such instances will
recur to the mind of every lawyer. Indeed, Congress required
this in this identical act when it excepted judgments for the par-
DISCHARGE 697
ticular causes of action mentioned in clause 2 of § 17. Now, we
cannot resist the impression that Congress in making this amend-
ment was looking to the substantial nature of the liability, and
regarded the question as to whether a judgment had been ren-
dered upon it as immaterial, that its intrinsic nature had not
been altered and was in reality the cause of action intended by
the original exception, and that Congress meant to protect that
from the discharge. Apparently the requirement in the original
act that the claim should have been reduced to judgment was
intended to obviate the delay which a proceeding in the bank-
ruptcy court for the liquidation of the damages would involve.
And, finally, it would seem that in plain English a judgment on
such a cause of action is a "liability" therefor.
But the appellant raises another question, which is whether a
willful and malicious libel is an injury ' ' to the person or prop-
erty of another," and argues that by this language is meant a
physical injury to his person, and not merely an injury to a
right which the law attaches to the person. The question is
therefore one of construction. It is true that in modem par-
lance the words "personal injury" are often used to designate
a physical injury to the party. But usually, when there is any
attempt to put the matter into legal phraseology, these and
equivalent words are understood to import the meaning in
which they have long been used by recognized authorities,
whether in legal text-books and commentaries or precise defini-
tion by courts, in classifying the rights of individuals. In 1
Blackstone's Com. 129 et seq., the author classifies and dis-
tinguishes those rights which are annexed to the person, jura
personarum, and acquired rights in external objects, jura rerum;
and in the former he includes personal security, which consists
"in a person's legal and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his reputation." And he
makes the corresponding classification of remedies. The idea
expressed is that a man's reputation is a part of himself, as his
body and his limbs are, and that detraction of it is an injury to
his personality, and Chancellor Kent in liis twenty-fourth lecture
shows that the same classification of rights was expressed in our
colonial legislation and has always been observed, and on p. * 16
of the second volume of his Commentaries, he says :
" As a part of the rights of personal security, the preservation
of every person's good name from the vile arts of detraction is
justly included. The laws of the ancients, no less than those of
698 DISCHARGE
modern nations, made private reputation one of the objects of
their protection. ' '
The reasonable presumption is that Congress, being engaged
in framing a statute so much requiring precision of terms, ex-
pected its language to be interpreted by long-settled usage in
legal nomenclature. We shall not particularly refer to the many
decisions of courts where this subject has been considered, but
will limit our references to cases where this particular language
of the bankruptcy act and its construction were involved. Mc-
Donald V. Brown, 23 R. I. 546, 51 Atl. 213, 58 L. R. A. 768, 91
Am. St. Rep. 659 ; Sanderson v. Hunt, 116 Ky. 435, 76 S. W. 179 ;
McChristal v. Clisbee, 190 Mass. 120, 76 N. E. 511, 3 L. R. A.
(N. S.) 702.
We are not aware of any decision of the Federal Courts upon
this precise question, but there are several which seem to point
to the conclusion that the injuries contemplated in § 17 of the
bankrupt act are not restricted to those which are inflicted upon
the physical x>erson of the party, but extend to those inherent
rights of the person, which stand in the same class as his right
to security from violence done to his body. Tinker v. Colwell,
193 U. S. 473, 24 Sup. Ct. 505, 48 L. ed. 754 ; In re Freche (D. C.)
109 Fed. 620; In re Maples (D. C.) 105 Fed. 919. And see
Leicester v. Hoadley, 66 Kan. 172, 71 Pac. 318, 65 L. R. A. 523.
The order ()i the Circuit Court must be afSrmed, with costs.^
I/"
PETERS V. UNITED STATES ex rel. KELLEY
177 Fed. 885, 101 C. C. A. 99
(Circuit Court of Appeals, Seventh Circuit. January 28, 1910)
After relatrix was adjudged a bankrupt by the court below,
and before she was discharged, appellant as sheriff took her into
custody under an execution against her body. The execution was
issued by virtue of a judgment entered against her in favor of
Michael Burke by the Circuit Court of Champaign county. 111.,
before her voluntary petition in bankruptcy was filed. On her
petition for a writ of Kaheas corpus in the District Court, she
was temporarily released from custody, pending her application
for a discharge in bankruptcy. After her discharge in bank-
ruptcy was granted, the District Court considered her petition
for the writ, the sheriff's return, and certain testimony, and
9— See Friend t. Talcott, 228 U.
S. 27.
DISCHARGE 699
thereupon entered the order appealed from, finally discharging
relatrix from the custody of the sheriff.
§ 17 of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 550
(U. S. Comp. St. 1901, p. 3428), as amended in 1903 (Act Feb.
5, 1903, c. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1909,
p. 1310]), provides that '*A discharge in bankruptcy shall re-
lease a bankrupt from all of his provable debts, except such as
• • * (2) are liabilities * • * for willful and malicious
injuries to the person or property of another. ' '
The sheriff's return exhibited the record of the proceedings
and judgment of the Champaign county Circuit Court. On the
hearing, relatrix admitted that the proceedings and judgment
were correctly stated in the return.
Burke's declaration was in three counts. The first was the
common-law count for trespass vi et armis. The second stated
that Burke was 11 years old, and was attending a public school
in Champaign county, of which relatrix was the teacher; that
relatrix, under pretense of inflicting punishment upon him for
some alleged infraction of the rules, kept him after school, and
then and there, without any just or sufficient excuse, unlawfully,
willfully, wantonly, and maliciously struck and beat him vio-
lently with a certain stick or club ; that the punishment admin-
istered as aforesaid was grossly and maliciously excessive;
whereby he was permanently injured, etc. The third also de-
tailed a "wanton and malicious" assault with a stick and club.
Relatrix pleaded the general issue ; also that the alleged assault
was only a moderate and proper punishment of Burke as pupil
by relatrix as teacher; and, further, that the alleged assault
occurred while relatrix was making a proper defense against an
assault by Burke.
On issues so tendered, and closed by Burke's general replica-
tion, the jury returned a general verdict of guilty and assessed
Burke 's damages at $1,800. Judgment in due form was entered.
Relatrix prayed an appeal to the Appellate Court of Illinois, but
the appeal was never perfected ; and no bill of exceptions, pre-
serving the evidence and the instructions of the court to the
jury, was ever filed.
At the habeas corpus hearing the District Court permitted
relatrix, over appellant's objection, to go into her side of the
merits of the alleged assault. Appellant introduced no evidence
touching the original occurrence on which the declaration was
based.
700 DISCHARGE
BAKER, Circuit Judge (after stating the facts as above).
If the District Court and this court were at liberty to inquire
de novo into the question whether relatrix inflicted a willful
and malicious injury upon the person of her 11 year old pupil,
a fair answer could not be given from, this record. Relatrix
and her witnesses gave their present version of her side of the
story (some of them admitting on cross-examination that they
were adding matters not testified to by them in the State Court) ;
but the boy and his witnesses did not attend the hearing in the
District Court. We could not properly pass upon the truth of
the original charge de novo, without considering the testimony
in support of the charge.
Relatrix 's direct adversary in the District Court was not the
boy, but the sheriff; and he evidently thought he was doing
his full duty as a disinterested officer of the law when in re-
sponse to the demand that he show cause why he detained rela-
trix in custody he produced the writ he held and the record of
the proceedings and judgment on which the writ was issued.
And so he was; for a writ of habeas corpus cannot lawfully be
used as a means of bringing the original parties into court to
relitigate their original controversy — it cannot even be used law-
fully to review and revise alleged errors of law or fact in the
original litigation. "No court may properly release a prisoner
under conviction and sentence of another court, unless for want
of jurisdiction of the cause or person, or for some other matter
rendering its proceedings void. Where a court had jurisdiction,
mere errors which have been committed in the course of the pro-
ceedings cannot be corrected upon a writ of itabeas corpus,
which may not in this manner usurp the functions of a writ of
error." Kaizo v. Henry, 211 U. S. 146, 29 Sup. Ct. 41, 53 L.
ed. 125, and cases there cited. Also Ex parte Watkins, 3 Pet.
193, 7 L. ed. 650, and In re Lennon, 166 U. S. 548, 17 Sup. Ct.
658, 41 L. ed. 1110. ^i
The character of the "liability," as that word is used in
amended § 17 (2) of the bankruptcy act, is not changed by the
fact that the liability was reduced to judgment. Tinker v. Col-
well, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. ed. 754; Boynton v.
BaU, 121 U. S. 457, 466, 7 Sup. Ct. 981, 30 L. ed. 985 ; Wiscon-
sin V. Pelican Ins. Co., 127 U. S. 265, 292, 8 Sup. Ct. 1370, 32 L.
ed. 239. The question, therefore, is whether the judgment of the
State Court is conclusive evidence of a liability of relatrix for
DISCHARGE 701
a willful and malicious injury to the person of the judgment
plaintiff.
"Willful and malicious injury," in the bankruptcy act and
everywhere in the law, does not necessarily involve hatred or
ill will as a state of mind, but arises from "a wrongful act, done
intentionally, without just cause or excuse. " "In order to come
within that meaning as a judgment for a willful and malicious
injury to person or property, it is not necessary that the cause
of action be based upon special malice, so that without it the
action could not be maintained." Tinker v. Colwell, 193 U. S.
473, 485, 24 Sup. Ct. 505, 508, 48 L. ed. 754.
In the second and third counts of the declaration the charge
was explicitly made that relatrix inflicted the injury willfully
and maliciously; that she intentionally overstepped her author-
ity as teacher, and administered an excessive punishment with-
out just cause or excuse. By her pleas of denial, of authority as
teacher, and of self-defense, she accepted the gage ; and the jury
found her guilty. What the evidence was, what the instructions
were, we do not know; nor, if the second and third were the
only count-s, could we inquire, for unquestionably a judgment
thereon would be conclusive that in fact and in law the relatrix
had inflicted a willful and malicious injury upon the person of
the judgment plaintiff.
Relatrix contends that under the first count, for trespass
vi et armis, a recovery could be had without proof of a willful
and malicious injury, and thereupon insists that it was not erro-
neous for the District Court to inquire de novo into the real na-
ture of the alleged assault. If the assumption as to the charac-
ter of the first count were warranted, the predicated result would
not follow. The most that would be authorized (if anj'thing)
would be to show that at the trial in the State Court no evidence
was introduced in support of the second and third counts, and
that the evidence which was introduced under the first count
did not tend to prove a willful and malicious injury. This,
not on the theory of disputing the record or questioning the ad-
judication, but on the theory that the record was ambiguous, and
that therefore evidence dehors the record was proper and nec-
essary to disclose what in truth had been adjudicated. The
assumption, however, is unwarranted, for by the law of Illinois
(as generally elsewhere) a judgment for damages under a count
of trespass ri et armis cannot lawfully be rendered except upon
proof of a willful and malicious injury. Jernberg v. Mix, 199
702 DISCHARGE
111. 254, 65 N. E. 242 ; Gilmore v. Fuller, 198 111. 143, 65 N. E.
84, 60 L. R. A. 286 ; Forsyth v. Vehmeyer, 176 111. 365, 52 N. E.
55 ; In re Mullen, 118 111. 551, 9 N. E. 208 ; In re Murphy, 109
111. 31; Paxton v. Boyer, 67 111. 133, 16 Am. Rep. 615; Razor v.
Kinsey, 55 111. App. 605 ; Tinker v. Colwell, 193 U. S. 473, 24
Sup. Ct. 505, 48 L. ed. 754; McChristal v. Clisbee, 190 Mass.
120, 76 N. E. 511, 3 L. R. A. (N. S.) 702. And the full faith
and credit to which the judgment of the State Court is entitled
would not be rendered if a doubt were entertained that the
jury under proper instructions based their verdict on sufficient
evidence.
The order appealed from is reversed, and the cause is remanded
to the District Court with the direction to dismiss the petition.^^
GROSSCUP, Circuit Judge (dissenting). The policy of the
Bankruptcy Law is to discharge all honest debtors who have
fallen into insolvency, that they may have another opportunity
in the race of life. The debtors excepted from this general policy
are those who have become such through "fraud," or through
the obtaining of property ''by false pretenses or false repre-
sentations, ' ' or through the committing of * * willful and malicious
injuries to the person or property of another. ' ' Under the old
bankruptcy law, the exception founded on fraud could only be
made out by the disclosure of "a fraud involving moral turpi-
tude or intentional wrong, ' ' and did not extend to a mere fraud
implied by law. Hennequin v. Clews, 111 U. S. 676, 681, 4 Sup.
Ct. 576, 28 L. ed. 565 ; Forsyth v. Vehmeyer, 177 U. S. 177, 20
Sup. Ct. 623, 44 L. ed. 723 (quotation from Tinker v. Colwell,
193 U. S. 488, 24 Sup. Ct. 509, 48 L. ed. 754). The Supreme
Court does not hold that "fraud," as the word is employed in
the present bankruptcy act, is met by anything less than the fore-
going, for it says (Tinker v. Colwell, 193 U. S. 489, 24 Sup. Ct.
509, 48 L. ed. 754) :
"Assuming that the same holding would be made in regard to
the fraud mentioned in the present act, it is clear that the cases
are unlike. The implied fraud which the Court in the above-
cited cases released was of such a nature that it did not impute
10 — The concurring opinion of N. Y. 175 (wrongful conversion of
Seaman, Circuit Judge, is omitted. stocks), ace. Cf. Tompkins v. "Wil-
McChristal v. Clisbee, 190 Mass. 120, liams, 137 App. Div. 521, 122 N. Y.
3 L. E. A. (N. S.) 702, 5 Ann. Cas. Supp. 152.
769; Kavanaugh v. Mclntyre, 210 ^^^^j j^^j.
DISCHARGE 703
either bad faith or immorality to the debtor, while in a judg-
ment founded upon a cause of action, such as the one before us
[crim. con.] the malice which is implied is of that very kind
which does involve moral turpitude."
And, of course, a debtor who has become such through the ob-
taining of property by false pretenses or false representations
(the second element of the list of exceptions), necessarily has
become such debtor by bad faith, or conscious wrong. Up to this
point then, so far as the Supreme Court has construed the pres-
ent bankruptcy act, the exceptions are founded upon the ele-
ment of bad faith or conscious wrong involved in the debts from
which release is asked.
Is the third exception, ** willful and malicious injuries to the
person or property of another, ' ' to receive a like interpretation ?
I am deeply impressed with the belief that such will be the inter-
pretation put upon it by the Supreme Court when the question
is squarely presented to that Court. This impression is founded,
first, upon the care that the court has taken in Tinker v. Col-
well to exclude any contrary impression; for in every sentence
of the court's opinion, stress is laid upon the element of actual
bad faith and moral turpitude involved in the particular debt
before the court.
' * The judgment here mentioned comes, as we think, ' ' says the
court, "within the language of the statute reasonably construed.
The injury for which it was recovered is one of the grossest
which can be inflicted upon the husband, and the person who
perpetrates it knows it is an offense of the most aggravated char-
acter; that it is a wrong for which no adequate compensation
can be made, and hence personal and particular malice towards
the husband as an individual need not be shown, for the law
implies that there must be malice in the very act itself, and we
think Congress did not intend to permit such an injury to be re-
leased by a discharge in bankruptcy. ' ' ( The italics are my own. )
I am also impressed that it is the interpretation that, to
carry out the intention of Congress, ought to be put upon the
phrase as used in the bankruptcy act. The exception is in the na-
ture of a denial — ^the denial of something that all others obtain.
And it seems to me that Congress meant that this denial should
be interposed, not lipon any mere fiction of the law, or any
mere empty implication of the law, but only upon the disclosure
of something, in the transaction out of which the debt arose, that
gives to it the color of bad faith or conscious wrong doing.
704 DISCHARGE
The case before us is that of a school teacher, who, in the
lawful exercise of her power to inflict punishment, has inflicted
excessive punishment. I say this is the case before us, because
unless such be a "willful and malicious injury" within the
meaning of the bankruptcy act, the judgment in the trespass suit
is not conclusive upon the bankruptcy court; for, by the law of
Illinois and most common law jurisdictions, under the issue
raised by the first count (trespass vi et armis for simple assault
and battery), the pleas of moderate castigavit and son assaiilt
demesne, and the replication de injuria, a recovery could be had
for an excess of force employed by the relatrix beyond reasonable
chastisement, assuming, of course, that the evidence submitted
warranted such recovery. Ayres v. Kelley, 11 111. 17 ; Fortune
V. Jones, 30 111. App. 116 ; Hannen v. Edes, 15 Mass. 347 ; Ben-
nett V. Appleton, 25 Wend. 371; Devine v. Rand, 38 Vt. 621.
And, for the purpose of this appeal, the scope of that judgment,
where doubt or ambiguity exists, must be construed most strongly
against him who invokes it as res judicata; from which it fol-
lows, that the verdict returned, being a general verdict (and
being as applicable to the first count as to the second or third
counts) is as applicable to a case of mere excess of force, ini-
tially lawful, employed beyond reasonable chastisement, though
without any conscious or designed wrong-doing, as it would be
to a case of assault originating in conscious wrong-doing.
No one pretends that a school teacher chastising a pupil, or a
master of a vessel punishing some member of his crew, or an
individual resisting an assault, may not, without actual malice,
go beyond the force actually needed and therefore make them-
selves liable to a civil action for trespass vi et armis. In each of
these cases, the malice imputed may be the mere "fiction of
malice ' ' — a fiction created to give the complaining party a stand-
ing for a civil suit in the form of action selected. There is in
such conduct, unless of course actual malice is shown, no bad
faith or conscious wrong — nothing indeed that distinguishes the
moral quality of the act from the moral quality of the owner
of a factory who allows his employees to come into contact with
defective machinery, or the owner of a carriage who takes in a
passenger with knowledge that he has a defective vehicle, or,
as put by Justice Peckham in Tinker v. "Colwell, supra, "one
who negligently drives through a crowded thoroughfare and neg-
ligently runs over an individual, would not, as I suppose, be
within the exception."
DISCHARGE 705
True, in In re ]\Iurphy, 109 111. 31, it was siiid that malice was
the gist of an action of trespass for assault and battery; but
it was not ruled that mere malice, as a fiction of law, was the
same thing as conscious wrong-doing. The facts in In re Murphy
are not given. The case relied on as a precedent was First Na-
tional Bank of Flora v. Burkett, 101 111. 392, 40 Am. Rep. 209,
in which it was said:
"It (malice) in some cases implies a wrong inflicted on an-
other, with an evil intent or purpose, and this is the sense in
which it is employed in the statute."
And for anything appearing in In re Murphy, it was that
kind of malice that was there shown. Indeed, the court says,
speaking of the facts before it (as already said, the facts are
not reported) :
"Here there was an Intent to do harm, and an unlawful exe-
cution of that intent, resulting in the infliction of a wrong and
injury upon another. Under such circumstances was malice
the gist of the action?"
And that this, in its application to the state insolvent law,
is as far as the Supreme Court of Illinois meant to go (consid-
ering the case as one of actual malice and not mere malice by
fiction of law) is shown by that court in the subsequent case of
Jemberg v. Mix, 199 111. 254, 256, 65 N. E. 242, where it is said :
■'The term 'malice,' as used in the act in question (the in-
solvent act) applies to that class of wrongs which are inflicted
with an evil intent, design or purpose. It implies that the guilty
party was actuated by improper or dishonest motives, and re-
quires the intentional perpetration of an injury or a wrong on
another. ' '
Let me not be misunderstood. As I understand the Supreme
Court of the United States in Tinker v. Colwell, and the Su-
preme Court of Illinois in the cases just spoken of, a distinction
is observed, where the bankruptcy and insolvent laws are in-
volved, between malice as a fiction of law and malice arising from
bad faith or conscious wrong-doing. Indeed, in the suppositi-
tious case stated by Justice Peckham, the form of action might
have been trespass vi et armis or trespass on the case, that is to
say might have been an action implying malice by fiction of law,
or an action not implying malice at all, depending, on the elec-
tion of the plaintiff, whether he counted upon the negligence or
upon the forcible invasion of his right to security as the basis
of recovery, Percival v. Hickey, 18 Johns. (N. Y.) 257, 9 Am.
H. & A. Bankruptcy — 45
706 DISCHARGE
Dec. 210. That Congress intended that discharge from debts,
under this exception to the general policy of the bankruptcy law,
should be granted or denied, not according to the real inherent
quality of the transaction out of which the debt arose, but wholly
in accordance with the accident whether recovery is sought in one
form of action or another, I cannot believe; for whether, as a
mere fiction of law, there be malice or not, the moral character
of the wrong complained of is the same, the evidence alone de-
termining the animus of the act. And in the case before us, the
evidence alone can determine whether or not the excessive pun-
ishment was due to an honest mistake of judgment or want of
due care, or whether it was due to motives of ill-will, hatred and
malevolence.
I am giving expression to this dissent because, in my judg-
ment the majority opinion misinterprets Tinker v. Colwell (and
in that decision there were four dissenting justices) ; and be-
cause this misinterpretation, unless this clause of the bankruptcy
act is construed by the Supreme Court, is liable to be followed
by what seems to me an unjust, if not unauthorized, applica-
tion of the law.
One other phase of this question has thus far wholly gone
unnoticed. The phrase, in the bankruptcy act, is ''willful and
malicious injuries." If this means that willfulness and malice,
even though the malice be merely a fictitious malice, must con-
cur, then the case of a school teacher, master of a vessel, or party
assaulted, who uses more force than what is needed, but does it
without consciousness of such excess, cannot be said to be willful,
for "willful" means conscious intention. And to put such an
interpretation upon the phrase — ^joining the two words as char-
acterizing the act — brings this third exception into line with
the first and second exceptions, to-wit, "fraud" and the obtain-
ing of property by * * false pretenses or false representations. ' '
I am not sure that the order appealed from in this case should
be affirmed. That might preclude the holder of the judgment
from showing, in some appropriate way, that the injury was
actually malicious. But the judgment from which this is a dis-
sent, on the other hand, accepts the judgment in the trespass suit
as res judicata, and thereby forestalls any appropriate inquiry
as to whether the injury was without actual malice, bad faith,
or conscious wrong-doing.
DISCHARGE 707
DUNBAR V. DUNBAR
190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. 757
[See this case given on page 424, ante.]
In re WARTH
200 Fed. 408, 118 C. C. A. 560
(Circuit Court of Appeals, Second Circuit. November 11, 1912)
NOYES, Circuit Judge. The District Court properly re-
strained the petitioner from enforcing her judgment in case,
but only in case, it was dischargeable. And whether it were dis-
chargeable depends upon the real nature of the action in which
the judgment was obtained. Its form was immaterial.
The action was in form for breach of promise to marry. The
seduction was in form but an aggravation of the damage. The
strict rule of the common law that a woman who consents can-
not complain directly of the greatest possible wrong, had to be
adhered to. But the action while in form upon contract was in
substance for the gross fraud which the man perpetrated in
taking advantage of the confidential relation established by the
marriage engagement to accomplish the woman's dishonor. The
substantial damages which the petitioner obtained were not for
the deprivation of the matrimonial alliance, but for the loss of
character and the ever-continuing shame and sorrow.
It has been the policy of the Bankruptcy Act to discharge
honest debtors but not to afford a shield to willful wrongdoers
and to avoid the possibility that seducers might take advantage
of it, Congress in 1903 passed an amendment providing that lia-
bility for "the seduction of an unmarried female" should not
be discharged. The provision is broad and we have no doubt
applies and was intended to apply to every case where there is
liability for seduction whether the action to enforce such lia-
bility be based, as is permitted in some states, directly upon the
essential wrong, or by reason of the limitations of the common
law, be founded upon the incident — the refusal to marry. To
say that Congress intended to distinguish between these cases
is to say that it intended to further favor seducers in those juris-
dictions where they are already favored by adherence to an
artificial form of action which often operates to prevent the en-
forcement of a morally just demand.
708 DISCHARGE
The contention is made that as the action is in form for
breach of contract some portion of the damages awarded must
have been for the loss of the matrimonial alliance and that as the
judgment cannot be split up all must be discharged. As already
pointed out, however, the real wrong for which the plaintiff re-
covered was for the seduction, and in the absence of any showing
to the contrary it will be presumed that the substantial dam-
ages were awarded for that.
The order of the District Court is reversed with costs.^^
GEE V. GEE
84 Minn. 384, 87 N. W. 1116
(Supreme Court of Minnesota. Nov. 22, 1901)
LOVELY, J. Plaintiff and defendant formed a partnership
on the 30th of July, 1896, for the purpose of buying and selling
grain on commission. Plaintiff was to give no attention to the
business. Defendant was personally to conduct the same, and
receive $60 per month therefor. Such connection continued un-
til January 7th following, when it was dissolved by mutual con-
sent. Thereafter an action was brought by plaintiff against
his partner for an accounting, which was submitted to a referee.
The referee heard the evidence, arid made findings on which
judgment was ordered against the defendant for a substantial
sum, which was duly entered and docketed. In September of the
following year defendant made application for the benefits of
the federal bankrupt act, in which he properly scheduled his
liabilities, including plaintiff's judgment, and, upon proceedings
duly had, was legally discharged. The judgment against de-
fendant still remaining of record, under the provisions of c. 262,
Gen. Laws 1899, he moved the District Court in which it was
docketed to discharge the same. At the hearing of this motion
it was claimed by plaintiff that the judgment was excepted from
the discharge in bankruptcy, and he was given leave to bring
suit thereon, which he did. Defendant answered, setting up his
discharge in bankruptcy. Plaintiff, by reply, alleged that the
judgment referred to was for defendant's fraud and misap-
propriation while acting in a fiduciary capacity, which facts,
under his claim, excepted the judgment from the effect of the
11 — Followed in In re Grounds,
215 Fed. 280. ' -••'-• -. --
DISCHARGE 709
bankruptcy discharge. The action was tried to the District
Court for St. Louis county, which, after having made findings
of fact and law in favor of defendant, ordered judgment thereon.
Plaintiff moved for a new trial upon a settled case, which was
denied. From this order, plaintiff appeals.
Under plaintiff's contention, the disposition of this appeal is
within a very narrow compass, depending upon the construc-
tion of that portion of the federal bankrupt act of 1898 which
excepts from the discharge "judgments in actions for frauds,
• * • or debts created by fraud, * * * in any fiduciary
capacity. ' ' 30 Stat. 550, § 17, els. 2, 4. Plaintiff insists, first,
that the action for accounting was based upon the fraudulent acts
of the defendant in the misappropriation of partnership funds
and property. His theory is that the partnership was controlled
by an agreement under which defendant was authorized to with-
draw $60 per month for his services, and no more ; also that it
was defendant's duty to render an account from month to
month, which he did not do. Other than the connection between
the partnership agreement and general allegations of deficit
and misappropriation of funds by defendant, there was nothing
in the complaint in the suit before the referee which would
justify the claim that fraud was litigated therein. It was an
ordinary equitable action for an accounting between partners,
sounding in contract (3 Pom. Eq. Jur. p. 1431), and asking for
a money judgment. Neither do we think the findings of the
referee justify the claim that defendant was guilty of defraud-
ing plaintiff in the conduct of the partnership business. It was
found by the referee that during the period of the partnership
defendant "converted" a certain sum of money, which counsel
claims ex vi termini indicates fraud ; but it is clear from the re-
maining findings that the word ' ' converted ' ' was used in no such
sense, but to describe conduct not inconsistent with honesty and
good faith. From which it follows that neither the findings nor
the judgment entered thereon in the suit before the referee es-
tablished any fraud by defendant in the management of the
partnership business. As distinguished from the previous United
States bankruptcy acts, the act of 1898 provides for two sep-
arate classes of exceptions from the discharge of the bankrupt,
viz., one in which the judgment must be for fraud, and the other
in which the debt must have arisen upon embezzlement, misap-
propriation, or fraud in a " fiduciary capacity. " It is probable,
as held in Re Rhutassel (D. C.) 96 Fed. 597, that it was the
710 DISCHARGE
purpose of the present bankruptcy act to provide that in the
first class of cases the fraud should be shown or evidenced by a
judgment, or at least disclosed in the judgment roll, while in
the case of debts for "fraud in a fiduciary capacity" proof of
the fiduciary capacity would furnish the test of the exception
which would apply to cases of violation of express trusts. But
it is not necessary in this case to anticipate a decision of the
Supreme Court of the United States in that respect, for the trial
judge, not having before it a judgment for fraud, fully consid-
ered the weight of evidence on that question, and found that
there was no fraud, upon testimony that amply supports his
conclusions in that respect, and forecloses any further inquiry
upon that issue here, leaving for us the simple duty of constru-
ing the meaning of the provision that excepts * 'fraud in a fidu-
ciary capacity" from the operation of the bankruptcy dis-
charge. So that it only remains to be considered whether, un-
der the partnership agreement, a violation of the obligations im-
posed upon the defendant by its provisions for payment and
account for moneys received, as well as the defendant's with-
drawal of more money than his salary, was a breach of a fidu-
ciary relation, within the purview of the bankruptcy exception
referred to. In the national acts of bankruptcy for 1841 and
1867 the discharge of the bankrupt excepts him from a debt of
a similar nature. In both of these acts the word "fiduciary"
was employed as a designation of the relation from which a dis-
charge would not operate, and such term has received authorita-
tive interpretation from the highest tribunal in the land, which
concededly has final jurisdiction in such matters. The term "fi-
duciary" in the provisions of these acts has been held by the
United States Supreme Court, as well as other courts, to apply
to what may be understood as technical or express, rather than
implied, trusts, and as excluding from such interpretation frauds
by commission men, brokers, agents, etc. Neal v. Clark, 95 U.
S. 704, 24 L. ed. 586 ; Hennequin v. Clews, 111 U. S. 676, 4 Sup.
Ct. 576, 28 L. ed. 565 ; Palmer v. Hussey, 87 N. Y. 303 ; Id., 119
U. S. 96, 7 Sup. Ct. 158, 30 L. ed. 362 ; Noble v. Hammond, 129
U. S. 65, 9 Sup. Ct. 235, 32 L. ed. 621. The implied trust rela-
tion existing between partners, under which their liabilities to
each other must be determined, does not bring their affairs
within the definition of the excepted term, "fiduciary," in the
bankruptcy act, under the construction given in the above deci-
sions. In a leading case in a court of high authority, which had
DISCHARGE 711
previously decided that implied as well as express trusts were
embraced in the exception of the bankruptcy act referred to, it
was held that even under such interpretation the exception of
the act would not extend to an implied trust between the mem-
bers of a partnership (Hill v. Shiebley, 68 Ga. 556) ; and we
are clearly of that opinion. While the collocation of language
in which the term "fiduciary" is used in the former acts is not
precisely the same as in the act of 1898, there is no reason to
apprehend that a different construction will be given to that
word than by the previous decisions in the court of final juris-
diction in such matters. In re Basch (D. C.) 97 Fed. 761;
Bracken v. Milner (C. C.) 104 Fed. 522.
The order appealed from is affirmed.
ZAVELO V. REEVES
227 U. S. 625, 57 L. ed. 676, 33 Sup. Ct. 365
[See this case given on page 391, ante.]
ALLEN & CO. V. FERGUSON
18 Wallace, 1, 21 L. ed. 854
(United States Supreme Court. October Term, 1873)
P. H. Allen & Co. sued A. H. Ferguson upon a promissory
note, dated March 20th, 1867, payable one day after date, with
interest.
Ferguson appeared and pleaded his discharge in bankruptcy
in bar to the action.
The plaintiffs replied a new promise in writing made while the
proceedings in bankruptcy were pending. This promise the
plaintiffs averred that they relied upon, and in consequence of
it made no efforts to collect their debt. The alleged promise
was contained in the following letter, which the plaintiffs made
part of their replication, viz. :
"Crockett's Bluff, Arkansas, January 7th, 1868.
"Messrs. T. H. Allen & Co.
"Dear Sir: I avail myself of this opportunity to give you a
fare statement of my pecuniary affa'res. First, I failed to make
a crop ; secondly, find myself involved as security to the amount
of five or eight thousand dollars; was sued, and judgments was
712 DISCHARGE
render 'd against ine at the last turm of our co'rt for about
$4000, a sum suf 'ie'ent to sell all the avai'ble property that I
am in possession of. I lost about $3000 by persons taking the
bankrupt law. This is my situation. I was, as you can re'dily
conclude, in a bad fix. To remain as I was, at that time, my
property would be sold to pay security debts, and my just cred-
itors would not get any part of it, and that I would be redused
to insolvency and still ju'gments against me. As a last resort
concluded to render a skedule myself in order to forse a pro-
rater division of my affects. The five bales cotton I shipt you
was all my crop, to pay you for the meat that you had sent me,
to enable me to make the little crop that I did make. The cash
that I requested you to send me was, for myself and "William
Ferguson, to pay his hands for labor ; and one hundred and fifty
yards of the bag'ing was for W. Ferguson, and one barel of the
salt. I have been absent from home for the last two weeks ; got
home last night, and has not scan him yet, but suppose he has
shipt you some cotton. If he has not done so, I will see that he
sends you cotton at once. Be satisfied; all will he right. I in-
tend to pay all my just debts, if money can he made out of
hired labor. Security debt I cannot pay. I shall have a hard
time, I suppose, this se'son, but will do the best I can.
"Jan. 8. — Since the above was writ 'en I have seen "William
Ferguson. He says he ship'ed you two bales cotton, ten or
twelve days ago, and ship'ed in my name, as the baggin' was
order 'd by me for him. William Ferguson will be in Memphis
betwixt this and the first of March, and will call and see you on
bisness matters betwixt me and you 'self. All will be right be-
twixt me and my just creditors. Don't think hard of me. At-
tribet my poverty to the unprincipel'd Yankey. Let me heare
from you as usel.
''Yours, very respectfully,
"A. H. Ferguson."
To this replication the defendant demurred. The demurrer
was sustained by the Circuit Court, and this appeal was taken
by the plaintiffs.
Mr. Justice HUNT delivered the opinion of the court.
The question is, does the letter of the defendant, set forth in
the replication, contain a sufficient promise to pay the debt in
suit?
DISCHARGE 713
All the authorities agree in this, that the promise by which
a discharged debt is revived must be clear, distinct, and un-
equivocal. It may be an absolute or a conditional promise, but
in either case it must be unequivocal, and the occurrence of the
condition must be averred if the promise be conditional. The
rule is different in regard to the defense of the statute of limi-
tations against a debt barred by the lapse of time. In that case,
acts or declarations recognizing the present existence of the
debt have often been held to take a case out of the statute. Not
so in the class of cases we are considering. Nothing is sufficient
to revive a discharged debt unless the jury are authorized by
it to say that there is the expression by the debtor of a clear
intention to bind himself to the payment of the debt. Thus,
partial payments do not operate as a new promise to pay the
residue of the debt. The payment of interest will not revive the
liability to pay the principal, nor is the expression of an in-
tention to pay the debt sufficient. The question must be left to
the jury with instructions that a promise must be found by
them before the debtor is bound. (Hilliard on Bankruptcy, 264
to 266, where the cases are collected.)
The plaintiffs in error contend that such promise is to be found
in the letter of the defendant, forming a part of their replica-
tion. They rely chiefly on these expressions : "Be satisfied ; all
will be right. I intend to pay all my just debts, if money can
be made from hired labor. Security debt I cannot pay," and on
the postscript where he adds, ' ' All will be right betwixt me and
my just creditors."
There can be no more uncertain rule of action than that which
is furnished by an intention to do right. How or by whom is
the right to be ascertained ? What is right in a particular case ?
Archbishop Whately says: "That which is conformable to the
supreme will is absolutely right, and is called right simply,
without reference to a special end. The opposite to right is
wrong." This announces a standard of right, but it gives no
practical aid. What may be right between the defendant and
his creditors is as difficult to determine as if he had no such
standard. It is not absolutely certain that it is right for a
creditor, seizing hs debtor, to say, Pay me what thou owest, or
that it is wrong for the debtor to resist such an attack. It is
not unnatural that the creditor should think that payment of the
debt was right, and that it was the only right in the case. It is
equally natural that the debtor should entertain a different opin-
714 DISCHARGE
ion. The law holds it to be right that a debtor shall devote
his entire property to the payment of his debts, and when he has
done this that after-acquired property shall be his own, to be
held free from the obligation of all his debts, just debts as well
as unjust, principal debts as well as security debts. Neither
the supreme will, so far as we can ascertain it, nor the laws of
the land, require that a debtor whose family is in need, or who
is himself exhausted by a protracted struggle with poverty and
misfortune, should prefer a creditor to his family ; that he should
appropriate his earnings to the payment of a debt from which
the judgment of the law has released him, rather than to the
support of his family or to his own comfort. What an honest
man should or would do under such circumstances it is not
always easy to say. When, therefore, the debtor in this case
said to the plaintiff: "Be satisfied; I intend to do right; all
will be right betwixt my just creditors and myself," he cannot
be understood as saying that he would certainly pay his debt,
much less that he would pay it immediately, as the plaintiff
assumes. What is or what may be right depends upon many
circumstances. The principle is impracticable as a rule of ac-
tion to be administered by the courts. There is no standard
known to us by which we are able to say that it is wrong in the
defendant not to pay the plaintiff's debt.
We are of the opinion that the letter produced does not con-
tain evidence of a promise to pay the debt in suit, and that
the judgment appealed from must be affirmed. ^^
12 — See Matthewson v. Needham,
81 Kans. 340, 26 L. R. A. (N. S.)
274.
APPENDIX
STATUTES
STATUTE OF 13 ELIZABETH
Ch. 5
§ 1. For the avoiding and abolishing of feigned, covinous, and fraudu-
lent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judg-
ments, and executions, as well of lands and tenements as of goods and
chattels, more commonly used and practised in these days than hath been
seen or heard of heretofore: which feoffments, gifts, grants, alienations^
conveyances, bonds, suits, judgments, and executions have been and are
devised and contrived of malice, fraud, covin, collusion, or guUe/to the end,\
purpose, and intent to delay, hinder, or defraud creditors and others of]
tKeir just and lawful actions, suits, debts, accounts, damages, penalties/
forfeitures, heriots, mortuaries, and reliefs, not only to the let or hinderance
of the due course and execution of law and justice, but also to the over-
throw of all true and plain dealing, bargaining, and chevisanee bfetween
man and man, without the which no commonwealth or civil society can be
maintained or continued:
§ 2, Be it therefore declared, ordained, and enacted by the authority of
this present Parliament, that all and every feoffment, gift, grant, alienation,
bargain and conveyance of lands, tenements, hereditaments, goods
and chattels, or of any of them, or of any lease, rent, common, or other
profit or charge out of the same lands, tenements, hereditaments, goods, and
chattels, or any of them, by writing or otherwise, and all and every bond,
suit, judgment, and execution, at any time had or made sithence the be-
ginning of the Queen's Majesty's reign that now is, or at any time here-
after to be had or made, to or for any intent or purpose before declared and
expressed, shall be from henceforth deemed and taken (only as against that
person or persons, his or their heirs, successors, executors, administrators
and assigns, and every of them, whose actions, suits, debts, accounts, dam-
ages, penalties, forfeitures, heriots, mortuaries, and reliefs, by such guileful
covinous, or fraudulent devices and practices as is aforesaid, are, shall, or
might be in any wise disturbed, hindered, delayed, or defrauded), to be
glearly and utterly void, frustrate, and of none effect; any pretence, color,
feigned consideration, expressing of use, or any other matter or thing to
the contrary, notwithstanding.
§ 3. And be it further enacted by the authority aforesaid, that all and
every the parties to such feigned, covinous, or fraudulent feoffment, gift,
grant, alienation, bargain, conveyance, bonds, suits, judgments, executions,
and other things before expressed, and being privy and knowing of the
same, or any of them, which at any time after the tenth day of June next
coming shall wittingly and willingly put in ure, avow, maintain, justify, or
defend the same, or any of them, as true, simple, and done, had, or made,
bona fide and upon good consideration; or shall alien or assign any of the
lands, tenements, goods, leases, or other things before mentioned, to him or
them conveyed as is aforesaid, or any part thereof ; shall incur the penalty
and forfeiture of one year 's Value of the said lands, tenements, and heredita-
ments, leases, rents, commons, or other profits of or out of the same; and the
whole value of the said goods and chattels ; and also so much money as are or
717
718 STATUTES
shall be contained in any such covinous and feigned bond, the one moiety
whereof to be to the Queen's Majesty, her heirs and successors, and the other
moiety to the party or parties grieved by such feigned and fraudulent feoff-
ment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments,
executions, leases, rents, commons, profits, charges, and other things afore-
said, to be recovered in any of the Queen's courts of record, by action of
debt, bill, plaint, or information, wherein no essoin, protection, or wager of
law shall be admitted for the defendant or defendants; and also being
thereof lawfully convicted, shall suffer imprisonment for one-half year
without bail or mainprise.
§ 6. Provided also, and be it enacted by the authority aforesaid, that
this act, or anything therein contained, shall not extend to any estate or
interest in lands, tenements, hereditaments, leases, rents, commons, profits,
goods, or chattels, had, made, conveyed, or assured, or hereafter to be had,
made, conveyed, or assured, which estate or interest is or shall be upon good
consideration and hotia fide lawfully conveyed or assured to any person or
persons, or bodies politic or corporate, not having at the time of such convey-
ance or assurance to them made any manner of notice or knowledge of
Buch covin, fraud, or collusion as is aforesaid; anything before mentioned
to the contrary hereof, notwithstanding.
NEW YORK STATUTE OF 1829 i
(New York Rev. Stat. 1829, Part II, Ch. VII, Title III) '■•••
§ 1. Every conveyance of assignment, in writing or otherwise, of any
estate or interest in lands, or in goods or things in action, or of any rents
or profits issuing therefrom, and every charge upon lands, goods, or things
in action, or upon the rents or profits thereof, made_with the intent to
(hinder, delay or defraud creditors or other persons of their lawful suits,
damages, forfeitures, debts, or demands, and every bond or other eividence
of debt given, suit commenced, decree or judgment suffered, with the like in-
tent, as against the persons so hindered, delayed, or defrauded, shall be void.
§ 3. Every conveyance, charge, instrument, or proceeding declared to be
void, by the provisions of this chapter, as against creditors* or purchasers,
shall be equally void against the heirs, successors, personal representatives,
or assignees of such creditors or purchasers.
§ 4. The question of fraudulent intent in all cases arising under the
provisions of this chapter shall be deemed a question of fact and not of
law; nor shall any conveyance or charge be adjudged fraudulent as against
creditors or purchasers solely on the ground that it was not founded on a
valuable consideration.
§ 5. The provisions of this chapter shall not be construed in any manner
to affect or impair the title of a purchaser for a valuable consideration,
unless it shall appear that such purchaser had previous notice of the fraudu-
lent intent of his immediate grantor, or of the fraud rendering void the
title of such grantor.
^ These provisions, in somewhat altered phraseology, are to be found
in the present Consolidated Laws, c. 50 (Real Property Law), §§ 263-266;
c. 45 (Personal Property Law), §§ 35, 37. They have furnished the pat-
tern for the legislation of many states. Bigelow, Fraudulent Conveyances
(Knowlton'B edj, pp. H, 25.
UNITED STATES BANKRUPTCY LAW
(ACT OF JULY 1. 1898. CH. 541; 30 Stat, at L. 544; 1 Fed. Stat. Annot. 525)
AS AMENDED BY
THE ACT OF FEBRUARY 5. 1903, CH. 487 (32 Stat, at L. 197; 10 Fed. Stat
Annot. 38); THE ACT OF JUNE 15, 1906, CH. 3333 (34 Stat, at L.
267; 1909 Supp. Fed. Stat. Annot. 55); AND THE ACT OF
JUNE 25, 1910. CH. 412 (36 Stat, at L- 838:
1912 Supp. Fed. Stat. Annot. 21)
AN ACT
To Establish a Unifoem System of Bankruptcy Theoughout thb
United States
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
CHAPTEE I
DEFINITIONS
1 1. Meaning of Woeds and Phrases. — a The words and phrases used
in this Act and in proceedings pursuant hereto shall, unless the same be in-
eousi stent with the context, be construed as follows: (1) "A person
mgainst whom a petition has been filed" shall include a person who has
filed a voluntary petition; (2) "adjudication" shall mean the date of the
entry of a decree that the defendant, in a bankruptcy proceeding, is a
bankrupt, or if such decree is appealed from, then the date when such
decree is finally confirmed; (3) "appellate courts" shall include the circuit
courts of appeals of the United States, the supreme courts of the Terri-
tories, and the Supreme Court of the United States; (4) "bankrupt" shall
include a person against whom an involuntary petition or an application
to set a composition aside or to revoke a discharge has been filed, or who
has filed a voluntary petition, or who has been adjudged a bankrupt; (5)
"clerk" shall mean the clerk of a court of bankruptcy; (6) "corpora
tions" shall mean all bodies having any of the powers and privileges ot
private corporations not possessed by individuals or partnerships, and shall
include limited or other partnership associations organized under laws mak-
ing the capital subscribed alone responsible for the debts of the associa-
tion; (7) "court" shall mean the court of bankruptcy in which the proceed-
ings are pending, and may include the referee; (8) "courts of bankruptcy"
shall include the district courts of the United States and of the Territories,
the supreme court of the District of Columbia, and the United States court
of the Indian Territory, and of Alaska; (9) "creditor" shall include any-
one who owns a demand or claim provable in bankruptcy, and may include
his duly authorized agent, attorney, or proxy; (10) "date of bankruptcy,"
or "time of bankruptcy," or "commencement of proceedings," or "bank-
ruptcy," with reference to time, shall mean the date when the petition waa
filed; (11) "debt" shall include any debt, demand, or claim provable in
bankruptcy; (12) "discharge" shall mean the release of a bankrupt from
all of his debts which are provable in bankruptcy, except such as are ex-
cepted by this Act; (13) "document" shall include any book, deed, or
1 — ^Thoae portions of the Act 1903, 1906 and 1910 are indicated
which remain as originally enacted by the use of italics; the original
in 1898 are printed in Roman type ; form of the amended sections is
changes made by the amendments of given in the footnotes.
H. & A. Bankruptcy — 46
721
722 BANKRUPTCY ACT OF 1898
instrument in writing; (14) "holiday" shall include Christmas, the Fourth
of July, the Twenty-second of February, and any day appointed by the
President of the United States or the Congress of the United States as a
holiday or as a day of public fasting or thanksgiving; (15) a person shall
be deemed insolvent within the provisions of this Act whenever the aggre-
gate of his property, exclusive of any property which he may have con-
veyed, transferred, concealed, or removed, or permitted to be concealed or
removed, with intent to defraud, hinder or delay his creditors, shall not, at
a fair valuation, be sufficient in amount to pay his debts; (16) "judge"
shall mean a judge of a court of bankruptcy, not including the referee;
(17) "oath" shall include affirmation; (18) "officer" shall include clerk,
marshal, receiver, referee, and trustee, and the imposing of a duty upon or
the forbidding of an act by any officer shall include his successor and any
person authorized by law to perform the duties of such officer; (19)
"persons" shall include corporations, except where otherwise specified, and
officers, partnerships, and women, and when used with reference to the
commission of acts which are herein forbidden shall include persons who
are participants in the forbidden acts, and the agents, officers, and members
of the board of directors or trustees, or other similar controlling bodies of
corporations; (20) "petition" shall mean a paper filed in a court of bank-
ruptcy or with a clerk or deputy clerk by a debtor praying for the benefits
of this Act, or by creditors alleging the commission of an act of bankruptcy
by a debtor therein named; (21) "referee" shall mean the referee who has
jurisdiction of the case or to whom the case has been referred, or any one
acting in his stead; (22) "conceal" shaU include secrete, falsify, and
mutilate; (23) "secured creditor" shall include a creditor who has security
for his debt upon the property of the bankrupt of a nature to be assignable
under this Act, or who owns such a debt for which some indorser, surety, or
other persons secondarily liable for the bankrupt has such security upon the
bankrupt's assets; (24) "States" shall include the Territories, the Indian
Territory, Alaska, and the District of Columbia; (25) "transfer" shall in-
clude the sale and every other and different mode of disposing of or
parting with property, or the possession of property, absolutely or condi-
tionally, as a payment, pledge, mortgage, gift, orsecurity; (26) "trustee"
shall include all of the trustees of an estate; /(27) ' ' wagg;earner ' ' shall
mean an individual who works for wages, salary, or hire, at a rate of com-
pensation not exceeding ane_^ousand five hundred dollars per yea'H^ (28)
words importing the masculine gender may be applied to and include cor-
porations, partnerships, and women; (29) words importing the plural num-
ber may be applied to and mean only a single person or thing; (30) words
importing the singular number may be applied to and mean several per-
sons or things.
CHAPTEB II
CaUEATION OF COURTS OF BANKBUPTCY AND THEffi JURISDICTION
§ 2. That the courts of bankruptcy as hereinbefore defined, viz, the dis-
trict courts of the United States in the several States, the supreme court
of the District of Columbia, the district courts of the several Territories, and
the United States courts in the Indian Territory and the District of Alaska,
are hereby made courts of bankruptcy, and are hereby invested, within their
BANKRUPTCY ACT OF 1898 723
respective territorial limits as now established, or as they may be hereafter
changed, with such jurisdiction at law and in equity as will enable them
to exercise original jurisdiction in bankruptcy proceedings, in vacation in
chambers and during their respective terms, as they are now or may be
hereafter held, to (1) adjudge persons bankrupt who have hadftheir prin-
cipal place of business, resided, or had their domiciled within their respee-
tive territorial jnriafjjctiona for the preceding six months^ or the^reater por-
tioajthfiifiof, or who do not have their principal place of business, reside, or
have their domicile wi^in the United States, but have property within their
jurisdictions, or who have been adjudged bankriipts by courts of competent
jurisdiction without the United States, and have property within their juris-
dictions; (2) allow claims, disallow claims, reconsider allowed or disallowed
claims, and allow or disallow them against bankrupt estates; (3) appoint
receivers or the marshals, upon application of parties in interest, in case the
courts shall find it absolutely necessary, for the preservation of estates, to
take charge of the property of bankrupts after the filing of the petition and
until it is dismissed or the trustee is qualified; (4) arraign, try, and punish
bankrupts, officers, and other persons, and the agents, officers, members of
the board of directors or trustees, or other similar controlling bodies, of
corporations for violations of this Act, in accordance with the laws of
procedure of the United States now in force, or such as may be hereafter
enacted, regulating trials for the alleged violation of laws of the United
States; (5) authorize the business of bankrupts to be conducted for lim-
ited periods by receivers, the marshals, or trustees, if necessary in the best
interests of the estates; and allow such officers additional compensation for
such services, as provided in section forty-eight of this Act;^ (6) bring in
and substitute additional persons or parties in proceedings in bankruptcy
when necessary for the complete determination of a matter in controversy;
(7) cause the estates of bankrupts to be collected, reduced to money and
distributed, and determine controversies in relation thereto, except as herein
otherwise provided; (8) close estates, whenever it appears that they have
been fully administered, by approving the final accounts and discharging
the trustees, and reopen them whenever it appears they were closed before
being fuUy administered; (9) confirm or reject compositions between
debtors and their creditors, and set aside compositions and reinstate the
cases; (10) consider and confirm, modify or overrule, or return, with
. instructions for further proceedings, records and findings certified to them
by referees; (11) determine all claims of bankrupts to their exemptions;
(12) discharge or refuse to discharge bankrupts and set aside discharges
and reinstate the cases; (13) enforce obedience by bankrupts, officers,
and other persons to all lawful orders, by fine or imprisonment or fine
and imprisonment; (14) extradite bankrupts from their respective districts
to other districts; (15) make such orders, issue such process, and enter
such judgments in addition to those specifically provided for as may be
2 — § 2 (5) originally read as fol- ditlonal compensation for such serv-
lows : "(5) authorize the business of lees, but not at a greater rate than
bankrupts to be conducted for Um- In this Act allowed trustees for
ited periods by receivers, the mar- similar services."
sbals, or trustees, If necessary In the The amendment of 1910 struck out
best interests of the estates." the last clause added by the amend-
The amendment of 1903 added thement of 1903 and substituted the
words : "and allow such oflScers ad- words between the asterisks.
724 BANKRUPTCY ACT OF 1898
necessary for the enforcement of the provisions of this Act; (16) punish
persons for contempts committed before referees; (17) pursuant to the
recommendation of creditors, or when they neglect to recommend the ap-
pointment of trustees, appoint trustees, and upon complaints of creditors,
remove trustees for cause upon hearings and after notices to them; (18)
tax costs, whenever they are allowed by law, and render judgments there-
for against the unsuccessful party, or the successful party for cause, or in
part against each of the parties, and against estates, in proceedings in
bankruptcy; (19) transfer cases to other courts of bankruptcy; and (20)
exercise ancillary jurisdiction over persons or property within their respec-
tive territorial limits in aid of a receiver or trustee appointed in any bank-
ruptcy proceedings pending in any other court of bankruptcy.^
Ivlothing in this section contained shall be construed to deprive a court
of bankruptcy of any power it would possess were certain specific powers
not herein enumerated.
CHAPTEK III
BANKRUPTS
§ 3. Acts of Bankruptcy. — a Acts of bankruptcy by a person shall
consist of his having (1) conveyed, transferred, concealed, or removed, or
(permitted to be concealed or removed, any part of his property with intent
[to hinder, delay, or defraud his creditors, or any of them; or (2) trans-
ferred, while insolvent, any portion of his property to one or more of his
creditors with intent to prefer such creditors over his other creditors; or
(3) suffered or permitted, while insolvent, any creditor to obtain a prefer-
ence through legal proceedings, and not having at least five days before a
sale or final disposition of any property affected by such preference vacated
or discharged such preference; or (4) made a general assignment for the
benefit of his creditors; or, being iiisolvent, applied for a receiver or trustee
for his property or because of insolvency a receiver or trustee has been put
in charge of his property under the laws of a State, of a Territory, or of
the United States;* or (5) admitted in writing his inability to pay his
debts and his willingness to be adjudged a bankrupt on that ground.
b A petition may be filed against a person who is insolvent and who has
committed an act of bankruptcy within, four months after the commission
of such act. Such time shall not expire until four months after (1) the
date of the recording or registering of the transfer or assignment when the
act consists in having made a transfer of any of his property with intent
to hinder, delay, or defraud his creditors or for the purpose of giving a
preference as hereinbefore provided, or a general assignment for the benefit
of his creditors, if by law such recording or registering is required or per-
mitted, or, if it is not, from the date when the beneficiary takes notorious,
exclusive, or continuous possession of the property unless the petitioning
creditors have received actual notice of such transfer or assignment.
c It shall be a complete defense to any proceedings in bankruptcy insti-
tuted under the first subdivision of this section to allege and prove that the
party proceeded against was not insolvent as defined in this Act at the time
8 — § 2 (20) was added by the 4 — The Italicized words were added
amendment of 1910. by the amendment of 1903.
BANKRUPTCY ACT OF 1898 725
of the filing the petition against him, and if solvency at sueh date is proved
by the alleged bankrupt the proceedings shall be dismissed, and under said
subdivision one the burden of proving solvency shall be on the alleged
bankrupt.
d Whenever a person against whom a petition has been filed as herein-
before provided under the second and third subdivisions of this section takes
issue with and denies the allegation of his insolvency, it shall be his duty to
appear in court on the hearing, with his books, papers, and accounts, and
submit to an examination, and give testimony as to all matters tending to
establish solvency or insolvency, and in case of his failure to so attend and
submit to examination the burden of proving his solvency shaU rest upon
him.
e Whenever a petition is filed by any person for the purpose of having
another adjudged a bankrupt, and an application is made to take charge of
and hold the property of the alleged bankrupt, or any part of the same,
prior to the adjudication and pending a hearing on the petition, the pe-
titioner or applicant shall file in the same court a bond with at least two
good and sufficient sureties who shall reside within the jurisdiction of said
court, to be approved by the court or a judge thereof, in such sum as the
court shall direct, conditioned for the payment, in case such petition is dis-
missed, to the respondent, his or her personal representatives, all costs,
expenses, and damages occasioned by such seizure, taking, and detention
of the property of the alleged bankrupt.
If such petition be dismissed by the court or withdrawn by the petitioner,
the respondent or respondents shall be allowed all costs, counsel fees,
expenses, and damages occasioned by such seizure, taking, or detention of
such property. Counsel fees, costs, expenses, and damages shall be fixed and
allowed by the court, and paid by the obligors in such bond.
§ 4. Who May Become Bankrupts. — a Any person, except a vmnicipal,
railroad, insurance, or banking corporation, shall be entitled to the benefits
of this Act as ajvolimtary bankrupt.
b Any natural person, except a wage-earner or a pergon ee^aged chiefly
iil_farnung or the tillage of the soil, any unincorporated company, and any
moneyed, btmii^s^of c^omrnerctaT corporation, except a municipal, railroad,
insurance, or hanking corporation, owing debts to the amount of one thou-
sand dollars or over, may be adjudged an involuntary bankrupt upon def aiilt
or an impartial trial, and shall be subject to the provisions and entitled to
the benefits of this Act.
The bankruptcy of a corporation shall not release its officers, directors,
or stockholders, os sv^ch, from any liability under the laws of a State or
Territory or of the United States.^
5 — § 4 originally, read as follows : suits, owing debts to the amount of
"a Any person who' owes debts, ex-* one thousand dollars or over, may be
cept a corporation, shall be entitled adjudged an involuntary bankrupt
to the benefits of this Act as a volun- upon default or an impartial trial,
tary bankrupt, b Any natural person, and shall be subject to the provisions
except a wage-earner or a person en- and entitled to the benefits of this
gaged chiefly in farming or the tillage Act. Private bankers, but not na-
of the soil, any unincorporated com- tional banks or banks Incorporated
pany, and any corporation engaged under State or Territorial laws, may
principally in manufacturing, trading, be adjudged involuntary bankrupts."
printing, publishing, or mercantile pur-
726 BANKRUPTCY ACT OF 1898
§ 5. Partners. — a A partnership, during the continuation of the part-
nership business, or after its dissolution and before the final settlement
thereof, may be adjudged a bankrupt.
b The creditors of the partnership shall appoint the trustee; in other
respects so far as possible the estate shall be administered as herein provided
for other estates.
c The court of bankruptcy which has jurisdiction of one of the partners
may have jurisdiction of all the partners and of the administration of the
partnership and individual property.
d The trustee shall keep separate accounts of the partnership property
and of the property belonging to the individual partners.
e The expenses shall be paid from the partnership property and the
individual property in such proportions as the court shall determine.
f The net proceeds of the partnership property shall be appropriated
to the payment of the partnership debts, and the net proceeds of the indi-
vidual estate of each partner to the payment of his individual debts. Should
any surplus remain of the property of any partner after paying his indi-
vidual debts, such surplus shall be added to the partnership assets and be
applied to the payment of the partnership debts. Should any surplus of
the partnership property remain after paying the partnership debts, such
surplus shall be added to the assets of the individual partners in the pro-
portion of their respective interests in the partnership.
g The court may permit the proof of the claim of the partnership estate
against the individual estates, and vice versa, and may marshal the assets
of the partnership estate and individual estates so as to prevent preferences
and secure the equitable distribution of the property of the several estates.
h In the event of one or more but not all of the members of a partner-
ship being adjudged bankrupt, the partnership property shall not be admin-
istered in bankruptcy, unless by consent of the partner or partners not
adjudged bankrupt; but such partner or partners not adjudged bankrupt
shall settle the partnership business as expeditiously as its nature will
permit, and account for the interest of the partner or partners adjudged
bankrupt.
§ 6. Exemptions of Bankrupts. — a This Act shall not affect the allow-
ance to bankrupts of the exemptions which are prescribed by the State laws
in force at the time of the filing of the petition in the State wherein they
have had their domicile for the six months or the greater portion thereof
immediately preceding the filing of the petition.
§ 7. Duties op Bankrupts. — a The bankrupt shall (1) attend the first
meeting of his creditors, if directed by the court or a judge thereof to do
so, and the hearing upon his application for a discharge, if filed; (2)
comply with all lawful orders of the court; (3) examine the correctness of
all proofs of claims filed against his, estate; (4) execute and deliver such
papers as shall be ordered by the court; (5) execute to his trustee transfers
of all his property in foreign countries; (6) immediately inform his trustee
The amendment of 1^03^ ad^edtt^a tlon shall not release its oflacers, di-
word "mininpr" aft,pr "ppMiabing'^ln rectors, or stockholders, as such, from
the'ttrt-TST'ciassesof corporations sub- any liability under the laws of a State
Ject to involuntary bankruptcy under or Territory or of the United States."
8 4b, and added the following provi- The other changes were made by
sion : "The bankruptcy of a corpora- the amendment of 1910.
BANKRUPTCY ACT OF 1898 727
of any attempt, by his creditors, or other persons, to evade the provisions of
this Act, coming to his knowledge; (7) in case of any person having to his
knowledge proved a false claim against his estate, disclose that fact imme-
diately to his trustee; (8) prepare, make oath to, and file in court within
ten days, unless further time is granted, after the adjudication, if an invol-
untary bankrupt, and with the petition if a voluntary bankrupt, a schedule
of his property, showing the amount and kind of property, the location
thereof, its money value in detail, and a list of his creditors, showing their
residences, if known, if unknown, that fact to be stated, the amounts due
each of them, the consideration thereof, the security held by them, if any,
and a claim for such exemptions as he may be entitled to, all in triplicate,
one copy of each for the clerk, one for the referee, and one for the trustee;
and (9) when present at the first meeting of his creditors, and at such other
times as the court shall order, submit to an examination concerning the con-
ducting of his business, the cause of his bankruptcy, his dealings with his
creditors and other persons, the amount, kind, and whereabouts of his
property, and, in addition, all matters which may affect the adnjfinistration
and settlement of his estate ; but no testimony given by him shatX be offered
in evidence against him in any criminal proceeding.
Provided, however, That he shall not be required to attend a meeting of
his creditors, or at or for an examination at a place more than one hundred
and fifty miles distant from his home or principal place of business, or to
examine claims except when presented to him, unless ordered by the court,
or a judge thereof, for cause shown, and the bankrupt shall be paid his
actual expenses from the estate when examined or required to attend at any
place other than the city, town, or village of his residence.
§ 8. Death or Insanity of Bankrupts. — a The death or insanity of a
bankrupt shall not abate the proceedings, but the same shall be conducted
and concluded in the same manner, so far as possible, as though he had not
died or become insane: Provided, That in case of death the widow and chil-
dren shallbe entitled to all rights of dower and allowance fixed by the laws
of the State of the bankrupt 's residence.
§ 9. Protection and Detention op Bankrupts. — a A bankrupt shall be
exempt from arrest upon civil process except in the following cases: (1)
When issued from a court of bankruptcy for contempt or disobedience of its
lawful orders; (2) when issued from a State court having jurisdiction, and
served within such State, upon a debt or claim from which his discharge in
bankruptcy would not be a release, and in such case he shall be exempt from
such arrest when in attendance upon a court of bankruptcy or engaged in
the performance of a duty imposed by this Act.
b The judge may, at any time after the filing of a petition by or against
a person, and before the expiration of one month after the qualification of
the trustee, upon satisfactory proof by the affidavits of at least two persons
that such bankrupt is about to leave the district in which he resides or has
his principal place of business to avoid examination, and that his departure
will defeat the proceedings in bankruptcy, issue a warrant to the marshal,
directing him to bring such bankrupt forthwith before the court for exami-
nation. If upon hearing the evidence of the parties it shall appear to the
court or a judge thereof that the allegations are true and that it is necessary,
he shall order such marshal to keep such bankrupt in custody not exceeding
ten days, but not imprison him, until he shall be examined and released or
728 BANKRUPTCY ACT OF 1898
give bail conditioned for his appearance for examination, from time to time,
not exceeding in all ten days, as required by the court, and for his obedience
to all lawful orders made in reference thereto.
§ 10. Extradition of Bankrupts. — a Whenever a warrant for the appre-
hension of a bankrupt shall have been issued, and he shall have been found
within the jurisdiction of a court other than the one issuing the warrant,
he may be extradited in the same manner in which persons under indictment
are now extradited from one district within which a district court has juris-
diction to another.
§ 11. Suits By and Against Bankrupts. — a A suit which is founded
upon a claim from which a discharge would be a release, and which is pend-
ing against a person at the time of the filing of a petition against him, shall
be stayed until after an adjudication or the dismissal of the petition ; if such
person is adjudged a bankrupt, such action may be further stayed until
twelve months after the date of such adjudication, or, if within that time
such person applies for a discharge, then until the question of such discharge
is determined.
b The court may order the trustee to enter his appearance and defend
any pending suit against the bankrupt.
c A trustee may, with the approval of the court, be permitted to prosecute
as trustee any suit commenced by the bankrupt prior to the adjudication,
with like force and effect as though it had been commenced by him,
d Suits shall not be brought by or against a trustee of a bankrupt estate
subsequent to two years after the estate has been closed.
§ 12. Compositions, When Confirmed. — a A bankrupt may offer, either
before or after adjudication, terms of composition to his creditors after,
but not before, he has been examined in open court or at a meeting of his
creditors, and has filed in court the schedule of his property, and the list of
his creditors required to be filed by bankrupts. In compositions "before adju-
dication the banlcrupt shall file the required schedules, and thereupon the
court shall call a meeting of creditors for the allowance of claims, examina-
tion of the banlcrupt, and preservation or conduct of estates, at which meet-
ing the judge or referee shall preside; and action upon the petition for
adjudicatiom shall be delayed until it shall be determined whether such
composition shall be confirmed.^
b An application for the confirmation of a composition may be filed in
the court of bankruptcy after, but not before, it has been accepted in writ-
ing by a majority in number of all creditors whose claims have been allowed,
which_mimber must represent a majority in amount of such claims, and the
consideration to be paid by the bankrupt to his creditors, and the money
necessary to pay all debts which have priority and the cost of the proceedings,
have been deposited in such place as shall be designated by and subject to
the order of the judge.
c A date and place, with reference to the convenience of the parties
in interest, shall be fixed for the hearing upon each application for the con-
firmation of a composition, and such objections as may be made to its
confirmation.
d The judge shall confirm a composition if satisfied that (1) it is for the
6 — The words In Italics were added
by the amendment of 1910.
BANKRUPTCY ACT OF 1898 729
best interests of the creditors; (2) the bankrupt has not been guilty of any
of the acts or failed to perform any of the duties which would be a bar to
his discharge; and (3) the offer and its acceptance are in good faith and
have not been made or procured except as herein provided, or by any means,
promises, or acts herein forbidden.
e Upon the confirmation of a composition, the consideration shall be
distributed as the judge shall direct, and the case dismissed. Whenever a
composition is not confirmed, the estate shall be administered in bankruptcy
as herein pro\aded.
§ 13. Compositions, When Set Aside. — a The judge may, upon the
appUeation ^of parties in interest filed at any time within six months after
a composition has been confirmed, set the same aside and reinstate the case
if it shall be made to appear upon a trial that fraud was practiced in the
procuring of such composition, and that the knowledge thereof has come to
the petitioners since the confirmation of such composition.
§ 14. Discharge, When Granted. — a Any person may, after the expira-
tion of one month and within the next twelve months subsequent to being
adjudged a bankrupt, file an application for a discharge in the court of
bankruptcy in which the proceedings are pending; if it shall be made to
appear to the judge that the bankrupt was unavoidably prevented from filing
it within such time, it may be filed within but not after the expiration of
the next six months.
b The judge shall hear the application for a discharge and such proofs
and pleas as may be made in opposition thereto by the trustee or other
parties in interest, at such time as will give the trustee or parties in
interest a reasonable opportunity to be fully heard, and investigate the
merits of the application and discharge the applicant unless he has (1)
committed an offense punishable by imprisonment as herein provided; or
(2) with intent to conceal his financial condition, destroyed, concealed,
or failed to keep books of account or records from which sv,ch condition
might be ascertained; or (3) obtained money or property on credit upoii a
materially false statement in writing, made by him to any person or his rep-
resentative for the purpose of obtaining credit from such person; or (4) at any
time subsequent to the -first day of the four months immediately preceding
the iiling of the petition transferred, removed, destroyed, or concealed, or
permitted to be removed, destroyed, or concealed, any of his property, with
intent to hinder, delay, or defraud his creditors; or (5) in voluntary proceed-
ings been granted a discha/rge in bankruptcy within six years; or (6) in the
course of the proceedings im, bankruptcy refused to obey any lawful order of,
or to answer any material question approved by the court: Provided, That
a trustee shall not interpose objections to a bankrupt's discharge until he
shall be authorised so to do at a meeting of creditors called for that purposed
7 — ■§ 14b originally read as follows : mitted an offense punishable by im-
"b The Judge shall hear the applica- prisonment as herein provided ; or
tlon for a discharge, and such proofs (2) with fraudulent intent to conceal
and pleas as may be made in opposi- his true financial condition and in
tlon thereto by parties in interest, at contemplation of bankruptcy, de-
such time as will give parties in in- stroyed, concealed, or failed to keep
terest a reasonable opportunity to be books of account or records from
fully heard, and investigate the mer- which his true condition might be
its of the application and discharge ascertained."
the applicant unless he has (1) com- The amendment of 1903 changed It
730 BANKRUPTCY ACT OF 1898
e The confirmation of a composition shall discharge the bankrupt from
hia debts, other than those agreed to be paid by the terms of the composition
and those not affected by a discharge.
§ 15. Discharge, When Revoked. — a The judge may, upon the appli-
cation of parties in interest who have not been guilty of undue laches, filed
at any time within one year after a discharge shall have been granted, revoke
it upon a trial if it shall be made to appear that it was obtained through the
fraud of the bankrupt, and that the knowledge of the fraud has come to the
petitioners since the granting of the discharge, and that the actual facts
did not warrant the discharge.
§ 16. Co-Debtors op Bankrupts. — a The liability of a person who is a
co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall
not be altered by the discharge of such bankrupt.
§ 17. Debts Not Affected by a Discharge. — a A discharge in bank-
ruptcy shall release a bankrupt from all of his provable debts, except such
as (1) are due as a tax levied by the United States, the State, county, dis-
trict, or municipality in which he resides; (2) are liabilities for obtaining
property by false pretenses or false representations, or for willful and
malicious injuries to the person or property of another, or for alimony due
or to become due, or for maintenance or support of wife or child, or fo^
seduction of an unmarried femMe, or for criminal conversation; (3) have
not been duly scheduled in time for proof and allowance, with the name of
the creditor if known to the bankrupt, unless such creditor had notice or
actual knowledge of the proceedings in bankruptcy; or (4) were created
by his fraud, embezzlement, misappropriation, or defalcation while acting
as an officer or in any fiducigjy capaeity.s ~ ^ ^ ^ / t 1 fi^^(MxU. ^
t(rread as follows: ^T|)ft judge shall years; 'or (^)rin tne/ course of the
hear the application for a discharge, proceedings in bankruptcy refused to
and such proofs and pleas as may be obey any lawful order of or to answer
made in opposition thereto by parties any material question approved by the
in interest, at such time as will give court."
parties in interest a reasonable op- The other changes were made by the
portunlty to be fully heard, and in- amendment of 1910.
vestlgate the merits of the applica- 8 — § 17 originally read as follows :
tlon and discharge the applicant un- "A discharge in bankruptcy shall re-
less he has (1) committed an of- lease a bankrupt from all of his prov-
fense punishable by imprisonment as able debts, except such as (1) are
herein provided ; or (2) with Intent due as a tax levied by the United
to conceal his financial condition, de- States, the State, county, district,
stroyed, concealed, or failed to keep or municipality in which he resides ;
books of account or records from which (2) are Judgments in actions for
such condition might be ascertained ; frauds, or obtaining property by false
or (3) obtained property on credit pretenses or false representations, or
from any person upon a materially for willful and malicious injuries to
false statement in writing made to the person or property of another ;
such person for the purpose of obtain- (3) have not been duly scheduled in
ing such property on credit ; or (4) at time for proof and allowance, with the
any time subsequent to the first day name of the creditor if known to the
of the four months immediately pre- bankrupt, unless such creditor had no-
ceding the filing of the petition trans- tice or actual knowledge of the pre-
ferred, removed, destroyed, or con- ceedlngs in bankruptcy; or (4) were
cealed, or permitted to be removed, created by his fraud, embezzlement,
destroyed, or concealed any of his misappropriation, or defalcation while
property with Intent to hinder, delay, acting as an oflJcer or in any fiduciary
or defraud his creditors; or (5) in capacity."
voluntary proceedings been granted a The changes were made by the
discharge In bankruptcy within six amendment of 1903.
BANKRUPTCY ACT OF 1898 731
CHAPTER IV
COURTS AND PEOCEDUBE THEREIN
§ 18. Process, Pleadings, and Adjudications. — a Tlpon the filing of a
petition for involuntary bankruptcy, service thereof, with a writ of sub-
poena, shall be made upon the person therein named as defendant in the
same manner that service of such process is now had upon the commence-
ment of a suit in equity in the courts of the United States, except that it
shall bp returnable within fifteen days, unless the judge shall for cause fix
a lonjgef time; but in case personal service can not be made, then notice
shall be given by publication in the same manner and for the same time aa
provided by law for notice by publication in suits to enforce a legal or equit-
able lien in coti/rts of the United States, except that, unless the judge shall
otherwise direct, the order shall be publisbed not more than once a week
for two consecutive weelcs, and the return day shall be ten days after the
last publication unless the judge shall for cause fix a longer iime.^
b The bankrupt, or any creditor, may appear and plead to the petition
withia five days after the return day, or within such further time as the
court may allow, lo
c AU pleadings setting up matters of fact shall be verified under oath.
d If the bankrupt, or any of his creditors, shall appear, within the time
limited, and controvert the facts alleged in the petition, the judge shall
determine, as soon as may be, the issues presented by the pleadings, without
the intervention of a jury, except in cases where a jury trial is given by
this Act, and makes the adjudication or dismiss the petition.
e If on the last day within which pleadings may be filed none are filed
by the bankrupt or any of his creditors, the judge shall on the next day,
if present, or as soon thereafter as practicable, make the adjudication or
dismiss the petition.
f If the judge is absent from the district, or the division of the district
in which the petition is pending, on the next day after the last day on which
pleadings may be filed, and none have been filed by the bankrupt or any
of his creditors, the clerk shall forthwith refer the case to the referee.
g Upon the filing of a voluntary petition the judge shall hear the peti-
tion and make the adjudication or dismiss the petition. If the judge is
absent from the district, or the division of the district in which the petitioa
is filed at the time of the filing, the clerk shall forthwith refer the case to
the referee.
S 19. Jury Trials. — a A person against whom an involuntary petition
has been filed shall be entitled to have a trial by jury, in respect to the ques-
9 — § 18a originally read as follows : time ; but In case personal service can
"Upon the filing of a petition for not be made, then notice shall be
Involuntary bankruptcy, service there- given by publication in the same man-
of, with a writ of subpoena, shall be ner and for the same time as provided
made upon the person therein named by law for notice by publication in
as defendant in the same manner that suits in equity in courts of the United
service of such process is now had States."
upon the commencement of a suit in The change was made by the amend-
equity In the courts of the United ment of 1903.
States, except that it shall be return- 10 — Before the amendment of 1903,
able within fifteen days, unless the the time to plead was ten days after
judge shall for cause fix a longer the return day, instead of five.
732 BANKRUPTCY ACT OF 1898
tion of his insolvency, except as herein otherwise provided, and any act of
bankruptcy alleged in such petition to have been committed, upon filing a
written application therefor at or before the time within which an answer
may be filed. If sujch application is not filed within such time, a trial by
jury shall be deemed to have been waived.
b If a jury is not in attendance upon the court, one may be specially
summoned for the trial, or the case may be postponed, or, if the case is
pending in one of the district courts within the jurisdiction of a circuit
court of the United States, it may be certified for trial to the circuit court
sitting at the same place, or by consent of parties when sitting at any other
place in the same district, if such circuit court has or is to have a jury
first in attendance.
c The right to submit matters in controversy, or an alleged offense
under this Act, to a jury shall be determined and enjoyed, except as provided
by this Act, according to the United States laws now in force or such as
may be hereafter enacted in relation to trials by jury.
§ 20. Oaths, Affirmations. — a Oaths required by this Act, except upon
hearings in court, may be administered by (1) referees; (2) officers author-
ized to administer oaths in proceedings before the courts of the United
States, or under the laws of the State where the same are to be taken; and
(3) diplomatic or consular officers of the United States in any foreign
country.
b Any person conscientiously opposed to taking an oath may, in lieu
thereof, affirm. Any person who shall affirm falsely shall be punished as for
the making of a false oath.
§ 21. Evidence. — a A court of bankruptcy may, upon application of any
officer, bankrupt, or creditor, by order require any designated person, in-
cluding the bankrupt and his wife, to appear in court or before a referee
or the judge of any State court, to be examined concerning the acts, con-
duct, or property of a bankrupt whose estate is in process of administration
under this Act.
Provided, That the wife may he examined only touching business tran-
sacted by her or to which she is a party, and to determine the fact whether
she has transacted or teen a party to any business of the banTcruptA^
b The right to take depositions in proceedings under this Act shall be
determined and enjoyed according to the United States laws now in force,
or such as may be hereafter enacted relating to the taking of depositions,
except as herein provided.
c Notice of the taking of depositions shall be filed with the referee in
every case. When depositions are to be taken in opposition to the allowance
of a claim notice shall also be served upon the claimant, and when in oppo-
sition to a discharge notice shall also be served upon the bankrupt.
d Certified copies of proceedings before a referee, or of papers, when
issued by the clerk or referee, shall be admitted as evidence with like force
11 — § 21a originally read as fol- In court or before a referee or the
lows : "A court of bankruptcy may, judge of any State court, to be ex-
upon application of any oflBcer, bank- amlned concerning the acts, conduct,
rupt, or creditor, by order require or property of a bankrupt whose estate
any designated person, including the is in process of administration under
bankrupt, who is a competent witness this Act."
under the laws of the State In which The change was made by the amend-
the proceedings are pending, to appear ment of 1903.
BANKRUPTCY ACT OF 1898 733
and effect as certified copies of the records of district courts of the United
States are now or may hereafter be admitted as evidence.
6 A certified copy of the order approving the bond of a trustee shall
constitute conclusive evidence of the vesting in him of the title to the
property of the bankrupt, and if recorded shall impart the same notice that
a deed from the bankrupt to the trustee if recorded would have imparted
had not bankruptcy proceedings intervened.
f A certified copy of an order confirming or setting aside a composition,
or granting or setting aside a discharge, not revoked, shall be evidence of
the jurisdiction of the court, the regularity of the proceedings, and of the
fact that the order was made.
g A certified copy of an order confirming a composition shall constitute
evidence of the revesting of the title of his property in the bankrupt, and
if recorded shall impart the same notice that a deed from the trustee to the
bankrupt if recorded would impart.
§ 22. Referekce of Cases after Adjudication. — a After a person has
been adjudged a bankrupt the judge may cause the trustee to proceed with
the administration of the estate, or refer it (1) generally to the referee or
specially with only limited authority to act in the premises or to consider
and report upon specified issues; or (2) to any referee within the territorial
jurisdiction of the court, if the convenience of parties in interest will be
served thereby, or for cause, or if the bankrupt does not do business, reside,
or have his domicile in the district.
b The judge may, at any time, for the convenience of parties or for
cause, transfer a case from one referee to another.
§ 23. Jurisdiction of United States and State Courts. — a The United
States circuit courts shall have jurisdiction of all controversies at law and
in equity, as distinguished from proceedings in bankruptcy, between trustees
as such and adverse claimants concerning the property acquired or claimed
by the trustees, in the same manner and to the same extent only as though
bankruptcy proceedings had not been instituted and such controversies had
been between the bankrupts and such adverse claimants.
b Suits by the trustee shall only be brought or prosecuted in the eoorts
where the bankrupt, whose estate is being administered by such trustee,
might have brought or prosecuted them if proceedings in bankruptcy had
not been instituted, unless by consent of the proposed defendant, except
suits for the recovery of property under section sixty, subdivision t ; section
sixty-seven, subdivision e ; and section seventy, subdivision e.12
c The United States circuit courts shall have concurrent jurisdiction
with the courts of bankruptcy, within their respective territorial limits, of
the offenses enumerated in this Act.
§ 24. Jurisdiction of Appellate Courts. — a The Supreme Court of
the United States, the circuit courts of appeals of the United States, and
12 — § 23b originally read as fol- The amendment of 1903 added the
lows : "Suits by the trustee shall only words, "except suits for the recovery
be brought or prosecuted in the courts of property under section sixty, sub-
where the bankrupt, whose estate is division b, and section sixty-seven,
being administered by such trustee, subdivision e."
might have brought or prosecuted The amendment of 1910 added also
them If proceedings in bankruptcy had the words "and section seventy, sab-
not been instituted, unless by consent division e."
of the proposed defendant."
734 BANKRUPTCY ACT OF 1898
the supreme courts of the Territories, in Tacation in chambers and during
their respective terms, as now or as they may be hereafter held, are hereby
invested with appellate jurisdiction of controversies arising in bankruptcy
proceedings from the courts of bankruptcy from which they have appellate
jurisdiction in other cases. The Supreme Court of the United States shall
exercise a like jurisdiction from the courts of bankruptcy not within any
organized circuit of the United States and from the supreme court of the Dis-
trict of Columbia.
b The several circuit courts of appeals shall have jurisdiction in equity,
either interlocutory or final, to superintend and revise in matter of law the
proceedings of the several inferior courts of bankruptcy within their juris-
diction. Such power shall be exercised on due notice and petition by any
party aggrieved.
§ 25. Appeals and Writs of Error. — a That appeals, as in equity cases
may be taken in bankruptcy proceedings from the courts of bankruptcy to
the circuit court of appeals of the United States, and to the supreme court
of the Territories, in the following cases, to wit, (1) from a judgment
adjudging or refusing to adjudge the defendant a bankrupt; (2) from a
judgment granting or denying a discharge; and (3) from a judgment allow-
ing or rejecting a debt or claim of five hundred dollars or over. Such appeal
shall be taken within ten days after the judgment appealed from has been
rendered, and may be heard and determined by the appellate court in term
or vacation, as the case may be.
b From any final decision of a court of appeals, allowing or rejecting a
claim under this Act, an appeal may be had under such rules and within such
time as may be prescribed by the Supreme Court of the United States, in the
following cases and no other :
1. Where the amount in controversy exceeds the sum of two thousand
dollars, and the question involved is one which might have been taken on
appeal or writ of error from the highest court of a State to the Supreme
Court of the United States; or
2. Where some Justice of the Supreme Court of the United States shall
certify that in his opinion the determination of the question or questions
involved in the allowance or rejection of such claim is essential to a uniform
construction of this Act throughout the United States.
e Trustees shall not be required to give bond when they take appeals or
sue out writs of error.
d Controversies may be certified to the Supreme Court of the United
States from other courts of the United States, and the former court may
exercise jurisdiction thereof and issue writs of certiorari pursuant to the
provisions of the United States laws now in force or such as may be here-
after enacted.
§ 26. Arbitration of Controversies. — a The trustee may, pursuant to
the direction of the court, submit to arbitration any controversy arising in
the settlement of the estate.
b Three arbitrators shall be chosen by mutual consent, or one by the
trustee, one by the other party to the controversy, and the third by the two
so chosen, or if they fail to agree in five days after their appointment the
court shall appoint the third arbitrator.
c The written finding of the arbitrators, or a majority of them, ai to
BANKRUPTCY ACT OF 1898 735
the issues presented, may be filed in court and shall have Uke force and
effect as the verdict of a jury.
§ 27. Compromises. — a The trustee may, with the approval of the court,
compromise any controversy arising in the administration of the estate upon
such terms as he may deem for the best interests of the estate.
§ 28. Designation of Newspapeks. — a Courts of bankruptcy shall by
order designate a newspaper published within their respective territorial
districts, and in the county in which the bankrupt resides or the major part
of his property is situated, in which notices required to be published by
this Act and orders which the court may direct to be published shall be
inserted. Any court may in a particular case, for the convenience of parties
in interest, designate some additional newspaper in which notices and orders
in such case shall be published.
§ 29. Offenses. — a A person shall be punished, by imprisonment for a
period not to exceed five years, upon conviction of the offense of having
knowingly and fraudulently appropriated to his own use, embezzled, spent,
or unlawfully transferred any property or secreted or destroyed any docu-
ment belonging to a bankrupt estate which came into his charge as trustee.
b A person shall be punished, by imprisonment for a period not to
exceed two years, upon conviction of the offense of having knowingly and
fraudulently (1) concealed while a bankrupt, or after his discharge, from
his trustee any of the property belonging to his estate in bankruptcy; or
(2) made a false oath or account in, or in relation to any proceeding in
bankruptcy; (3) presented under oath any false claim for proof against
the estate of a bankrupt, or used any such claim in composition personally or
by agent, proxy, or attorney, or as agent, proxy, or attorney; or (4) re-
ceived any material amount of property from a bankrupt after the filing of
the petition, with intent to defeat this Act; or (5) extorted or attempted to
extort any money or property from any person as a consideration for acting
or forbearing to act in bankruptcy proceedings.
c A person shall be punished by fine, not to exceed five hundred dollars,
and forfeit his office, and the same shall thereupon become vacant, upon
conviction of the offense of having knowingly (1) acted as a referee in a
case in which he is directly or indirectly interested; or (2) purchased, while
a referee, directly or indirectly, any property of the estate in bankruptcy
of which he is referee; or (3) refused, while a referee or trustee, to permit
a reasonable opportunity for the inspection of the accounts relating to the
affairs of, and the papers and records of, estates in his charge by parties
in interest when directed by the court so to do.
d A person shall not be prosecuted for any offense arising under this Act
unless the indictment is found or the information is filed in court within one
year after the commission of the offense.
§ 30. Rules, Forms, and Orders. — a All necessary rules, forms, and
orders as to procedure and for carrying this Act into force and effect shall
be prescribed, and may be amended from time to time, by the Supreme Court
of the United States.
§ 31. Computation of Time. — a Whenever time is enumerated by days in
this Act, or in any proceeding in bankruptcy, the number of days shall be
computed by excluding the first and including the last, unless the last fall on
a Sunday or holiday, in which event the day last included shall be the next
day thereafter which is not a Sunday or a legal holiday.
736 BANKRUPTCY ACT OF 1898
§ 32. Transfer of Cases. — a In the event petitions are filed against
the same person, or against different members of a partnership, in different
courts of bankruptcy each of which has jurisdiction, the cases shall be
transferred, by order of the courts, relinquishing jurisdiction, to and be
consolidated by the one of such courts which can proceed with the same for
the greatest convenience of parties in interest.
CHAPTEE V
OFFICERS, THEIR DUTIES AND CX)MPENSATION
§ 33. Creation of Two Offices. — a The offices of referee and trustee
are hereby created.
§ 34. Appointment, Eemoval, and Districts of Eeperees. — a Courts
of bankruptcy shall, within the territorial limits of which they respectively
have jurisdiction, (1) appoint referees, each for a term of two years, and may,
in their discretion, remove them because their services are not needed or
for other cause; and (2) designate, and from time to time change, the limits
of the districts of referees, so that each county, where the services of a ref-
eree are needed, may constitute at least one district.
§ 35, QuAijFicATiONs OF Eeferees. — a Individuals shall not be eligible
to appointment as referees unless they are respectively (1) competent to
perform the duties of that office; (2) not holding any office of profit or
emolument under the laws of the United States or of any State other than
commissioners of deeds, justices of the peace, masters in chancery, or notaries
public; (3) not related by consanguinity or affinity, within the third degree
as determined by the common law, to any of the judges of the courts of
bankruptcy or circuit courts of the United States, or of the justices or judges
of the appellate courts of the districts wherein they may be appointed;
and (4) residents of, or have their offices in, the territorial districts for
which they are to be appointed.
§ 36. Oaths of Office of Eeferees. — a Eeferees shall take the same
oath of office as that prescribed for judges of United States courts.
§ 37. Number of Eeeerees. — a Such number of referees shall be ap-
pointed as may be necessary to assist in expeditiously transacting the bank-
ruptcy business pending in the various courts of bankruptcy.
§ 38. Jurisdiction of Eeferees. — a Eeferees respectively are hereby
invested, subject always to a review by the judge, within the limits of their
districts as established from time to time, with jurisdiction to (1) consider
all petitions referred to them by the clerks and make the adjudications or
dismiss the petitions; (2) exercise the powers vested in courts of bankruptcy
for the administering of oaths to and the examination of persons as witnesses
and for requiring the production of documents in proceedings before them,
except the power of commitment; (3) exercise the powers of the judge for
the taking possession and releasing of the property of the bankrupt in the
event of the issuance by the clerk of a certificate showing the absence of a
judge from the judicial district, or the division of the district, or his sick-
ness, or inability to act; (4) perform such part of the duties, except as to
questions arising out of the applications of bankrupts for compositions or
discharges, as are by this Act conferred on courts of bankruptcy and as shall
be prescribed by rules or orders of the courts of bankruptcy of their re-
spective districts, except as herein otherwise provided; and (5) upon the
BANKRUPTCY ACT OF 1898 737
application of the trustee during the examination of the bankrupts, or other
proceedings, authorise the employment of stenographers at the expense of the
estates at a compensation not to exceed ten cents per folio for reporting and
transcribing the proceedings.
§39. Duties of Eeferees. — a Eeferees shall (1) declare dividends and
prepare and deliver to trustee dividend sheets showing the dividends declared
and to whom payable; (2) examine all schedules of property and lists of
creditors filed by bankrupts and cause such as are incomplete or defective
to be amended; (3) furnish such information concerning the estates in proc-
ess of administration before them as may be requested by the parties in
interest; (4) give notice to creditors as herein provided; (5) make up records
embodying the evidence, or the substance thereof, as agreed upon by the par-
ties in all contested matters arising before them, whenever requested to
do so by either of the parties thereto, together with their findings therein,
and transmit them to the judges; (6) prepare and file the schedules of prop-
erty and lists of creditors required to be filed by the bankrupts, or cause
the same to be done, when the bankrupts fail, refuse, or neglect to do so;
(7) safely keep, perfect, and transmit to the clerks the records, herein
required to be kept by them, when the cases are concluded; (8) transmit
to the clerks such papers as may be on file before them whenever the same
are needed in any proceedings in courts, and in like manner secure the return
of such papers after they have been used, or, if it be impracticable to trans-
mit the original papers, transmit certified copies thereof by mail; (9) upon
application of any party in interest, preserve the evidence taken or the sub-
stance thereof as agreed upon by the parties before them when a stenog-
rapher is not in attendance; and (10) whenever their respective offices are
in the same cities or towns where the courts of bankruptcy convene, call upon
and receive from the clerks all papers filed in courts of bankruptcy which
have been referred to them.
b Eeferees shall not (1) act in cases in which they are directly or in-
directly interested; (2) practice as attorneys and counselors at law in any
bankruptcy proceedings; or (3) purchase, directly or indirectly, any property
of an estate in bankruptcy.
§ 40. Compensation of Eeferees. — a Eeferees shall receive as full com-
pensation for their services, payable after they are rendered, a fee of -fifteen
dollars deposited with the clerk at the time the petition is filed in each case,
except when a fee is not required from a voluntary bankrupt, and twenty-
five cents for every proof of claim filed for allowance, to be paid from the
estate, if any, as a part of the cost of administration, and from estates which
have been administered before them one per centum commission on all
moneys disbursed to creditors by the trustee, or one-half of one per centum
on the amount to be paid to creditors upon the confirmation of a compo-
sition, is
13 — § 40a originally read as fol- before them one per centum commis-
lows : "Referees shall receive as full sions on sums to be paid as dividends
compensation for their services, pay- and commissions, or one-half of one
able after they are rendered, a fee of per centum on the amount to be paid
ten dollars deposited with the clerk at to creditors upon the confirmation of
the time the petition is filed In each a composition."
case, except when a fee is not required The change was made by the amend-
from a voluntary bankrupt, and from ment of 1903.
estates which have been administered
H. & A. Bankruptcy — 47
738 BANKRUPTCY ACT OF 1898
b Whenever a case is transferred from one referee to another the judge
shall determine the proportion in which the fee and commissions therefor
shall be divided between the referees,
c In the event of the reference of a case being revoked before it is con-
cluded, and when the case is especially referred, the judge shall determine
what part of the fee and commissions shall be paid to the referee.
§ 41. Contempts before Eeferees. — a A person shall not, in proceedings
before a referee, (1) disobey or resist any lawful order, process, or writ;
(2) misbehave during a hearing or so near the place thereof as to obstruct
the same; (3) neglect to produce, after having been ordered to do so, any
pertinent document; or (4) refuse to appear after having been subpoenaed,
or, upon appearing, refuse to take the oath as a witness, or, after having
taken the oath, refuse to be examined according to law : Provided, That no
person shall be required to attend as a witness before a referee at a place
outside of the State of his residence, and more than one hundred miles from
such place of residence, and only in case his lawful mileage and fee for one
day 's attendance shall be first paid or tendered to him.
b The referee shall certify the facts to the judge, if any person shall
do any of the things forbidden in this section. The judge shall thereupon,
in a summary manner, hear the evidence as to the acts complained of, and,
if it is such as to warrant him in so doing, punish such person in the same
manner and to the same extent as for a contempt committed before the
court of bankruptcy, or commit such person upon the same conditions as if
the doing of the forbidden act had occurred with reference to the process of,
or in the presence of, the court.
§ 42. Records op Referees. — a The records of all proceedings in each
case before a referee shall be kept as nearly as may be in the same manner
as records are now kept in equity cases in circuit courts of the United
States.
b A record of the proceedings in each case shall be kept in a separate
book or books, and shall, together with the papers on file, constitute the rec-
ords of the case.
c The book or books containing a record of the proceedings shall, when
the case is concluded before the referee, be certified to by him, and, together
with such papers as are on file before him, be transmitted to the court of
bankruptcy and shall there remain as a part of the records of the court.
§ 43. Referee 's Absence or Disability. — a "Whenever the office of a
referee is vacant, or its occupant is absent or disqualified to act, the judge
may act, or may appoint another referee, or another referee holding an
appointment under the same court may, by order of the judge, temporarily
fill the vacancy.
§ 44. Appointment of Trustees. — a The creditors of a bankrupt estate
shall, at their first meeting after the adjudication or after a vacancy has
occurred in the office of trustee, or after an estate has been reopened, or
after a composition has been set aside or a discharge revoked, or if there
is a vacancy in the office of trustee, appoint one trustee or three trustees
of such estate. If the creditors do not appoint a trustee or trustees as
herein provided, the court shall do so.
§45. Qualifications of Trustees. — a Trustees may be (1) individuals
who are respectively competent to perform the duties of that office, and
reside or have an office in the judicial district within which thef are ap-
BANKRUPTCY ACT OF 1898 739
pointed, or (2) corporations autliorized by their charters or by law to act
in such capacity and having an office in the judicial district within which
they are appointed.
§ 46. Death oe Eemoval op Trustees. — a The death or removal of a
trustee shall not abate any suit or proceeding which he is prosecuting or
defending at the time of his death or removal, but the same may be pro-
ceeded with or defended by his joint trustee or successor in the same manner
as though the same had been commenced or was being defended by such
joint trustee alone or by such successor.
§ 47. Duties of Trustees. — a Trustees shall respectively (1) account for
and pay over to the estates under their control aU interest received by them
upon property of such estates; (2) collect and reduce to money the property
of the estates for which they are trustees, under the direction of the court,
and close up the estate as expeditiously as is compatible with the best
interests of the parties in interest; and such trustees, as to all property in
the custody or coming into the custody of the bankruptcy court, shall be
deemed vested with all the rights, remedies, and powers of a creditor holding
a lien by legal or equitable proceedings thereon; and also, as to all property
not in the custody of the bankruptcy court, shall be deemed vested with all
the rights, remedies, and powers of a judgment creditor holding an execu-
tion duly returned unsatisfied;^'^ (3) deposit all money received by them
in one of the designated depositories; (4) disburse money only by check or
draft on the depositories in which it has been deposited; (5) furnish such
information concerning the estates of which they are trustees and their
administration as may be requested by parties in interest; (6) keep regular
accounts showing all amounts received and from what sources and all
amounts expended and on what accounts; (7) lay before the final meeting
of the creditors detailed statements of the administration of the estates;
(8) make final reports and file final accounts with the courts fifteen days
before the days fixed for the final meetings of the creditors; (9) pay divi-
dends within ten days after they are declared by the referees ; ( 10 ) report to
the courts, in writing, the condition of the estates and the amounts of money
on hand, and such other details as may be required by the courts, within
the first month after their appointment and every two months thereafter,
unless otherwise ordered by the, courts; and (11) set apart the bankrupt's
exemptions and report the items and estimated value thereof to the court
as soon as practicable after their appointment.
b Whenever three trustees have been appointed for an estate, the con-
currence of at least two of them shall be necessary to the validity of their
every act concerning the administration of the estate.
c The trustee shall, within thirty days after the adjudication, file a
certified copy of the decree of adjudication in the office where conveyances
of real estate are recorded in every county where the bankrupt oums real
estate not exempt from execution, and pay the fee for such filing, and he
shall receive a compensation of fifty cents for each copy so filed, which,
together with the filing fee, shall be paid out of the estate of the bankrupt
as a part of the costs and disbursements of the proceedings.^^
14 — The Italicized words in S 47a 15 — S 47c was added by the amend-
(2) were added by the amendment of ment of 1903.
1910.
740 BANKRUPTCY ACT OF 1898
§ 48. Compensation op Trustees, ^eceiveks and Makshals, — a
Trustees shall receive for their services, payable after they are rendered, a
fee of five dollars deposited with the clerk at the time the petition is filed in
each case, except when a fee is not required from a voluntary bankrupt,
and stich commissions on all moneys disbursed or turned over to any person,
including lien holders, by them, as may be allowed by the courts, not to ex-
ceed six per centum an the first five hundred dolla/rs or less, four per
centum on moneys in excess of five hnindred dollars and less than fifteen
hundred dollars, two per centum on moneys in excess of fifteen hundred dol-
lars amd less than ten thousand dollars, and one per centum on moneys in
excess of ten thousand dollars. And in case of the confirmation of a com-
position after the trustee has qualified the court may allow him, as com-
pensation, not to exceed one-half of one per centum of the amownt to be paid
the creditors on such composition^^
b In the event of an estate being administered by three trustees instead
of one trustee or by successive trustees, the court shall apportion the fees
and commissions between them according to the services actually rendered,
80 that there shall not be paid to trustees for the administering of any
estate a greater amount than one trustee would be entitled to.
c The court may, in its discretion, withhold all compensation from any
trustee who has been removed for cause.
d Beceivers or marshals appointed pursuant to section two, subdivision
three, of this Act shall receive for their services, payable after they are
rendered, compensation by way of commissions upon the moneys disbursed or
turned over to any person, including lien holders, by them, and also upon the
moneys turned over by them or afterwards realized by the trustees from
property turned over in kind by them to the trustees, as the court may allow,
not to exceed six per centum on the first five hundred dollars or less, four
per centum on moneys iii excess of five hundred dollars and less than one
thousand five hundred dollars, two per centum on moneys in excess of one
thousand five hundred dollars and less than ten thousand dollars, and one
16 — § 48a originally read as fol- when a fee is not required from a
lows : "Trustees shall receive, as full voluntary bankrupt, and from estates
compensation for their services, pay- which they have administered such
able after they are rendered, a fee of commissions on all moneys disbursed
Ave dollars deposited with the clerk by them as may be allowed by the
at the time the petition is filed in each courts, not to exceed six per centum
case, except when a fee is not required on the first five hundred dollars or
from a voluntary bankrupt, and from less, four per centum on moneys in ex-
estates which they have administered, cess of five hundred dollars and less
such commissions on sums to be paid than fifteen hundred dollars, two per
as dividends and commissions as may centum on moneys in excess of fifteen
be allowed by the courts, not to ex- hundred dollars and less than ten
ceed three per centum on the first five thousand dollars, and one per centum
thousand dollars or less, two per on moneys in excess of ten thousand
centum on the second five thousand dollars. And in case of the conflrma
dollars or part thereof, and one per tion of a composition after th«»
centum on such sums in excess of ten trustee has qualified the court may
thousand dollars." allow him, as compensation, not to
,The amendment of 1903 changed it exceed one-half of one per centum
to read as follows : "Trustees shall of the amount to be paid the creditors
receive for their services, payable after on such composition."
they are rendered, a fee of five dollars The other changes were made by the
deposited with the clerk at the time amendment of 1910.
the petition is filed in each case, except
BANKRUPTCY ACT OF 1898 741
per centum on moneys in excess of ten thousand dollars: Provided, That
in case of the confirmation of a composition such commissions shall not exceed
one-half of one per centum of the amount to be paid creditors on such com-
positions: Provided further, That when the receiver or marshal acts as a
mere custodian and does not carry on the business of the bankrupt as pro-
vided in clause five of section two of this Act, he shall not receive nor be
allowed in any form or guise more than two per centum on the first thou-
sand dollars or less, and one-half of one per centum on all above one thousand
dollars on moneys disbursed by him or turned over by him to the trustee
and on moneys subsequently realized from property turned over by him in
kind to the trustee: Provided further, That before the allowance of com-
pensation notice of application therefor, specifying the amount asked, shall
be given to creditors in the manner indicated in section fifty-eight of this
ActAt
e Where the business is conducted by trustees, marshals, or receivers, as
provided in clause five of section two of this Act, the court may allow such
officers additionM,l compensation for such services by ivay of comvussums
upon the moneys disbursed or turned over to any person, including lien
holders, by them, and, in cases of receivers or marshals, also upon the moneys
turned over by them or afterwards realised by the trustees from property
turned over in kiiid by them to the trustees; such commisskms not to exceed
six per centum on the first five hundred dollars or less, four per centum on
moneys in excess of five hundred dollars and less than one thousand five
hundred dollars, two per centum on moneys in excess of one thousand five
hundred dollars and less than ten. thousand dollars, and one per centum on
moneys in excess of ten thousand dollars: Provided, That in case of the
confirmation of a composition such commissions shall not exceed one-half
of one per centum of the amount to be paid creditors on such composition:
Provided further, That before the allowance of compensation notice of
application therefor, specifying the amount asked, shall be given to creditors
in the manner indicated in section fifty-eight of this ActA»
§ 49. Accounts and Papers of Trustees. — a The accounts and papers
of trustees shall be open to the inspection of officers and all parties in
interest.
§ 50. Bonds of Referees and Trustees. — a Referees, before assuming
the duties of their offices, and within such time as the district courts of the
United States having jurisdiction shall prescribe, shall respectively qualify
by entering into bond to the United States in such sum as shall be fixed
by such courts, not to exceed five thousand dollars, with such sureties as
shall be approved by such courts, conditioned for the faithful performance
of their official duties.
b Trustees, before entering upon the performance of their official duties,
and within ten days after their appointment, or within such further time,
not to exceed five days, as the court may permit, shall respectively qualify
by entering into bond to the United States, with such sureties as shall be
approved by the courts, conditioned for the faithful performance of their
official duties.
c The creditors of a bankrupt estate, at their first meeting after the
17 — § 48d was added by the amend- 18 — § 48e was added by the amend-
ment of 1910. ment of 1910.
742 BANKRUPTCY ACT OF 1898
adjudication, or after a vacancy has occurred in the office of trustee, or
after an estate has been reopened, or after a composition has been set aside
or a discharge revoked, if there is a vacancy in the office of trustee, shall fix
the amount of the bond of the trustee; they may at any time increase the
amount of the bond. If the creditors do not fix the amount of the bond
of the trustee as herein provided the court shall do so.
d The court shall require evidence as to the actual value of the property
of sureties.
e There shall be at least two sureties upon each bond.
f The actual value of the property of the sureties, over and above their
liabilities and exemptions, on each bond shall equal at least the amount of
such bond.
g Corporations organized for the purpose of becoming sureties upon
bonds, or authorized by law to do so, may be accepted as sureties upon the
bonds of referees and trustees whenever the courts are satisfied that the
rights of all parties in interest will be thereby amply protected.
h Bonds of referees, trustees, and designated depositories shall be filed
of record in the oflSce of the clerk of the court and may be sued upon in the
name of the United States for the use of any person injured by a breach
0^ these conditions.
i Trustees shall not be liable, personally or on their bonds, to the United
States, for any penalties or forfeitures incurred by the bankrupts under
this act, of whose estates they are respectively trustees.
j Joint trustees may give joint or several bonds.
k If any referee or trustee shall fail to give bond, as herein provided
and within the time limited, he shall be deemed to have declined his appoint-
ment, and such failure shall create a vacancy in his office.
1 Suits upon referees' bonds shall not be brought subsequent to two
years after the alleged breach of the bond.
m Suits upon trustees' bonds shall not be brought subsequent to two
years after the estate has been closed.
§ 51. Duties of Clerks. — a Clerks shall respectively (1) account for,
as for other fees received by them, the clerk's fee paid in each case and
such other fees as may be received for certified copies of records which may
be prepared for persons other than officers; (2) collect the fees of the
clerk, referee, and trustee in each case instituted before filing the petition,
except the petition of a proposed voluntary bankrupt which is accompanied
by an affidavit stating that the petitioner is without, and can not obtain,
the money with which to pay such fees; (3) deliver to the referees upon
application all papers which may be referred to them, or, if the offices of
such referees are not in the same cities or towns as the offices of such clerks,
transmit such papers by mail, and in like manner return papers which were
received from such referees after they have been used; (4) and within ten
days after each case has been closed pay to the referee, if the case was
referred, the fee collected for him, and to the trustee the fee collected for
him at the time of filing the petition.
§ 52. Compensation of Clerks and Marshals. — a Clerks shall respec-
tively receive as full compensation for their service to each estate, a filing
fee of ten dollars, except when a fee is not required from a voluntary bank-
rupt.
BANKRUPTCY ACT OF 1898 743
b Marshals shall respectively receive from the estate where an adjudi-
cation in bankruptcy is made, except as herein otherwise provided, for the
performance of their services in proceedings in bankruptcy, the same fees,
and account for them in the same way, as they are entitled to receive for
the performance of the same or similar services in other cases in accordance
with laws now in force, or such as may be hereafter enacted, fixing the com-
pensation of marshals.
§ 53. Duties of Attoeney-Genebal. — a The Attorney-General shall
annually lay before Congress statistical tables showing for the whole coun-
try, and by States, the number of cases during the year of voluntary and
involuntary bankruptcy; the amount of the property of the estates; the
dividends paid and the expenses of administering such estates; and such
other like information as he may deem important.
§ 54. Statistics op Bankruptcy Proceedings. — a Officers shall furnish
in writing and transmit by mail such information as is within their knowl-
edge, and as may be shown by the records and papers in their possession,
to the Attorney-General, for statistical purposes, within ten days after being
requested by him to do so.
CHAPTEB VI
CREDITORS
§ 55. Meetings of Creditors. — a The court shall cause the first meeting
of the creditors of a bankrupt to be held, not less than ten nor more than
thirty days after the adjudication, at the county seat of the county in
which the bankrupt has had his principal place of business, resided, or had
his domicile; or if that place would be manifestly inconvenient as a place
of meeting for the parties in interest, or if the bankrupt is one who does
not do business, reside, or have his domicile within the United States, the
court shall fix a place for the meeting which is the most convenient for par-
ties in interest. If such meeting should by any mischance not be held within
such time, the court shall fix the date, as soon as may be thereafter, when
it shall be held.
b At the first meeting of creditors the judge or referee shall preside,
and, before proceeding with the other business, may allow or disallow the
claims of creditors there presented, and may publicly examine the bankrupt
or cause him to be examined at the instance of any creditor.
e The creditors shall at each meeting take such steps as may be pertinent
and necessary for the promotion of the best interests of the estate and the
enforcement of this Act.
d A meeting of creditors, subsequent to the first one, may be held at
any time and place when all of the creditors who have secured the allowance
of their claims sign a written consent to hold a meeting at such time and
place.
e The court shall call a meeting of creditors whenever one-fourth or
more in number of those who have proven their claims shall file a written
request to that effect; if such request is signed by a majority of such cred-
itors, which number represents a majority in amount of such claims, and
contains a request for such meeting to be held at a designated place, the
court shall call such meeting at such place within thirty days after the date
of the filing of the request.
744 BANKRUPTCY ACT OP 1898
f Whenever the affairs of the estate are ready to be closed a final meet-
ing of creditors shall be ordered.
§ 56. Voters at Meetings of Creu)ITORS. — a Creditors shall pass upon
matters submitted to them at their meetings by a majority vote in number
and amount of claims of all creditors whose claims have been allowed and
are present, except as herein otherwise provided.
b Creditors holding claims which are secured or have priority shall not,
in respect to such claims, be entitled to vote at creditors' meetings, nor
shall such claims be counted in computing either the number of creditors
or the amount of their claims, unless the amounts of such claims exceed
the values of such securities or priorities, and then only for such excess.
§ 57. Proof and Allowance of Claims. — a Proof of claims shall con-
sist of a statement under oath, in writing, signed by a creditor setting
forth the claim, the consideration therefor, and whether any, and, if so
what, securities are held therefor, and whether any, and, if so what, pay-
ments have been made thereon, and that the sum claimed is justly owing
from the bankrupt to the creditor.
b Whenever a claim is founded upon an instrument of writing, such
instrument, unless lost or destroyed, shall be filed with the proof of claim.
If such instrument is lost or destroyed, a statement of such fact and of the
circumstances of such loss or destruction shall be filed under oath with the
claim. After the claim is allowed or disallowed, such instrument may be
withdrawn by permission of the court, upon leaving a copy thereof on
file with the claim.
c Claims after being proved may, for the purpose of allowance, be filed
by the claimants in the court where the proceedings are pending or before
the referee if the case has been referred.
d Claims which have been duly proved shall be allowed, upon receipt
by or upon presentation to the court, unless objection to their allowance
shall be made by parties in interest, or their consideration be continued
for cause by the court upon its own motion.
6 Claims of secured creditors and those who have priority may be
allowed to enable such creditors to participate in the proceedings at cred-
itors* meetings held prior to the determination of the value of their securi-
ties or priorities, but shall be allowed for such sums only as to the courts
seem to be owing over and above the value of their securities or priorities.
f Objections to claims shall be heard and determined as soon as the
convenience of the court and the best interests of the estates and the
claimants will permit.
g The claims of creditors who have received preferences, voidable under
section sixty, subdivision b, or to whom conveyances, transfers, assignments,
or incumbrances, void or voidable under section sixty-seven, subdivision e,
have been made or given, shall not be allowed unless such creditors shall
surrender such preferences, conveyances, transfers, assignments, or incu/m-
hran-cesM
I h The value of securities held by secured creditors shall be determined
' by converting the same into money according to the terms of the agree-
ment pursuant to which such securities were delivered to such creditors or
19 — The Italicized words in § 57g
were added by the amendment of
1003.
BANKRUPTCY ACT OF 1898 746
by such creditors and the trustee, by agreement, arbitration, compromise,
or litigation, as the court may direct, and the amount of such value shall
be credited upon such claims, and a dividend shall be paid only on the
unpaid balance.
i Whenever a creditor, whose claim against a bankrupt estate is secured
by the individual undertaking of any person, fails to prove such claim, such
person may do so in the creditor's name, and if he discharge such under-
taking in whole or in part he shall be subrogated to that extent to the
rights of the creditor.
j Debts owing to the United States, a State, a county, a district, or
a municipality as a penalty or forfeiture shall not be allowed, except for
the amount of the pecuniary loss sustained by the act, transaction, or pro-
ceeding out of which the penalty or forfeiture arose, with reasonable and
actual costs occasioned thereby and such interest as may have accrued
thereon according to law.
k Claims which have been allowed may be reconsidered for cause and
reallowed or rejected in whole or in part, according to the equities of the
case, before but not after the estate has been closed.
1 Whenever a claim shall have been reconsidered and rejected, in
whole or in part, upon which a dividend has been paid, the trustee may
recover from the creditor the amount of the dividend received upon the
claim if rejected in whole, or the proportional part thereof if rejected only
in part.
m The claim of any estate which is being administered in bankruptcy
against any like estate may be proved by the trustee and allowed by the
court in the same manner and upon like terms as the claims of other creditors.
n Claims shall not be proved against a bankrupt estate subsequent to
one year after the adjudication; or if they are liquidated by litigation and
the final judgment therein is rendered within thirty days before or after
the expiration of such time, then wdthin sixty days after the rendition of
such judgment: Provided, That the right of infants and insane persons
without guardians, without notice of the proceedings, may continue six
months longer.
§58. Notices to Creditors. — a Creditors shall have at least ten days'
notice by mail, to their respective addresses as they appear in the list of
creditors of the bankrupt, or as afterwards filed with the papers in the
case by the creditors, unless they waive notice in writing, of (1) all exam-
inations of the bankrupt; (2) all hearings upon applications for the con-
firmation of compositions; (3) all meetings of creditors; (4) all proposed
sales of property; (5) the declaration and time of payment of dividends;
(6) the filing of the final accounts of the trustee, and the time when and
the place where they will be examined and passed upon; (7) the proposed
compromise of any controversy; (8) the proposed dismissal of the pro-
ceedings, and (0) there shall he thirty days' notice of all applications for
the discharge of bankrupts.20
20 — % 58a originally read as fol- In the case by the creditors, unless
lows: "Creditors shall have at least they waive notice in writing, of (1)
ten days' notice by mall, to their re- all examinations of the bankrupt ; (2)
spective addresses as they appear In all hearings upon applications for the
the list of creditors of the bankrupt, confirmation of compositions or the
or as afterwards filed with the papers discharge of bankrupts; (3) all meet-
746 BANKRUPTCY ACT OF 1898
b Notice to creditors of the first meeting shall be published at least once
and may be published such number of additional times as the court may
direct; the last publication shall be at least one week prior to the date fijced
for the meeting. Other notices may be published as the court shall direct.
c AH notices shall be given by the referee, unless otherwise ordered by
the judge.
§ 59. Who May File and Dismiss Petitions. — a Any qualified person
may file a petition to be adjudged a voluntary bankrupt.
b Three or more creditors who have provable claims against any person
which amount in the aggregate, in excess of the value of securities held by
them, if any, to five hundred dollars or over; or if all of the creditors of
such person are less than twelve in number, then one of such creditors whose
claim equals such amount may file a petition to have him adjudged a bank-
rupt.
c Petitions shall be filed in duplicate, one copy for the clerk and one
for service on the bankrupt.
d If it be averred in the petition that the creditors of the bankrupt are
less than twelve in number, and less than three creditors have joined aa
petitioners therein, and the answer avers the existence of a larger number of
creditors, there shall be filed with the answer a list under oath of all the
creditors, with their addresses, and thereupon the court shall cause all such i
creditors to be notified of the pendency of such petition and shall delay the
hearing upon such petition for a reasonable time, to the end that parties in
interest shall have an opportunity to be heard; if upon such hearing it shall
appear that a sufficient number have joined in such petition, or if prior to or
during such hearing a sufficient number shall join therein, the case may be
proceeded with, but otherwise it shall be dismissed.
e In computing the number of creditors of a bankrupt for the purpose
of determining how many creditors must join in the petition, such creditors
as were employed by him at the time of the filing of the petition or are
related to him by consanguinity or affinity within the third degree, as deter-
mined by the common law, and have not joined in the petition, shall not be
counted.
f Creditors other than original petitioners may at any time enter their
appearance and join in the petition, or file an answer and be heard in opposi-
tion to the prayer of the petition.
g A voluntary or involuntary petition shall not be dismissed by the
petitioner or petitioners or for want of prosecution or by consent of parties
until after notice to the creditors, and to tliat end the court shall, before
entertaining an application for dismissal, require the bankrupt to file a list,
under oath, of all his creditors, with their addresses, omd shall cause notice
to be sent to all such creditors of the pendency of such application, and
shall delay the hearing thereon for a reasonable time to allow all creditors
and parties in interest opportunity to be heard.^^
ings of creditors; (4) all proposed the proposed dismissal of the proceed-
sales of property ; (5) the declaration ings."
and time of payment of dividends; (6) The lengthening of the time of no-
the filing of the final accounts' of the tice of applications for discharge was
trustee, and the time when and the made by tbe amendment of 1910.
place where they will be examined and 21 — The italicized words in | 59g
passed upon; (7) the proposed com- were added by the amendment of 1910.
promise of any controversy, and (8)
BANKRUPTCY ACT OF 1898 747
§ 60. Pkeferbed Ckeditoes. — a A person shall be deemed to have given
a preference if, being insolvent, he has, within four months before the filing
of the petition, or after the filing of the petition and before the adjudication,
procured or suffered a judgment to be entered against himself in favor of
any person, or made a transfer of any of his property, and the effect of the
enforcement of such judgment or transfer will be to enable any one of his
creditors to obtain a greater percentage of his debt than any other of such
creditors of the same class. Where the preference consists in a transfer, such
period of four months shall not expire until four months after the date of the
recording or registering of the tramsfer, if by law such recording or register-
ing is reguired.22
b If a bankrupt shall have procured or suffered a judgment to be entered
against him in favor 'of any person or have made a transfer of amy of hit
property, and if, at the time of the transfer, or of the entry of the judg-
ment, or of the recording or registering of the transfer if by law recording
or registering thereof is required, and beirtrg wi^in four months before the
filing of the petition in bankruptcy or aiter tiie filing thereof and before the
adjudication, the bankrupt be insolvent and the judgment or transfer then
operate as a preference, and the person receiving it or to be benefited thereby,
or his agent acting therein, shall then have reasonable cause to believe that
the enforcement of such judgment or transfer would effect a preference, it
shall be voidable by the trustee and he may recover the property or its value
from such person. And for the purpose of such recovery any court of bank-
ruptcy, as hereinbefore defined, and any state court which would have had
jurisdiction if bankruptcy had not intervened, shall have concurrent juris-
diction.'^^
c If a creditor has been preferred, and afterwards in good faith gives
the debtor further credit without security of any kind for property which
becomes a part of the debtor's estate, the amount of such new credit remain-
ing unpaid at the time of the adjudication in bankruptcy may be set off
against the amount which would otherwise be recoverable from him. -
d If a debtor shall, directly or indirectly, in contemplation of the filing
of a petition by or against him, pay money or transfer property to an attor-
ney and counselor at law, solicitor in equity, or proctor in admiralty for
services to be rendered, the transaction shall be reexamined by the court on
petition of the trustee or any creditor and shall only be held valid to the
22— The Italicized words in § 60a shall have given a preference, and the
were added by the amendment of 1903. person receiving It, or to be benefited
23 — § 60b originally read as fol- thereby, or his agent acting therein,
lows : "If a bankrupt shall have given shall have had reasonable cause to be-
a preference within four months be- lieve that it was intended thereby to
fore the filing of a petition, or after give a preference, it shall be voidable
the filing of the petition and before by the trustee, and he may recover
the adjudication, and the person re- the property or its value from such
ceiving it, or to be benefited thereby, person. And, for the purpose of such
or his agent acting therein, shall have recovery, any court of bankruptcy, as
had reasonable cause to believe that it hereinbefore defined, and any State
was intended thereby to give a prefer- court which would have had jurisdic-
ence, it shall be voidable by the trustee, tion if 'bankruptcy had not intervened,
and he may recover the property or its shall have concurrent jurisdiction."
value from such person." The other changes were made by the
The amendment of 1903 changed it amendment of 1910.
to read as follows : "If a bankrupt
748 BANKRUPTCY ACT OF 1898
extent of a reasonable amount to be determined by the court, and the excess
may be recovered by the trustee for the benefit of the estate.
CHAPTER VII
ESTATES
§ 61. Depositories for Money. — a Courts of bankruptcy shall designate,
by order, banking institutions as depositories for the money of bankrupt
estates, as convenient as may be to the residences of trustees, and shall
require bonds to the United States, subject to their approval, to be given
by such banking institutions, and may from time to time as occasion may
require, by like order increase the number of depositories or the amount of
any bond or change such depositories.
§ 62. Expenses of Administering Estates. — a The actual and necessary
expenses incurred by officers in the administration of estates shall, except
where other provisions are made for their payment, be reported in detail,
under oath, and examined and approved or disapproved by the court. If
approved, they shall be paid or allowed out of the estates in which they were
incurred.
\y § 63. Debts Which May Be Proved. — a Debts of the bankrupt which
may be proved and allowed against his estate which are (1) a fixed liability,
as evidenced by a judgment or an instrument in writing, absolutely owing
at the time of the filing of the petition against him, whether then payable
or not, with any interest thereon which would have been recoverable at that
date or with a rebate of interest upon such as were not then payable and
did not bear interest; (2) due as costs taxable against an involuntary bank-
rupt who was at the time of the filing of the petition against him plaintiff
in a cause of action which would pass to the trustee and which the trustee
declines to prosecute after notice; (3) founded upon a claim for taxable!
costs incurred in good faith by a creditor before the filing of the petition in
an action to recover a provable debt; (4) founded upon an open account,
or upon a contract express or implied; and (5) founded upon provable debts
reduced to judgments after the filing of the petition and before the con-
sideration of the bankrupt's application for a discharge, less costs incurred
and interests accrued after the filing of the petition and up to the time of the
entry of such judgments.
b Unliquidated claims against the bankrupt may, pursuant to applica-
tion to the court, be liquidated in such manner as it shall direct, and may
thereafter be proved and allowed against his estate.
§ 64. Debts Which Hate Priority. — a The court shall order the trustee
to pay all taxes legally due and owing by the bankrupt to the United States,
State, county, district, or municipality in advance of the payment of divi-
dends to creditors, and upon filing the receipts of the proper public officers
for such payment he shall be credited with the amount thereof, and in ease
any question arises as to the amount or legality of any such tax the same
shall be heard and determined by the court.
b The debts to have priority, except as herein provided, and to be paid
in full out of bankrupt estates, and the order of payment shall be (1) the
actual and necessary cost of preserving the estate subsequent to filing the
petition; {2) the filing fees paid by creditors in involuntary cases, and,
BANKRUPTCY ACT OF 1898 749
where property of the hcmkrupt, transferred or concealed by him either
before or after the filing of the petition, shall have been recovered for the
benefit of the estate of the bankrupt by the efforts and at the expense of one
or more creditors, the reasonable expenses of such recovery; 24 (3) the cost
of administration, including the fees and mileage payable to witnesses as
now or hereafter provided by the laws of the United States, and one reason-
able attorney's fee, for the professional services actually rendered, irrespec-
tive of the number of attorneys employed, to the petitioning creditors in
involuntary cases, to the bankrupt in involuntary cases while performing
the duties herein prescribed, and to the bankrupt in voluntary cases, as the
court may allow; (4) wages due to workmen, clerks, traveling or city sales-
men,2!i or servants which have been earned within three months before the
date of the commencement of proceedings, not to exceed three hundred dollars
to each claimant; and (5) debts owing to any person who by the laws of
the States or the United States is entitled to priority.
c In the event of the confirmation of a composition being set aside, or a
discharge revoked, the property acquired by the bankrupt in addition to
his estate at the time the composition was confirmed or the adjudication was
made shall be applied to the payment in full of the claims of creditors for
property sold to him on credit, in good faith, while such composition or
discharge was in force, and the residue, if any, shall be applied to the pay-
ment of the debts which were owing at the time of the adjudication.
§ 65. Declaration and Payment of Dividends. — a Dividends of an
equal per centum shall be declared and paid on all allowed claims, except
such as have priority or are secured.
b The first dividend shall be declared within thirty days after the adjudi-
cation, if the money of the estate in excess of the amount necessary to pay
the debts which have priority and such claims as have not been, but prob-
ably will be, allowed equals five per centum or more of such allowed claims.
Dividends subsequent to the first shall be declared upon like terms as the first
and as often as the amount shall equal ten per centum or more and upon
closing the estate. Dividends may be declared oftener and in smaller propor-
tions if the judge shall so order. Provided, That the first dividend shall
not include mx>re than fifty per centum of the money of the estate in excess
of the amount necessary to pay the debts which have priority and such claims
as probably will be allowed: And provided further, That the final dividend
shall not be declared within three months after the first dividend shall be
declared.2^
c The rights of creditors who have received dividends, or in whose favor
final dividends have been declared, shall not be affected by the proof and
allowance of claims subsequent to the date of such payment or declarations
of dividends; but the creditors proving and securing the allowance of such
claims shall be paid dividends equal in amount to those already received by
the other creditors if the estate equals so much before such other creditors
are paid any further dividends.
d Whenever a person shall have been adjudged a bankrupt by a court
24 — The Italicized words In § 64b (4) were added by the amendment of
(2) were added by the amendment of 1906.
1903. 26— The italicized words In g 65b
25 — The italicized words in S 64b were added by the amendment of 1003.
750 BANKRUPTCY ACT OF 1898
without the United States and also by a court of bankruptcy, creditors
residing within the United States shall first be paid a dividend equal to that
received in the court without the United States by other creditors before
creditors who have received a dividend in such courts shall be paid any
amounts.
e A claimant shall not be entitled to collect from a bankrupt estate any
greater amount than shall accrue pursuant to the provisions of this Act.
§ 66. Unclaimed Dividends. — a Dividends which remain unclaimed for
six months after the final dividend has been declared shall be paid by the
trustee into court.
b Dividends remaining unclaimed for one year shall, under the direction
of the court, be distributed to the creditors whose claims have been allowed
but tfot paid in full, and after such claims have been paid in full the balance
shall be paid to the bankrupt: Provided, That in case unclaimed dividends
belong to minors such minors may have one year after arriving at majority
to claim such dividends.
§ 67. Liens. — a Claims which for want of record or for other reasons
would not have been valid liens as against the claims of the creditors of the
bankrupt shall not be liens against his estate.
b Whenever a creditor is prevented from enforcing his rights as against
a lien created, or attempted to be created, by his debtor, who afterwards
becomes a bankrupt, the trustee of the estate of such bankrupt shall be v
subrogated to and may enforce such rights of such creditor for the benefit of
theestate.
^^A lien created by or obtained in or pursuant to any suit or proceeding
at law or in equity, including an attachment upon mesne process or a judg-
ment by confession, which was begun against a person within four months
before the filing of a petition in bankruptcy by or against such person shall
be dissolved by the adjudication of such person to be a bankrupt if (1) it
appears that said lien was obtained and permitted while the defendant was "~
insolvent and that its existence and enforcement will work a preference, or
(2) the party or parties to be benefited thereby had reasonable cause to
believe the defendant was insolvent and in contemplation of bankruptcy, or
(3) that such lien was sought and permitted in fraud of the provisions of
this Act; or if the dissolution of such lien would militate against the besK
interests of the estate of such person the same shall not be dissolved, but the \
trustee of the estate of such person, for the benefit of the estate, shall be \
subrogated to the rights of the holder of such lien and empowered to perfect I
and enforce the same in his name as trustee with like force and efl;ect as J
such holder might have done had not bankruptcy proceedings intervened. r
d Liens given or accepted in good faith and not in contemplation of or
in fraud upon this Act, and for a present consideration, which have been
recorded according to law, if record thereof was necessary in order to impart
notice, shall, to the extent of such present consideration only, not be aiJfected
by this Act.27
e That all conveyances, transfers, assignments, or incumbrances of his
property, or any part thereof, made or given by a person adjudged a bank-
rupt under the provisions of this Act subsequent to the passage of this Act
27 — ^The italicized words in § 67d
were added by the amendment of 1910.
BANKRUPTCY ACT OF 1898 751
and within four inontha pyinr In t.hft.filing nf t.hfi pptitinn, with the intent and
purpose on his part to hinder, delay, or defraud his creditors, or any of
them, shall be null and void as against the creditors of such debtor, except
as to purchasers in good faith and for a present fair consideration; and all
property of the debtor conveyed, transferred, assigned, or encumbered as
aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt
from execution and liability for debts by the law of his domicile, be and
remain a part of the assets and estate of the bankrupt and shall pass to his
said trustee, whose duty it shall be to recover and reclaim the same by legal
proceedings or otherwise for the benefit of the creditors. And all convey-
ances, transfers, or incumbrances of his property made by a debtor at any
time within four months prior to the filing of the petition against him, and
while insolvent, which are held null and void as against the creditors of such
debtor by the laws of the State, Territory, or District in which such property
is situate, shall be deemed null and void under this Act against the creditors
of such debtor if he be adjudged a bankrupt, and such property shall pass
to the assignee and be by him reclaimed and recovered for the benefit of the
creditors of the bankrupt. For the purpose of such recovery any court of
bankruptcy as hereinbefore defined, and any State court which ux)uld have
Iwd jurisdiction if bankruptcy had not intervened, shall have concurrent
jurijdiction.^fi
\ ([fjFhat all levies, judgments, attachments, or other liens, obtained through
legal proceedings against a person <i^ho is insolvent,|^t any ti"|fi ^lil*^^ ^""''
months jprior to the filing of a petition in bankruptcy against him, shall be
deemed null and void in case he is adjudged a bankrupt, and the property
affected by the levy, judgment, attachment, or other lien shall be deemed
wholly discharged and released from the same, and shall pass to the trustee
as a part of the estate of the bankrupt, unless the court shall, on due notice,
order that the right under such levy, judgment, attachment, or other lien
shall be preserved for the benefit of the estate ; and thereupon the same may
pass to and shall be preserved by the trustee for the benefit of the estate as
aforesaid. And the court may order such conveyance as shall be necessary
to carry the purposes of this section into effect: Provided, That nothing
herein contained shall have the effect to destroy or impair the title obtained
by such levy, judgment, attachment, or other lien, of a bona fide purchaser
for value who shall have acquired the same without notice or reasonable
cause for inquiry.
'-"" ^§68. Set-Offs and Counteeclaims. — a In all cases of mutual debts or
mutual credits between the estate of a bankrupt and a creditor the account
shall be stated and one debt shall be set off against the other, and the bal-
ance only shall be allowed or paid.
b A set-off or counterclaim shall not be allowed in favor of any debtor
of the bankrupt which (1) is not provable against the estate; or (2) was
purchased by or transferred to him after the filing of the petition, or within
four months before such filing, with a view to such use and with knowledge
or notice that such bankrupt was insolvent, or had committed an act of
bankruptcy.
I 69. Possession of Property. — a A judge may, upon satisfactory proof,
28 — 'The italicized words in § 67e
were added by the amendment of 1903.
752 BANKRUPTCY ACT OF 1898
by affidavit, that a bankrupt against whom an involuntary petition has been
filed and is pending has committed an act of bankruptcy, or has neglected or
is neglecting, or is about to so neglect his property that it has thereby
deteriorated or is thereby deteriorating or is about thereby to deterio-
rate in value, issue a warrant to the marshal to seize and hold it
subject to further orders. Before such warrant is issued the petitioners
applying therefor shall enter into a bond in such an amount as the judge
shall fix, with such sureties as he shall approve, conditioned to indemnify
such bankrupt for such damages as he shall sustain in the event such seizure
shall prove to have been wrongfully obtained. Such property shall be re-
leased, if such bankrupt shall give bond in a sum which shall be fixed by the
judge, with such sureties as he shall approve, conditioned to turn over such
property, or pay the value thereof in )noney to the trustee, in the event he is
adjudged a bankrupt pursuant to such petition.
§ 70. TiTLK TO Property. — a The trustee of the estate of a bankrupt,
upon his appointment and qualification, and his successor or successors, if
he shall have one or more, upon his or their appointment and qualification,
shall in turn be vested by operation of law with the tjJitPi "^ ^^f^ ^^ankrnpt., afl_
of the date lie was. adjudged a bankrupt, except in so far as it is to property
which is exempt, to all (1) documents relating to his property; (2) interests
in patents, patent rights, copyrights, and trade-marks; (3) powers which
he might have exercised for his own benefit, but not those which he might
have exercised for some other person; (4) property transferred by him in
fraud of his creditors; (5) property which prior to the filing of the petition
he could by any means have transferred or which might have been levied
upon and sold under judicial process against him: Provided, That when any
bankrupt shall have any insurance policy which has a cash surrender value
payable to himself, his estate, or. personal representatives, he may, within
thirty days after the cash surrender value has been ascertained and stated
to the trustee by the company issuing the same, pay or secure to the trustee
the sum so ascertained and stated, and continue to hold, own, and carry
such policy free from the claims of the creditors participating in the distri-
bution of his estate under the bankruptcy proceedings, otherwise the policy
shall pass to the trustee as assets; and (6) rights of action arising upon
contracts or from the unlawful taking or detention of, or injury to, his
property.
b All real and personal property belonging to bankrupt estates shall
be appraised by three disinterested appraisers; they shall be appointed by,
and report to, the court. Eeal and personal property shall, when practicable,
be sold subject to the approval of the court; it shall not be sold otherwise
than subject to the approval of the court for less than seventy-five per centum
of its appraised value.
c The title to property of a bankrupt estate which has been sold, as
herein provided, shall be conveyed to the purchaser by the trustee.
d Wlienever a composition shall be set aside, or discharge revoked, the
trustee shall, upon his appointment and qualification, be vested as herein
provided with the title to all of the property of the bankrupt as of the date
of the final decree setting aside the composition or revoking the discharge.
e The trustee may avoid any transfer by the bankrupt of his property
which any creditor of such bankrupt might have avoided, and may recover
BANKRUPTCY ACT OF 1898 753
the property so transferred, or its value, from the person to whom it was
transferred, unless he was a bona fide holder for value prior to the date of
the adjudication. Such property may be recovered or its value collected
from whoever may have received it, except a bona fide holder for value. For
the purpose of such recovery any court of bankruptcy as hereinbefore defined,
and any State court which would have had jurisdiction if bankruptcy had not
intervened, shall have concurrent jurisdiction.^^
f Upon the confirmation of a composition offered by a bankrupt, the title
to his property shall thereupon revest in him.
THE TIME WHEN THIS ACT SHALL GO INTO EFFECT
a This Act shall go into full force and effect upon its passage : Provided,
however, That no petition for voluntary bankruptcy shall be filed within one
month of the passage thereof, and no petition for involuntary bankruptcy
shall be filed within four months of the passage thereof.
b Proceedings commenced under State insolvency laws before the pas-
sage of this Act, shall not be affected by it.
§ 71. That the clerks of the several district courts of the United States
shall prepare and keep in their respective offices complete and convenient
indexes of all petitions and discharges in bank;ruptcy heretofore or here-
after filed in the said courts, and shall, when requested so to do, issue cer-
tificates of search certifying as to whether or not any such petitions or dis-
charges have been filed; and said clerks shall be entitled to receive for such
certificates the same fees as now allowed by law for certificates as to judg-
ments in said courts: Provided, That said bankruptcy indexes and dockets
shall at all times be open to inspection and examination by all persons or
corporations without any fee or charge therefor.^o
§ 72. That neither the referee, receiver, marshal, nor trustee shall iii any
form or guise receive, nor shall the court allow him, any other or further
compensation for his services than that expressly authorised and prescribed
in this Act.s^
29 — The Italicized words In § 70e effect, but such cases shall be adjudl-
were added by the amendment of 1903. cated and disposed of conformably to
.30 — § 71 was added by the amend- the provisions of the said Act of July
ment of 1903. first, eighteen hundred and ninety-
31 — § 72 was added by the amend- eight."
ment of 1903 in the following form : § 14 of the amendatory Act of June
"That neither the referee nor the 25, 1910 is as follows : "That the
trustee shall In any form or guise provisions of this amendatory Act
receive, nor shall the court allow shall not apply to bankruptcy cases
them, any other or further compensa- pending when this Act taljes effect, but
tion for their services than that ex- such cases shall be adjudicated and
pressly authorized and prescribed in disposed of conformably to the provi-
this Act." sions of said Act approved July first.
The receiver and marshal were In- eighteen hundred and ninety-eight, as
eluded In it by the amendment of 1910. amended by said Act approved Feb-
§ 19 of the amendatory Act of Feb- ruary fifth, nineteen hundred and
ruary 5, 1903, Is as follows : "That three, and as further amended by said
the provisions of this amendatory Act approved June fifteenth, nineteen
Act shall not apply to bankruptcy hundred and six."
cases pending when this Act takes
H. & A. Bankruptcy — 48
INDEX TO BANKRUPTCY ACT
PAGE
ACT, when to take effect 751
ACTS OF BANKRUPTCY, of what to consist 72^ f
ADJUDICATION, definition of 719
A PERSON AGAINST WHOM A PETITION HAS BEEN FILED, con-
struction of 719
APPEALS, from decisions of bankruptcy courts, to United States
Supreme Court, etc 732
APPELLATE COURTS, definition of 719
APPRAISAL, of bankrupt's property.. 750
ARBITRATION, submission of controversies in settling estates .... 732
ARREST, bankrupt exempt from, on civil process, etc 725
ASSIGNMENTS, general, an act of bankruptcy 722
subsequent to act, etc., to defraud, void 748-9
ATTACHMENTS, obtained within four months, etc., void 749
ATTORNEYS, payments to, by bankrupt may be reexamined, etc . . 745
BANKRUPT, definition of 719
acts of bankruptcy 722
petition to be filed in four months 722
petition to be accompanied by bond 723
who may become 723-4
a partnership may be 724
exemptions of 724
duties of 724-5
death or insanity of 725
protection and detention of 725
extradition of 726
suits by and against -. 726
compositions 726-7
discharges, application for 727
codebtors' liability not affected by discharge 728
debts not affected by discharge 728
courts and procedure to declare, etc 729
creditors, meetings, claims of, etc 741
estates of 746-50
BANKRUPTCY, with reference to time, what to mean 719
jurisdiction of courts 720-22
acts of ' 722
of corporation not to release its officers, etc 723
process, pleading, and jurisdiction 729
creditors 741-45
estates 746-50
BOARD OF DIRECTORS, punishment of, by courts of bankruptcy. . , 721
755
756 INDEX TO BANKRUPTCY ACT
PAGE
BONA FIDE PURCHASER, for value,, etc., title obtained by lien,
etc., not affected 749
BOND, in bankruptcy proceedings 739
when petitioner to give 723
trustees not to give, on appeals 732
of referees 739
of trustees 739
to be given by depositories of money of bankrupt estates 746
to indemnify, to be given on taking bankrupt's property 750
of bankrupt, to recover possession of property 750
CIRCUIT COURTS, jurisdiction of controversies between trustee and
adverse claimant 731
concurrent with courts of bankruptcy 731
CIRCUIT COURTS OF APPEALS, granted appellate jurisdiction over
courts of bankruptcy 731-2
appeal to Supreme Court from decision of 732
CLAIMS, what are provable 746
unliquidated may be liquidated and allowed 746
CLERK, definition of 719
in bankruptcy proceedings, duties of 740
CODEBTOR, liability of, not affected by bankrupt's discharge 728
COMMENCEMENT OF PROCEEDINGS, definition of 719
COMPENSATION, in bankruptcy proceedings, of trustees 738-9,751
of referees 735, 751
of clerks and marshals 740-1, 751
additional, to receivers, marshals, and trustees 721
COMPOSITIONS, courts of bankruptcy to confirm or reject 721
when, may be offered 726
application for confirming 726
may be set aside 727
confirmation of, a discharge from debts 728
payment of claims accruing after, when discharge revoked, etc. . . . 747
OOAO'ROMISE, trustees may compromise controversies, etc 733
CONCEAL, definition of 719
CONTEMPT, in bankruptcy proceedings, before referee 722, 736
proceedings to punish 736
CONVEYANCES, subsequent to act, etc., to defraud, void 748-9
void under State laws, etc 750-1
CORPORATIONS, definition of 719
punishment of, by courts of bankruptcy 721
bankruptcy of, not to release officers, etc 723
may be sureties on bonds of trustees and referees 740
COSTS, judgments for ; .•.'.':".':: 722
allowance of, on dismissing petition 723
COUNSEL FEES, allowance of, on dismissing petition 733
COUNSELOR AT LAW, payments to, by bankrupt, may be re-
examined 745
COUNTERCLAIMS, between bankrupt and creditor 749
INDEX TO BANKRUPTCY ACT 757
PAGE
COURTS (see Courts of Bankruptcy; Pleading and Practice; United
States Courts).
to determine issues, where facts controverted 729
decision, where pleadings not filed 729
to hear and adjudicate voluntary petitions 729
COURTS OF BANKRUPTCY, definition of 719
when an appeal may be taken from decisions 732
transfer of cases commenced in different 734
to appoint and remove referees, etc 734
CREDITORS, definition of 719
of bankrupt, time and place of meeting 741
claims, proof and allowance of 742-3
notices to ; waiver 743
who may file a petition 744
notice to, not joined in petition 744
computing number of 744
notice of dismissal 744
preferred, who deemed 745
examination of payments to attorneys, etc., on application 745
notices to, of pendency of petition 744
other than original, appearance of 744
set-offs between bankrupts' estate and 749
CRIMES AND OFFENSES, courts of bankruptcy to punish violations
of act 721
in bankruptcy proceedings, making false oath or affirmation .... 730
DAMAGES, allowance of, on dismissing petition 723
DATE OF BANKRUPTCY, definition of 719
DEATH, of bankrupt, not to abate proceedings 725
of trustee, suits not to abate 737
DEBTS, definition of 719
confirmation of composition, a discharge from 728
not affected by discharge 728
allowable against estate 746
having priority • 746-7
due the United States, allowance of 743
DEFINITIONS 719-20
DEPOSITIONS, in bankruptcy cases, laws governing 730
DEPOSITORIES, for money of bankrupt estates 746
DETENTION, of bankrupt for purposes of examination 725
DISCHARGE, definition of 719
application for 727
hearing of 727
from debts, on confirmation of composition 728
when revoked 788 "7
of bankrupt, not to affect codebtor's liability 728
debts not affected by 728
on revocation, payment of claims accruing after composition .... 747
DISTRICT COURTS (see United States courts).
made courts of bankruptcy 720
758 INDEX TO BANKRUPTCY ACT
PAGE
DIVIDENDS, declaration and payment of 747-8
creditors receiving, not affected by proof of subsequent claims, etc. 747
preference to certain creditors, etc 748
limit to right to collect 748
unclaimed 748
DOCUMENT, definition of 719
DOWER, death of bankrupt, not to aflfect widow, etc 725
ESTATES, bankrupt, depositories for money 746
expenses of administering 746
debts which may be proved 746
allowance of unliquidated claims 746
debts which have priority 746-7
declaration and payment of dividends 747-8
unclaimed 748
liens 748-9
set-oflFs and counterclaims 749
possession of 750
title to 750
EVIDENCE, compulsory attendance of witnesses 730
depositions, laws governing 730
EXEMPTIONS, of bankrupts, allowed by State laws, etc 724
EXTRADITION, by courts of bankruptcy, from one district to another 721
of bankrupts i 726
FINES (see Crimes and offenses), in bankruptcy matters 733
FORMS, in bankruptcy matters, to be prescribed by Supreme Court. . 733
FRAUD, practice of, grounds for setting composition aside 727
GUARANTOR, liability of, not affected by bankrupt's discharge .... 728
HOLIDAY, definition of 720
INCUMBRANCES, subsequent to act, etc., to defraud, void 748-9
INFANTS, time for proving claims against bankrupt 743
INSANE, bankrupt, time for proving claims 743
bankrupt becoming, not to abate proceedings 725
INSOLVENT, definition of 720
filing of petition against 722
from when to date 729
failure to prove, a complete defense 722
liens created while, to be dissolved 748
INSURANCE POLICY, of bankrupt, how may be retained 750
INVOLUNTARY BANKRUPT, who may become 723
JUDGE, definition of 720
JUDGMENT, lien created by, when dissolved 748
JURISDICTION, of courts of bankruptcy 720-3
of circuit court in suits between trustee and adverse claimant. . . . 731
concurrent between circuit courts and courts of bankruptcy. ... 731
courts of bankruptcy and State courts 749, 751
of appellate courts 731-2
of referees 734
over one partner, sufficient, etc 724
JURY, person against whom petition filed, entitled to trial by 729-30
INDEX TO BANKRUPTCY ACT 759
PAGK
LEVIES, obtained within four months, etc., void 749
LIENS, unrecorded claims not, etc 748
trustees subrogated to rights of creditor 748
created within four months of filing petition to be dissolved 748
given in good faith, etc., not affected 748
conveyances, etc., subsequent to act, to defraud 748-9
created through legal proceedings, void, etc 749
purchaser for value, etc., not affected 749
MARSHALS, courts of bankruptcy, to appoint 721
compensation of 740-1
additional 721
MASCULINE GENDER, words importing, how construed 720
MEETINGS, bankrupt to attend creditors', etc 724
of bankrupt's creditors 741
holders of secured claims not entitled to vote at 742
MINORS, time for claiming dividend 748
NEWSPAPERS, designation of, to publish bankruptcy notices 733
NOTICES, to creditors 743
to creditors not joined in petition 744
petitions not to be dismissed without 744
NUMBER, words importing plural, how construed 720
singular, how construed 720
OATH, definition of 720
by whom administered in bankruptcy matters 730
of office of referees 734
OFFICER, definition of 720
PAPERS, of trustees, open to inspection, etc 739
PARTNERSHIP, may be adjudged bankrupt 724
PERSONS, definition of 720
PETITION, definition of 720
of "A person against whom a petition has been filed" 719
against insolvent, when filed 722
from when to date 722
involuntary bankruptcy, service of 729
to be adjudged voluntary bankrupt, who may file 744
involuntary bankrupt 744
to be in duplicate 744
notice to creditors not joined 744
hearings on 744
PLEADING AND PRACTICE, involuntary bankruptcy, service of
petition 729
voluntary bankruptcy, hearing on filing petition 729
involuntary bankruptcy, jury trials 729-30
oaths and affirmations 730
evidence 730
reference of cases after adjudication 731
transfer of cases to different referee 731
jurisdiction of United States and State courts 731
suits of trustees, where brought 731
760 IxNDEX TO BANKRUPTCY ACT
PAGE
appellate courts, jurisdiction of 731-3
appeals and writs of error 732
arbitration of controversies 732-3
compromise 733
notices, how published 733
punishment for misappropriating property, etc 733
rules, forms, and orders, promulgation of 733
computation of time 733
transfer of cases 734
POLICY OF INSURANCE, of bankrupt, how may be retained 750
POSSESSION, of bankrupt's property, when taken 749-50
release of, on giving bond 750
PREFERENCE, defined 745
transferring property, etc., while insolvent 722
through legal proceedings 722
PREFERRED CREDITORS, claims not to be allowed unless preference
surrendered 742
who deemed such, etc 745
when preference voidable 745
giving further credit, etc 745
set-off of new credit 745
PROOF, against bankrupt, of creditors' claims, of what to consist .... 742
time of 743
PROPERTY (see Estates).
PROVABLE CLAIMS 746
PURCHASER, for value, etc., title obtained by lien, etc, not affected. . 749
RECEIVERS, courts of bankruptcy to appoint 721
additional compensation of 721
RECORDS, in bankruptcy proceedings, of referees, etc 735
REFEREE, definition of 720
in bankruptcy proceedings, creation of office, etc 734
duties of 735
compensation of 735
contempt before 736
reference of cases to 731
transfer of cases from one to another 731
RULES, in bankruptcy matters to be prescribed by Supreme Court. . 733
SECURED CREDITOR, definition of 720
when not entitled to vote 742
allowance of claims of 742
value of securities held by 742
claims secured by individual undertaking, etc 743
SEIZURE, of bankrupt's property, to prevent deterioration, etc 749-50
SET-OFFS, between bankrupt and creditor 749
SOLVENCY, a complete defense to bankruptcy proceedings 722
STATES, definition of 720
proceedings under insolvent laws of, not affected 751
SUITS, by and against bankrupts '. 726
not to abate on death of trustee 737
INDEX TO BANKRUPTCY ACT 761
PAGE
upon bonds of trustees and referees, when brought 740
lien created pursuant to, when dissolved 748
SUPREME CX)URT OF THE UNITED STATES, appellate jurisdiction
over courts of bankruptcy, etc 731-2
over circuit courts of appeals 732
certification of cases to, by United States courts 732
to prescribe rules, forms, and orders for bankruptcy courts 733
SURETIES (see Bonds), on bonds of trustees and referees 740
liability of, not affected by bankrupt's discharge 728
TAXES, owing by bankrupt, payment of 746
TERRITORIES, district courts of, made courts of bankruptcy 720
TIME, bankruptcy act, computation of days 733
when to take eflFect 751
TIME OF BANKRUPTCY, definition of 719
TITLE, to bankrupt's property vested in trustee 750
TRANSFER, definition of 720
of cases commenced in different courts 734
subsequent to act, etc., to defraud, void 748-9
void under State laws 750-1
TRIALS, by jury, in involuntary bankruptcy cases 729-30
TRUSTEE, definition of 720
in bankruptcy proceedings, creation of office 734
appointment; qualifications 736
death or removal 737
in bankruptcy proceedings, specification of duties 737
compensation 738-9
additional 721
accounts and papers, open to inspection, etc 739
appearance of 726
time of bringing suit against 726
in settling partnership estate, appointment of 724
may compromise controversies, etc 733
title of property vested in 7^
UNITED STATES COURTS (see Courts).
VENUE, transfer of cases from one court of bankruptcy to another. . . 722
VOLUNTARY BANKRUPT, who may become 723
VOTING, at creditors' meetings 742
holders of secured claims not entitled 742
WAGE-EARNER, definition of 720
WAGES, entitled to priority of payment 746
WIFE of bankrupt may be examined 730
WITNESSES, in bankruptcy proceedings, refusing to testify, etc .... 736
WORDS (see Definitions).
importing masculine gender 720
plural number 720
singular number 720
WRITS OF ERROR, when allowed to review decisions of bankruptcy
courts 732
H. & A. Bankruptcy — 49
TABLE OF CASES
[references are to pages.]
Allen, Be 553 Dimock v. Revere Copper Co. ..... 670
Allen & Co. v. Ferguson 711 Dunbar v, Dunbar 424, 707
Baker, Be 650
Baldwin v. Short 204
Bank of Dearborn v. Matney. ... 65
Banks, Be 318
Beasley v. Coggins 565
Beckham v. Drake 536
Beckhaus, Be 255
Benson v. Benson 202
Bibb V. Freeman 192
Blair, Be 51
Bluthenthal v. Jones 686
Boese v. King 16
Boonville Nat. Bank v. Blakey. .380
Brackett v. Watkina 130
British, etc., Co. v. Stuart 443
Brown & Adams v. Button Co.. . .401
Brown & Brown Coal Co, t.
Antezak 680
Burlingham v. Crouse 522
Cadogan v. Kennett 157
Carlile, Be 351
Central National Bank v. Hume. 137
Chandler, Be 663
Chicago, B. & Q. E. Co. v. Hall
497, 647
Church V. Chapin 183
Citizens' Banking Co. v. Eavenna
National Bank 266
Citizens' Loan Assn. v. E. E. Co.675
Clarke v. Larremore 587
Clarke v. Eogers 310
Coflan, Be 492
Cohn, Be 647
Columbus Buggy Co., Be 550
Courtenay Mercantile Co. ▼.
Finch 369
Crawford v. Burke 396
Crumbaugh v. Kugler 178
Cutting, Be 291
Eagles, Be 476
Earle v. Maxwell 512
Evans v. Staalle 678
Everett v. Judson 530
First National Bank. v. Bamum. 61
First National Bank v. Glass. ..150
First National Bank v. Staake. .592
Flickinger v. First Nat. Bank. . . 71
Ford Lumber Co. v. Curd 213
Francis v. McNeal 96
Freeman v. Pope 165
Funk, Be 89
Garneau, Be 47
Gaj,Be 545
Gazlay v. WiUiams 518
Gee V. Gee 708
Germania Savings Bank v. Loeb.638
Ghazal, Be 507
Gibson v. Carruthers 532
Gilpin V. Merchants' Nat. Bank. 664
Goding V. Eoscenthal 420
Gold, Be 557
Goodlander-Eobertson Co, v, At-
wood 342
Gormley v. Potter 190
Gowing V, Eich 121
Grant Shoe Co. v. Laird 409
Great Western Mfg. Co., Be 295
Griffin, Be 660
(
Hanover Nat. Bank v. Moyses. . . 1
Hargadine, etc., Co. v. Hudson. .688
Harlan v. Maglaughlin 233
Harper, Be 608
Hawkins v. Lamed 25
Hayer v. Comstoek 420
Henderson v, Mayer 578
Hewitt V. Boston Strawboard Co.357
763
764
TABLE OF CASES
[references
HineB, Be ..Ill
Holloway v. Millard 220
Hoxie, Ee 653
Huttig Mfg. Co. V. Edwards 117
Inman & Co., Re 451
Jaquith v. Alden 272
Jenkyn v. Vaughan 223
Johnson, Be 171
Johnson v. Collier 486
Johnson v. Crawford 26
Johnson v. Silsbee 132
Keppel V. Tiffin Savings Bank. ..360
Kimmel v. M 'Right 127
Kiskadden v. Steinle 620
Knapp V. Milwaukee Trust Co. . . 573
Levy, Be 659
Libby v. Hopkins 599
Lockwood V. Exchange Bank. . . .501
Loeser v. Savings Bank 248
Lynch 's Admr. v. Murray 217
McCormick v. Solinsky 660
McDavid Lumber Co., Be 472
McDonald v. TeflPt-Weller Co. . . . 83
Macon Grocery Co. v. Beach. . . .344
Martin v. Maxwell 512
Mathews Consolidated Slate Co.,
Be 54
Mayer v. Hellman 12
Messengill, Be 655
Meux V. Howell 161
Meyer 's Estate, Be 516
Missouri-American Co. v. Shoe Co.366
Moch V. Market Street Bank. . . .411
Neff, Be 448
New York County Bank v. Mas-
sey 275, 638
Noreutt v Dodd 128
Norfolk & W. B. Co. v. Graham . . 627
Old Town Bank v. McCormick.. 35
ARE TO PAGES.]
Page V. Edmunds 509
Peters v. United States 698
Phillips V. Dreher Shoe Co 413
Plotke, Re 42
Pope V. Title Guaranty & S. Co.. 582
Eeade v. Livingston 227
Reznek, Be 591
Richardson v. Shaw 300
Rider, Be 656
Roth & Appel, Be 434
Rouse-Hazard Co., Be 466
Santa Rosa Bank v. White 692
Schwaninger,. Be 101
Sexton V. Dreyfus 463
Shelley v. Boothe 200
Sherman v, Luckhardt 561
Shropshire, Woodliflf & Co. v.
Bush 470
Sibley v. Nason 542
Spalding, Be 373
State Bank of Chicago v. Cox. . .488
Swarts V. Fourth Nat. Bank 326
Swarts V. Siegel 415
Syracuse Paper & Pulp Co., Be. .481
Thompson v. Fairbanks ...282, 577
Thompson v. Judy 694
Tiffany v. Milk Co 73
Toof V. Martin 334
Twyne's Case 153
Wadsworth v, Schisselbauer 244
Wagner v. Burnham 633
Walrath, Be 79
Ward, Re 91
Warth, Be 707
Washington Nat. Bank v. Beatty.239
West Co. V. Lea 104
Wetmore v. Markoe 384
Whiting, Be 606
Wilmington Hosiery Co., Be . . . .377
Wilson V. Walrath 208
Wilson Bros. v. Nelson 261
Zavelo V. Reeves 391, 653, 711
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