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Full text of "The national Bankruptcy act of 1898 : with notes, procedure and forms"

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QJornpll Cam i>rl|0nl Bjibrary 



Cornell University Library 
KF 1524.B97 



The national Bankruptcy act of 1898 :wit 




3 1924 019 326 432 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924019326432 



THE 



NATIONAL BANKRUPTCY ACT 



OP 



18 9 8 



Notes, Procedure and Forms 



By J. ADRIANCE BUSH 

OF THE NEW YORK BAR 



NEW YOEK 

THE BANKS LAW PUBLISHING CO. 

20 MuBKAY Street 
1899 



Copyrip:ht, 1899, 

BY 

THE BANKS LAW PUBLISHING CO. 



JAMHS E. LYON. 

PRINTER, ELECTROTYrER AND BINDER. 

LYON BLOCK, ALBANY, N. Y. 



TABLE OF CONTENTS. 



INTRODUCTORY. 

CHAPTER I. 

Definitions. 
Section 1. Meaning of words and phrases. 

CHAPTER II. 

Cheation of CouEts OF Bankruptcy and Their Jurisdiction. 
Section 2. Same. 

CHAPTER III. 

Bankrupts. 

Section 3. Acts of bankruptcy. 

4. Wlio may become bankrupts. 

5. Partners. 

6. Exemptions of bankrupts. 

7. Duties of bankrupts. 

S. Death or Insanity of bankrupts. 

9. Protection and detention of bankrupts. 

10. Extradition of bankrupts. 

11. Suits by and against bankrupts. 

12. Compositions, when confirmed. 

13. Compositions, when set aside. 

14. Discharges, when granted. 

15. Discharges, when revoked. 

16. Codebtors of bankrupts. 

17. Debts not affected by a discharge. 

CHAPTER IV. 
Courts and Procedure Therein. 
Section 18. Process, pleadings, and adjudications. 

19. Jury trials. 

20. Oaths, affirmations. 



iv Table of Contents. 

Section 21, Evidence. 

22. Beferences of cases after adjudication. 

23. Jurisdiction of United States and State courts. 

24. Jurisdiction of appeilate courts. 

25. Appeals and writs of error. 

26. Arbitration of controversies. 

27. Oompromlses. 

28. Designation of. newspapers. 

29. Offenses. 

30. Rules, forms, and orders. 

31. Computation of time. 

32. Transfer of cases. 

CHAPTER V. 

Officebs, Theik Duties and Compensation. 
Section 33. Creation of two offices. 

34. Appointment, removal, and districts of referees. 

35. Qualifications of referees. 

36. Oaths of office of referees. 

37. Number of referees. 

38. Jurisdiction of referees. 

39. Duties of referees. 

40. Compensation of referees. 

41. Contempts before referees. 

42. Records of referees. 

43. Referee's absence or disability. 

44. Appointment of trustees. 

45. Qualifications of trustees. 

46. Death or removal of trustees. 

47. Duties of trustees. 

48. Compensation of trustees. 

49. Accounts and papers of trustees. 

50. Bonds of referees and trustees. 

51. Duties of clerks. 

52. Compensation of clerks and marshals. 

53. Duties of attorney-general. 

54. Statistics of bankruptcy proceedings. 



Table of Contbnts. 

chapter vi. 

Ckeditobs. 
Section 55. Meetings of creditors. 

56. Voters at meetings of creditors. 

57. Proof and allowance of claims. 

58. Notices to creditors. 

50. Who may file and dismiss petitions. 
60. Pi-eferred creditors. 

CHAPTEK VII. 

Estates. 
Section 61. Depositories for monej'. 

62. Expenses of administering estates. 

63. Debts which may hs proved. 

64. Debts which have priority. 

65. Declaration and payment of dividends. 

66. Unclaimed dividends. 

67. Liens. 

68. Set-offs and counterclaims. 

69. Possession of property. 

70. Title to property. 

(71). The time when this act shall go into effect. 

GENERAL, ORDERS OF THE SUPREME COURT. 

FORMS. 

BANKRUPTCY ACT OF 1800. 

BANKRUPTCY ACT OF 1841. 

BANKRUPTCY ACT OF 1837 AND AMENDMENTS. 

BANKRUPTCY ACT OF 1898. 

TABLE OF CASES. 

INDEX. 



TABLE OF CASES CITED. 



A. 

Abendroth v. Durant (1 Fed. Rep. 

849), 218. 
Abendroth v. Van Dolsen (131 V. S. 

66), 81, 104, 155. 
Adams v. Boston, H. & B. R. R. Co. 

(Holmes, 30; 1 Fed. Cas. 90), 64. 
Adams v. Collier (122 U. S. 82), 34, 49, 

109, 110, 279. 
Adams v. Crittenden (17 Fed. Rep. 42), 

32. 
Adams t. Crittenden (133 U. S. 296), 

37. 
Adams y. Merchants' Nat. Bank (2 

Fed. Rep. 174), 266, 347, 369. 
Adams v. Meyers (1 Saw. 396; 1 Fed. 

Cas. 137), 287. 
Adams v. Story (1 Fed. Cas. 141), 

408. 
Adams v. Tarrell (4 Fed. Rep. 7y6), 

51, 68. 
Ahl v. Thorner (2 Bond, 287; 1 Fed. 

Cas. 220), 262. 
Aiken v. Edrington (15 B. R. 271; 1 

Fed. Cas. 238), 216, 389. 
Aimes v. Moir (138 U. S. 306), 302. 
Ala. & C. R. R. Co. v. Jones (5 N. B. 

R. 97; 1 Fed. Cas. 275), 64, 65, 

16G. 
Ala. &c. R. R. Co. v. Jones (7 N. B. E. 

145; 1 Fed. Cas. 281), 164, 189. 
Alden v. H. & E. R. Co. (5 N. B. R. 

230; 1 Fed. Cas. 328), 31. 
AUeman v. Kneedler (2 Fed. Rep. 671), 

280. 
Allen V. Ferguson (18 Wall. 1), 107. 
Allen V. Massey (1 Dill. 40; 1 Fed. 

Cas. 504; affd., 17 Wall. 351), 372, 

373, 385. 
Allen V. Thompson (10 Fed. Rep. 116), 
. 134, 149. 
Allen V. Whittemore (8 Ben. 485; 1 

Fed. Cas. 521), 351. 
American File Co. v. Barritt (110 IF. 

S. 288), 216. 
Amsinck v. Bean (22 Wall. 395), 278. 
Andrews v. Dole (1 Dill. 108; 1 Fed. 

Cas. 878), 109. ' ' 



Andrews T. Graves (1 Dill. 108; 1 

Fed. Cas. 878), 268. 
Anibal v. Heacock (2 Fed. Rep. 169), 

112, 372. 
Anon. (11 Chi. Leg. News, 190; 1 Fed. 

Oas. 995), 
Anon. (29 Leg. Int. 20; 1 Fed. Cas. 

1011), 403. 
Anon. (1 N. B. R. 122; 1 Fed. Cas. 

1012), 209, 244, 245. 
Anon. (1 N. B. B. 216; 1 Fed. Cas. 

1013), 206. 
Anon. (1 N. Y. Leg. Obs. 349; 1 Fed. 

Cas. 1015 [1843]), 140, 147. 
Anon. (2 N. B. R. 141; 1 Fed. Oas. 

1015), 97. 
Anon. (3 N. Y. Leg. Obs. 155; 1 Fed. 

Cas. 1016 [1845]), 132. 
Anon. (1 Fed. Cas. 1017), 390. 
Anon. (1 Wall. Jr. 127; 1 Fed. Cas. 

1027 [1843]), 351. 
Anshutz V. Hoerr (1 Fed. Rep. 592), 

360. 
Antrim v. Kelly (4 N. B. R. 587; 1 

Fed. Cas. 1062), 268. 
Armstrong v. Rickey (2 N. B. R. 473; 

1 Fed. Cas. 1144), 334. 

Arnold v. Maynard (2 Story, 341; 1 

Fed. Cas. 1181 [1842]), 354. 
Ashby V. Steere (2 Woodb. & M. 342; 

2 Fed. Cas. 15 [1846]), 270, 274, 
354. 

Ashuelot Savings Bank v. Frost (19 

Fed. Rep. 237), 337. 
Aspinwall's Case (2 Fed. Cas. 65 

[1843]), 262. 
Atkinson v. Farmers' Bank (Crabbe, 

529; 2 Fed. Cas. 100 [1844]), 262, 

354, 406. 
A-tkinson v. Kellogg (10 N. B. R. 535; 

2 Fed. Cas. 104), 318. 
Atkinson v. Fnrdy (Crabbe, 551; 2 

Fed. Cas. 112 [1844]), 26, 45, 339. 
Atwood V. Kittell (9 Ben. 473; 2 Fed. 

Cas. 199), 390. 
Augustine v. McFarland (13 N. B. R. 

7; 2 Fed. Cas. 212), 41. 
Austin V. O'Reilly (2 Woods, 270; 2 

Fed. Cas. 234), 344. 



VIU 



Table of Cases Cited. 



Averett v. Stone (3 Story, 44'5; 8 Fed. 

Gas. 898 [1844]), 353. 
Avery v. Cleery (132 V. 8. 604), 110, 

114. 
Avery v. Hackley (20 Wall. 407), 349. 
Avery v. Johann (3 N. is. R. 144; 2 

Fed. Oas. 251), 59. 



Babbitt v. Burgess (2 Dill. 169; 2 Fed. 

Oas. 280), 190, 406. 
Babbitt v. Walbrun (1 Dill. 191; 2 

Fed. Oas. (283, 285; afCd., 16 Wall. 

577), 182, 359. 
Bacon v. International Bank, (131 U. 

S.), 349. 
Bailey v. Comings (16 N.' B. R. 382; 2 

Fed. Oas. 367), 86. 
Bailey v. Henderson (9 Ben. 534; 2 

Fed. Oas. 373), 262. 
Bailey v. Loeb (2 Woods, 578; 2 Fed. 

Gas. 376), 294, 343. 
Bailey v. Nichols (2 N. B. R. 478; i. 

Fed. Gas. 381), 289. 
Baily v. Glover (21 Wall. 342), 110, 

111. 
Baker v. Vasse (1 Craneh 0. O. 194; 

2 Fed. Oas. 480), 289. 
Baldwin v. Raplee (5 N. B. R. 19; 2 

Fed. Oas. 526), 188. 
Balfour v. Wheeler (15 Fed. Rep. 229), 

257 337, 
Balfour v. Wheeler (18 Fed. Rep. 898), 

61, 258. 
Balliet v. Seeley (34 Fed. Rep. 300), 

152. 
Bank v. Oampbell (14 Wall. 87-94), 

412. 
Bank v. Cooper (20 Wall. 171), 190. 
Bank of Commerce v. Russell (2 Dill. 

215; 2 Fed. Oas. 647), 316. 
Bank of N. 0. v. Dewey (19 N. B. R. 

314; 2 Fed. Oas. 670), 295. 
Bank v. Sherman (101 U. S. 403), 114, 

386. 
Banks v. Ogden (2 Wall. 57), 111. 
Barbour v. Priest (103 U. S. 293), 370. 
Barker v. Barker's Assignee (2 

Woods, 87; 2 Fed. Gas. 807), 372. 
Barker v. Barker's Assignee (2 

Woods, 241; 2 Fed. Oas. 809), 191. 
Barnard v. Hartford P. F. R. Go. (2 

Fed. Gas. 832), 184. 
Barnes v. Bellington (1 Wash. 0. G. 

29; 2 Fed. Gas. 858 [1803]), 59, 62. 
Barnes v. Rettew (28 Leg. Int. 124; 

2 Fed. Oas. 868), 359. 
Barnes v. Vetterlein (16 Fed. Eep. 

218), 371. 



Barnewall v. Jones 14 N. B. R. 278; 

2 Fed. Gas. 882), 360. 
Barron v. Newberry (1 Biss. 149; 2 

Fed. Gas. 937), 245, 390. 
Barstow v. Peckham (5 N. B. B. 92; 

2 Fed. Gas. 651), 322. 
Bartholomew v. West (2 Dill. 290; 2 

Fed. Gas. 963), 83, 8B. 
Bartholow v. Bean (18 Wall. 635), 

261. 
Bartles v. Gibson (17 Fed. Rep. 293), 

110, 152. 
Bartlett v. Mercer (8 Ben. 439; 2 Fed. 

Oas. 976), 
Bartlett v. Russell (4 Dill. 267; 2 Fed. 

Oas. 978), 335. 
Bayley v. University (106 U. S. 11), 

123. 
Bean v. Brookmire (1 Dill. 151; 2 

Fed. Gas. 1130), 281. 
Bean v. Brookmire (2 Dill. 108; 2 Fed. 

Oas. 1132), 116. 
Bean v. Laflin (15 N. B. R. 383; 2 

Fed. Gas. 1139), 270. 
Beattie v. Gardner (4 Ben. 497; S 

Fed. Gas. 1), 261. 
Bechtel's Gase (3 Fed. Oas. 16), 176. 
Beecher v. Bininger (7 Blatohf 170; 

3 Fed. Gas. 49), 214. 

Beecher v. Clark (12 Blatchf. 256; 2 

Fed. Gas. 52), 391. 
Beecher v. Fox (1 Fed. Rep. 273), 

387. 
Beecher v. Gillespie (6 Bep. 356; 3 

Fed. Oas. 57), 277. 
Beers v. Place (4 N. B. R. 459; 3 Fed. 

Gas. 71), 214. 
Belden v. Smith (16 N. B. R. 302; 3 

Fed. Gas. 83), 341, 396. 
Benjamin v. Hart (4 Ben. 454; 3 Fed. 

Gas. 189), 188. 
Bennett v. Alexander (1 Granch C. 0. 

90; 3 Fed. Gas. 203), 155. 
Bennett v. Mitchel (6 Law Rep. 16; T 

Fed. Oas. 462 [1842]), 274. 
Benton v. Allen (2 Fed. Rep. 448), 372. 
Blake v. Francis-Valentine Go. (8& 

Fed. Rep. 691). 410, 414. 
Blennerhassett v. Sherman (115 U. S. 

100), 329. 
Blythe v. Thomas (45 Fed. Rep. 784), 

804. 
Boatman's Bank v. State Sav. Assn. 

(114 U. S. 265), 378. 
Boese v. King (108 U. S. 379), 354. 
Booth V. Glark (17 How. Sz2), 217. 
Boothroyd Gase (14 N. B. R. 232; 3 

Fed. Gas. 881), 218. 
Borland v. Phillips (2 Dill. 283; 3 Fed. 

Gas. 909), 282. 



Table of Cases Cited. 



IX 



Bostwiek v. Foster (14 Blatchf. 436; 

3 Fed. Cas. 958), 327. 
Boutwell V. Allerdice (2 Hughes, 121; 

3 Fed. Cas. 1020), 49. 
Bowman t. Wilson (12 Fed. Rep. 864), 

318. 
Boyle V. Zachary (6 Pet. 348), 408. 
Boynton y. Ball (121 U. S. 457), 123, 

155. 
Bracken y. Johnston (4 Dill. 518; 3 

Fed. Cas. 1120), 339, 356. 
Bradley y. Adams Express Co. (3 Fed. 

Rep. 895), 236. 
Bradley y. Farwell (Holmes, 433; 3 

Fed. Cas. 1146), 354. 
Bradley v. Frost (3 Dill. 457; 3 Fed. 

Cas. 1151), 356. 
Bradley v. Healey (Holmes, 451; 3 

Fed. Cas. 1153), 44. 
Bradshaw v. Klein (2 Biss. 20; 3 Fed. 

Cas. 1176), 360. 
Briggs V. Stephens (7 Xiaw Rep. 281; 

4 Fed. Cas. 124 [1844]), 44, 233. 
Bristol T. Sanford (12 Blatchf. 341; 4 

Fed. Cas. 162), 217. 
Briswalter v. Long (14 Fed. Rep. 153), 

69. 
Britton y. Pay en (7 Ben. 219; 4 Fed. 

Cas. 183). 260. 
Brock V. Hoppock (2 N. B. R. 7; 4 

Fed. Cas. 197), 166. 331. 
Brock T. Terrell (2 N. B. R. 643; 4 

Fed. Cas. 198), 343, 360. 
Bromley v. Smith (2 Biss. 511; 4 Fed. 

Cas. 209), 300. 
Brookmire y. Bean (3 Dill. 186: 4 Fed. 

Cas. 243), 123. 
Brooks y. Dayis (1 Law & Eq. Rep. 

196; 4 Fed. Cas. 272). 363. 
Brooks y. D'Oryille (7 Ben. 485; 4 

Fed. Cas. 272), 364. 
Brown y. .Tefferson Co. Bank (9 Fed. 

Rep. 258), 257, 316. 
Brown y. Wygant (163 U. S. 618), 219. 
Buchanan v. Dunn (2 Hask. 215; 4 

Fed. Cas. 573), 351. 
Buchanan y. Smith (16 "Wall. 277), 

257, 276. 
Buckingham v. McLean (13 How. 

151), 59. 
Buckingham y. McLean (54 U. S. 150), 

353. 
Buckley y. Buffington (5 McLean, 457; 

4 Fed. Cas. 615 [1853]), 355. 
Bucknam y.Goss (1 Hask. 630; 4 Fed. 

Cas. 575), 328. 
BuUard y. National Eagle Bank (18 

Wall. 589), 345. 
BuUene y. Blain (6 Biss. 22; 4 Fed. 

Cas. 646), 119. 



Burbank y. Biglowe (92 V. S. 179), 

185. 
Burdick v. Gill (7 Fed. Rep. 668), 358. 

370. 
Burkholder y. Stump. (28 Leg. Int. 

125; 4 Fed. Cas. 749), 363. 
Burnhisel y. Firman (22 Wall. 170), 

273. 
Burr V. Hopkins (6 Biss. 345; 4 Fed. 

Cas. 814), 237. 
Burrill y. La wry (2 Hask. 228; 4 Fed. 

Cas. 829). 366. 
Bush y. Cooper (18 How. 82), 156. 
Byrd y. Harrold (18 N. B. R. 433; 4 

Fed. Cas. »49), 46, 49. 



Cady y. Whaling (7 Biss. 430; 4 Fed. 

Cas. 990), 363. 
Cameron y. Canieo (9 N. B. R. 527; 4 

Fed. Cas. 1128), 28. 
Campbell v. Traders' N. Bank (2 Biss. 

423; 4 Fed. Cas. 1192), 257, 261. 
Campbell y. Waite (9 Ben. 166; 4 Fed. 

Cas. 1205), 280. 
Campbell's Case (1 N. B. R. 165; 4 

Fed. Cas. 1153), 45. 
Capelle v. Hall (12 N. B. R. 1; 5 Fed. 

Cas. 34), 296. 
Carey y. Nagle (2 Biss. 244; 5 Fed. 

Cas. 60), 213. 
Carlisle y. Dayis (9 Ben. 18; 5 Fed. 

Cas. 75), 405. 
Carlton (5 Law Rep. 120; 5 Fed. Cas. 

86 [1842]), 32. 
Carr v. Gale (2 Ware, 3.30; 5 Fed. 

Cas. 118 [1847] ; affid., 3 W. & M. 

38; 5 Fed. Cas. 123), 186, 214. 
Carr y. Hilton (1 Curt. 230; 5 Fed. 

Cas. 134 [1852]), 389. 
Carr y. Hilton (1 Curt. 390; 5 Fed. 

Cas. 137 [1853]), 180. 
Castle y. Lee (11 N. B. B. 80; 5 Fed. 

Cas. 281), 277. 
Catlin y. Foster (1 Saw. 37; 5 Fed. 

Cas. 303), 243, 351. 
Catlin y. Hoffman (2 Saw. 286; 5 Fed. 

Cas. 307), 277, 331, 360. 
Oayanna y. Bassett (3 Fed. Rep. 215), 

123. 
Chandler y. Siddle (3 Dill. 477; 5 Fed. 

Cas. 459), 30. 
Chapman y. Brewer (114 U. S. 158), 

168, 185, 384. 
Chapman t. Forsyth (2 How. 202), 

153 154. 
Christy (3 How. 292), 37. 
Citizens' Bank y. Ober (1 Woods, 80; 

5 Fed. Cas. 733), 403, 404. 
Claflin V. Houseman (93 TJ. S. 130), 

185. 



Table op Cases Cited. 



Claridge v. Kulmer (1 Fed. Rep. 399), 

274, 373. 
Clarion Bank v. Jones (21 Wall. 325), 

61, 257, 258, 359. 
Clark V. Beeeher (154 V. S. 631), 371. 
Clark V. Clark (17 How. 315), 111, 373. 
Clark V. Ewing (3 B^ed. Rep. 83), 39. 
Clark V. Iseiln (21 Wall. 360^ 59, 273. 
Clark Y. Iselin (9 Blatchf. 196; 5 Fed. 

Cas. 880), 192. 
Clark V. Iselin (10 Blatchf. 20-1; 5 Fed. 

Cas. 881), 260, 268, 271. 
Clark V. Marx (5 Fed. Cas. 898), 375. 
Clark V. Skilton (5 Fed. Cas. 925), 

375. 
Clark V. Sparhawk (5 Fed. Cas. 928), 

378. 
Clarke v. Rist (3 McLean, 494; 5 Fed. 

Cas. 978 [1844]), 335. 
Cleary v. Ellis Foundry Co. (132 U. 

S. 612), 110, 114. 
Cleveland Ins. Co. v. Globe Ins. Co. 

(98 U. S. 366), 190, 193. 
Cleveland I. Co. v. Reed (24 How. 

284;, 401. 
Clinton v. Mayo (12 N. B. R. 39; 5 

Fed. Cas. 1057), 252. 
Coggeshall v. Potter (Holmes, 75; 6 

Fed. Cas. 3), 324, 363. 
Coit V. Robinson (19 Wall. 274), 
Collins V. Bell (3 N. B. R. 587; 6 

Fed. Cas. 118), 362. 
Collins V. Gray (8 Blatchf. 483; 6 Fed. 

Cas. 125), 281. 
Collins V. Hood (4 McLean, 186; 6 

Fed. Cas. 129 [1846]), 74. 
Commercial Bank v. Buckner (20 

How. 108), 149. 
Connell v. Crane (94 U. S. 441), 194. 
Conner v. Long (104 U. S. 228), 358. 
Conro V. Crane (94 U. S. 441), 174. 
Cook V. Lansing (3 McLean, 571; 6 

Fed. Cas. 412 [1847]), 108. ' 
Cook V. Sherman (20 Fed. Rep. 167), 

110. 
Cook V. TuUis (18 Wall. 332), 58. 
Cookingham v. Ferguson (8 Blatchf. 

488; 6 Fed. Cas. 450), 270, 372. 
Corbett v. Woodbury (5 Saw. 403; 6 

Fed. Cas. 531), 270, 292. 
Cory V. Clark (2 N. J. Law J. 122; 6 

Fed. Cas. 606), 77. 
Cox V. Wilder (2 Dill. 45; 6 Fed. Cas. 

684; revg. 5 N. B. R. 443; 6 H'ed. 

Cas. 685), 83. 
Coxe V. Hale (10 Blatchf. 56; 6 Fed. 

Cas. 689), 60, 270. 
Cragin v. Carmichael (2 Dill. 519; 6 

Fed. Cas. 706), 282, 324. ■ 



Cragin v. Thompson (2 Dill. 513; 6 

Fed. Cas. 708), 58, 360. 
Cramer v. Cohns (119 TJ. S. 355), 407. 
Cramton v. Tarbell (6 Fed. Cas. 745), 

326. 
Crane v. Morrison (4 Saw. 138; 6 Fed. 

Cas. 757), 73. 
Crane v. Penny (2 Fed. Rep. 187), 280, 

332 
Crawfo'rd v. Halsey (124 U. S. e48>, 

401. 
Creditors v. Cozzens (3 N. B. R. 281; 6 

Fed. Cas. 793), 33. 
Creditors v. Williams (4 N. B. R. 579; 

6 Fed. Cas. 793), 130. 
Crompton v. Conkling (9 Ben. 225; 6 

Fed. Cas. 848), 72, 78, 212. 
Crompton v. Conkling (15 N. B. R. 

417; 6 Fed. Cas. 850), 78. 
Crooks v. Stuart (7 Fed. Rep. 800), 36, 

358. 
Crump V. Chapman (1 Hughes, 188; 6 

Fed. Cas. 924), 361. 
Cunningham v. Cady (13 N. B. R. 

525; 6 Fed. Cas. 966), 62, 230. 
Cunningham v. Morgan (7 Blatchf. 

480; 6 Fed. Cas. 454), 364. 
Curran v. Munger (6 N. B. R. 33; 6 

Fed. Cas. 982), 191, 263, 275. 
Curry v. McCauley (20 Fed. Rep. 

583), 325. 
Cutter V. Dingee (8 Ben. 469; 6 Fed. 

Cas. 1078), 44. 



Dallet T. Flues (28 Leg. Int. 325; 6 

Fed. Cas. 1120), 233. 
Darby v. Boatman's Sav. Inst. (1 Dill. 

141; 6 Fed. Cas. 1179), 300, 352. 
Darby v. Lucas (5 i>. B. R. 437; 1 

Dill. 164; 6 Fed. Cas. 1183, 1184), 

271, 366. 
Darling v. Townsend (5 Fed. Rep. 

176), 258, 267. 
David V. Friedlander (104 U. S. 570), 

106, 108. 
Davis V. Anderson (6 N. B. R. 145; 

7 Fed. Cas. 103), 114, 237, 340, 

360. 
Davis V. R. R. Co. (1 Woods, 661; 7 

Fed. Cas. 164), 40. 
Davis V. Stitzer (19 N. B. R. 61; 7 

Fed. Cas. 177), 350. 
Dewey v. Kelton (18 N. B. R. 217; 7 

Fed. Cas. 573), 395. 
Dickey v. Harman (1 Cranch O. O. 

201; 7 Fed. Cas. 674 [1804]), 349. 
Dickinson v. Adams (4 Saw. 257; 7 

Fed. Cas. 676), 365. 



Table of Cases Cited. 



XI 



Dimock v. Revere Copper Co. (117 TJ. 

S. 559), 155. 
Dingee v. Becker (9 N. B. E. 508; 7 

Fed. Cas. 724), 146. 
Dixon V. Barnum (3 Hughes, 207; fl 

Fed. Cas. 748), 155. 
Doe V. Childress (21 Wall. 642), 104. 
Doe T. Hyde (114 V. S. 247), 111. 
Doggett V. Emerson (1 Woodb. & M. 

195; 7 Fed. Cas. 821, [1846]), 152. 
Donald, Case of, (7 Fed. Cas. 889), 

399 
Donaldson (1 N. B. R. 181; 7 Fed. 

Cas. 881), 32. 
Donaldson v. Farwell (5 Biss. 451; 7 

Fed. Cas. 883; affid., 93 U. S. 631), 

347. 
Donaldson v. Farwell (93 TJ. S. 631), 

215. 
Done T. Compton (2 N. B. R. 607; 7 

Fed. Cas. 776), 56. 
Dooley v. Virginia M. & F. I. Co. (2 

Hughes, 847; 7 Fed. Cas. 912), 50. 
Doty V. Johnson (6 Fed. Rep. 481), 

112. 
Douglass V. Vogeler (6 Fed. Cas. 53), 

323, 325. 
Downer v. Brackett (5 Ir. J. 392; 7 

Fed. Cas. 102 [1842]), 330, 334, 

385. 
DoTvning v. Traders' Bank (2 Dill. 

136; 7 Fed. Cas. 1008), 289. 
Drake v. RoUo (3 Biss. 273; 7 Fed. 

Cas. 1053), 379. 
Dudley v. Easton (104 U. S. 99), 217. 
DudleS^'s Case (1 Penn. L. .T. 302; 7 

Fed. Cas. 1150 [1842]), 41, 334. 
Duff T. Carrier (55 Fed. Rep. 433), 

232. 
Duff V. Hopkins (39 Fed. Rep. 599), 

195. 
Dunning t. Perkins (2 Biss. 421; 8 

Fed. Cas. 104), 277, 362. 
Durant v. Hospital L. I. Co. (2 Low. 

575; 8 Fed. Cas. 114), 395. 
Duser v. Murgatroyd (1 Wash. C. C. 

13; 8 Fed. Cas. 140 [1803]), 155. 
Dushane v. Beall (161 U. S. 513), 109, 

390. 
Dutcher v. Marine N. Bank (12 

Blatchf. 435; 8 Fed. Cas. 152), 

397 
Dutcher v. Wright (94 TJ. S. 553), 278. 
Dutton V. Freeman (5 Law Rep. 447; 

8 Fed. Cas. 175 [1842]), 23, 130, 

163, 230. 

E. 
Eastburn v. Yardley (30 Leg. Int. 404; 
8 Fed. Cas. 266), 338. 



Ecfort V. Greely (6 N. B. R. 433; 8 

Fed. Cas. 279), 54, 290. 
Edmondson v. Hyde (2 Saw. 205; 8 

Fed. Cas. 324), 88, 301. 
Eiseman v. Maul (12 Chi. Leg. News, 

112; 8 Fed. Cas. 397), 390. 
Emery v. Canal N. Bank (3 Cliff. 407; 

8 Fed. Cas. 644), 81. 

Erwin v. U. S. (97 U. S. 392), 386. 
Everett v. Derby (5 Law Rep. 225; 8 

Fed. Cas. 897 [1842]), 104. 
Everett v. Stone (3 Story, 446; 8 Fed. 

Cas. 898 [1844]), 266. 
Byster v. Gaff (91 U. S. 521), 36, 219. 
Ex parte Bennett (1 Penn. L. J. 145; 

3 Fed. Cas. 203 [1842]), 331. 

Ex parte Briggs (2 Low. 389; 4 Fed. 

Cas. 113), 148. 
Ex parte Bryan (2 Hughes, 278; 4 

Fed. Cas. 499), 399. 
Ex parte Calendar (5 Law Rep. 125; 

4 Fed. Cas. 1044 [1843]), 253. 
Ex parte Caylus (1 Low. 550; 5 Fed. 

Cas. 325), 351, 377. 
Ex parte Christy (3 How. 292, 194. 
Ex parte Columbian Ins. Co. (2 Low. 

5; 6 Fed. Cas. 176), 296. 
Ex parte Corse (1 N. Y. Leg. Obs. 231; 

6 Fed. Cas. 600), 171. 
Ex parte Dalby (1 Low. 431; 6 Fed. 

Cas. 116), 238, 326. 
Ex parte Davenport (1 Low. 384; 7 

Fed. Cas. 6), 228. 
Ex parte Drewry (2 Hughes, 435; 7 

Fed. Cas. 1074), 244, 349. 
Ex parte Eames (2 Story, 322; 8 Fed. 

Cas. 236), 
Ex parte Farnsworth (1 Low. 497; 8 

Fed. Cas. 1055), 288. 
Ex parte Faxon (1 Low. 404; 8 Fed. 

Cas. 1109), 310. 
Ex parte Fitz (2 Low. 519; 9 Fed. 

Cas. 185), 327, 350. 
Ex parte Flannagans (2 Hughes, 264; 

9 Fed. Cas. 247), 395. 

Ex parte Foster (5 Law Rep. 406; 9 

Fed. Cas. 507 [1842]), 248. 
Ex parte Fost* (2 Story, 131; 9 Fed. 

Cas. 508 [1842]), 147, 307, 385. 
Ex parte Freedley (Crabbe, 544; 9 

Fed. Cas. 744 [1844]), 255. 
Ex parte Garwood (Crabbe, 516; 10 

Fed. Cas. 58 [1843]), 261. 
Ex parte Gen. Assignee (5 Law Rep. 

362; 10 Fed. Cas. 164 [1842]), 345, 

385. 
Ex parte Gen. Assignee (1 N. Y. Leg. 

Obs. 131; 10 Fed. Cas. 1068), 394. 
Ex parte Hale (5 Law Rep. 403; 11 

Fed. Cas. 179 [1842]), 314. 



xu 



Tablb op Cases Cited. 



Ex parte Hamlin (2 Low. 571; 11 

Fed. Cas. 367), 125, 207, 245. 
Ex parte Harris (2 Low. 568; 11 Fed. 

Cas. 606), 230, 296. 
Ex parte Harris (3 N. Y. Leg. Obs. 

152; 11 Fed. Oas. 606 [1845]), 

254. 
Ex parte Harris (3 N. Y. Leg. Obs. 

152; 11 Fed. Cas. 607 [1845]), 

164. 
Ex parte Harwood (Crabbe, 496; 11 

Fed. Cas. 762 [1842]), 234. 
Ex parte Hobbs (2 Low. 491; 12 Fed. 

Cas. 260), 317. 
Ex parte Houghton (1 Low. 554; 12 

Fed. Cas. 584), 294. 
Ex parte Houghton (1 Low. 554; 12 

Fed. Cas. 584), 311. 
Ex parte Howard (2 Low. 487; 12 

Fed. Cas. 658), 378, 379. 
Ex parte Jewett (2 Low. 393; 13 Fed, 

Cas. 580), 160. 
Ex parte Kelty (1 Low. 304; 14 Fed, 

Cas. 277), 290. 
Ex parte Lake (2 Low. 544; 14 Fed 

Cas. 942), 294, 296. 
Ex parte Lapsley (1 Penn. L. J. 245 

14 Fed. Cas. 835), 235. 

Ex parte Lee (1 N. Y. Leg. Obs. 83; 

15 Fed. Cas. 134 [1842]), 384. 

Ex parte Mandell (1 Low. 506; 17 

Fed. Cas. 1), 327. 
Ex parte Morris (2 Low. 424; 17 Fed. 

Cas. 783), 233, 325. 
Ex parte Morrow (1 Low. 386; 17 

Fed. Cas. 845), 344. 
Ex parte Newhall (2 Story, 360; 18 

Fed. Cas. 75 [1842]), 380, 388, 

398. 
Ex parte O'Neill (1 N. B. R. 677; 18 

Fed. Cas. 714 [1867]), 242. 
Ex parte Pollard (2 Low. 411; 19 Fed. 

Cas. 942), 287. 
Ex parte Potts (Crabbe, 469; 19 Fed. 

Cas. 1199 [1842]), 159, 248. 
Ex parte Quackenboss (1 N. Y. Leg. 

Obs. 146; 20 Fed. Cas. 104 

[1842]), 354. 
Ex parte Randall (5 Law Rep. 115; 

20 Fed. Cas. 221 [1842]), 254. 
Ex parte Rockett (2 Low. 522; 20 Fed. 

Cas. 1070), 304. 
Ex parte Shouse (Crabbe 482; 22 

Fed. Cas. 27 [1842]), 247, 264. 
Ex parte Steiner (22 Fed. Cas. 1234), 

315. 
Ex parte Taylor (1 Hughes, 617; 23 

Fed. Cas. 727), 153. 
Ex parte Tebbets (5 Law Rep. 503; 23 

Fed. Cas. 825 [1842]), 393. 



Ex parte Trafton (2 Low. 505; 24 Fed. 

Cas. 122), 124, 231. 
Ex parte Traphagen (1 N. Y. Leg.- 

Obs. 98; 24 Fed. Cas. 134 [1842]), 

128. 
Ex parte Tremont Nail Co. (16 N. B. 

R. 448; 24 Fed. Cas. 183), 348. 
Ex parte Waddell (1 N. Y. Leg. Obs. 

53; 28 Fed. Cas. 1312 [1843]), 

387. 
Ex parte Whitcomb (2 Low. 523; 29 

Fed. Cas. 962), 220. 
Ex parte Whiting (2 Low. 472; 29 

Fed. Cas. 1053), 380. 
Ex parte Woollen (104 TJ. S. 300), 

188. 
Ex parte Wright (1 West. L. J. 143; 

30 Fed. Cas. 655 [1843]), 153. 
Ex parte Young ( 6 Biss. 53; 30 Fed. 

Cas. 828 [1874]), 285. 

P. 

Factor I. Co. v. Murphy (111 U. S. 

738), 403. 
Fairbanks v. Bank (38 Fed. Rep. 630), 

114, 125. 
Farmers & Drovers' S. Bank v. Kas. 

City Pub. Co. (3 Dill. 287; 8 Fed. 

Cas. 1027), 345. 
Farmers Co. v. Eno (35 Fed. Rep. 89), 

401. 
Farrin v. Crawford (2 N. B. R. 602; 

8 Fed. Cas. 1084), 54. 
Feibelman v. Packard (109 TJ. S. 421), 

51. 
Fellows V. Burnap (14 Blatchf. 63; 8 

Fed. Cas. 1131), 188. 
Fellows V. Hall .(3 McLean, 281; 8 

Fed. Cas. 1132 [1843]), 147. 
Ferguson v. Dent (24 Fed. Rep. 412), 

387. 
Ferguson v. Peckham (6 N. B. R. 

569; 8 Fed. Cas. 1152), 214. 
Field V. Baker (12 Blatchf. 438; 9 Fed. 

Cas. 9), 259, 352. 
Firemen's Ins. Co. v. Hemingway (9 

Fed. Cas. 75), 362. 
First National Bank v. Cook (154 TJ. 

S. 628), 392. 
Fisher v. Currier (5 Law Rep. 217; Q 

Fed. Cas. 127 [1842]), 60, 72. 
Fisher v. Henderson (8 N. B. R. 175; 

9 Fed. Cas. 132), 362. 

Fiske V. Hunt (2 Story, 582; 9 Fed. 

Cas. 169 [18421). 333. 
Fitch V. MoOie (2 Biss. 163; 9 Fed. 

Cas. 180), 59, 260. 
Floitas V. Mellen (39 Fed. Rep. 129 

[1889]), 347. 



Table of Cases Cited. 



xiu 



Fleitas v. Richardson (147 U. S. 550), 

156. 
Fleming v. Andrews (3 Fed. Rep. 632), 

265, 380. 
Fletcher v. Morey (2 Story, 555; 9 

Fed. Cas. 266 [1843]), ,350, 399. 
Flower v. Greenbaum (2 Fed. Rep. 

897), 156. 
Flower T. Greenbaum (50 Fed. Rep. 

190), 226. 
Fogarty v. Garrity (1 Saw. 233; 9 Fed. 

Cas. 330), 26. 
Fogg V. Stickly (11 N. B. R. 167; 9 

Fed. Cas. 334), 290. 
Ford V. Keys (4 Chi. Leg. News, 156; 

9 Fed. Cas. 426), 257. 
Forman v. Campbell (9 Ben. 472; 9 

Fed. Cas. 450), 214. 
Forsaith v. Merritt (1 Low. 336; 9 

Fed. Cas. 464), 281, 364. 
Foster (2 Story, 131; 9 Fed. Cas. 508 

[1842]), 32. 
Foster t. Ames (1 Low. 313; 9 Fed. 

Cas. 527), 186, 216. 284, 402. 
Foster v. Hacldey (2 N. B. R. 406; 9 

Fed. Cas. 54.51, 373. 
Foster v. Inglee (13 X. B. R. 239; 9 

Fed. Cas. 554), 355. 
Foster v. Rhodes (10 N. B. R. 523; 9 

Fed. Cas. 572), 406. 
Fowle T. Parlie (48 Fed. Rep. 789), 

124, 147. 
Fowler v. Dillon (1 Hnghes, 232; 9 

Fed. Cas. 616), 32. 
Fox V. Eckstein (4 N. B. R. 373; 9 

Fed. Cas. 626), 56. 
Fox V. Gardner (21 Wall. 475), 261, 

279. 
Franklin S. F. Soc, Estate of (31 
Leg. Int. 173; 9 Fed. Cas. 715), 

218 
Frazier v. McDonald (8 N. B. R. 237; 

9 Fed. Cas. 737), 100. 
French v. First Nat. Bank (8 Ben. 

248; 9 Fed. Cas. 787), 270. 
Fullings V. Fullings (3 N. J. L. J. 270; 

9 Fed. Cas. 991), 114, 214. 



Gaffney's Assignee v. Signaio (1 Dill. 

158; 9 Fed. Cas. 1026), 270, 324. 
Galbraith (1 N. Y. Leg. Obs. 5; 9 Fed. 

Cas. 1077 [1842]), 55. 
Galvin v. Boyd (25 Fittsb. L. J. 14; 9 

Fed. Cas. 1140), 213. 
Gardner v. Cook (7 N. B. R. 346; 9 

Fed. Cas. 1165), 304, 307. 
Garrison v. Markley (7 N. B. R. 246; 

10 Fed. Cas. 53), 179. 



Gaskill V. Betton (8 Fed. Rep. 746), 

336. 
Gassett v. Morse (21 Vt. 627; 10 Fed. 

Cas. 79 [1843]), 54, 406. 
Gattmen v. Honea (12 N. B. R. 493; 

10 Fed. Cas. 89), 350. 
Gauss V. Schrader (48 Fed. Rep. 816), 

80. 
Gay lor t. American (5 Biss. 86; 10 

Fed. Cas. 124), 357. 
Gazin v. Norton (38 Fed. Rep. 200), 

284, 305. 
Getz T. First Nat. Bank (10 Fed. Cas. 

273), 47. 
Gibson v. Dobie (5 Biss. 198; 10 Fed. 

Cas. 316), 263. 
Gibson v. Warden (14 Wall. 244), 267. 
Giddings t. Dodd (1 Dill. 116; 10 Fed. 

Cas. 338), 267. 
Gifeord v. Helms (98 TJ. S. 248), 401. 
Gilbert v. Quinby (1 Fed. Rep. Ill), 

320. 
Gillespie v. McKnight (3 N. B. R. 

468; 10 Fed. Cas. 385), 364. 
Gindrat v. Dane (4 Clife. 260; 10 Fed. 

Cas. 434), 186. 
Giveen v. Smith (1 Hask. 296; 10 Fed. 

Cas. 451), 364. 
Giveen v. Smith (1 Hask. 358; 10 Fed. 

Cas. 454), 185, 402. 
Glenn v. Abell (39 Fed. Rep. 10), 285. 
Glenny v. Langdon (98 U. S. 20), 373. 
Globe Ins. Co. v. Cable Ins. Co. (14 

N. B. R. 311; 10 Fed. Cas. 48), 

364. 
Goddard v. Weaver (1 Woods, 257; 10 

Fed. Cas. 513), 337. 
Goldsmith v. Hapgood (Holmes, 454; 

10 Fed. Cas. 568), 397. 
Golson V. Neihoff (2 Biss. 434; 10 Fed. 

Cas. 569), 277, 340. 
Goodall y. Tuttle (3 Biss. 219; 10 Fed. 

Cas. 579), 47, 214. 
Goodrich v. Dobson (43 Conn. 576; 30 

Fed. Cas. 1081 [1876]), 381. 
Goodrich v. Huuton (2 Woods, 137; 10 

Fed. Cas. 608), 146. 
Goodrich v. Remington (6 Blatchf. 

515; 10 Fed. Cas. 611), 30. 
Graham v. Boston H. & E. R. Co. (14 

Fed. Rep. 753), 168. 
Graham v. Boston H. & E. R. Co. (118 

U. S. 161), 168. 
Graham v. Stark (3 Ben. 520; 10 Fed. 

Cas. 939), 269, 277. 
Granis v. Beardsley (10 Fed. Caa. 

964), 364. 
Graves v. Winter (9 N. B. R. 357; 10 

Fed. Cas. 999), 50. 
Gray v. Beck (6 Fed. Rep. 595), 358. 



XIT 



Table of Cases Cited. 



Greely v. Scott (2 Woods, 657; 10 Fed. 

Cas. 1072), 85. 
Green v. Sarmiento (Pet. C. C. 74; 10 

Fed. Cas. 1117), 155. 
Greene v. Taylor (132 U. S. 415), 110, 

114. 
Greenwald v. Appell (17 Fed. Rep. 

140), 299. 
Grow V. Ballard (2 N. B. R. 194; 11 

Fed. Cas. 88), 89. 
Gulick's Bx'rs v. Mclver (3 Cranch C. 

C. 650; 11 Fed. Cas. 110 [1804]), 

217. 

H. 

Hall (5 Law Rep. 269; 11 Fed. Cas. 

196 [1842]), 28. 
Hall V. Allen (12 Wall. 452), 193, 194. 
Hall V. Greenbaum (33 Fed. Rep. 22), 

299. 
Hall V. Hayner (3 Chi. Leg. News, 

402; 11 Fed. Cas. 226), 328. 
Hall V. Scovel (10 N. B. R. 295; 11 

Fed. Cas. 253), 389, 400. 
Hall V. Wager (3 Biss. 28; 11 Fed. 

Cas. 271), 266, 275. 
Halleck v. Tritch (17 N. B. R. 293; 

11 Fed. Cas. 286), 186, 189, 271. 
Hamilton v. Nat. Loan Bank (3 Dill. 

230; 11 Fed. Cas. 362), 395. 
Hamlin v. Pettibone (6 Biss. 167; 11 

Fed. Cas. 373), 366. 
Hampton v. Rouse (22 Wall. 263), 98. 
Harding v. Crosby (17 Blatchf. 348; 

11 Fed. Cas. 490), 363. 
Harrington v. Fire Ass'n (11 Fed. Cas. 

605), 333. 
Harris v. Exchange Nat. Bank (4 Dill. 

133; 11 Fed. Cas. 624), 365. 
Harrison v. McLaren (10 N. B. R. 

244; 11 Fed. Cas. 654), 270. 
Harrison v. Sterrv (Bee, 244; 11 Fed. 

Cas. 669 [1807]), 308. 
Harrison v. Sterry (5 Cranch, 289), 

• 72, 308, 406. 
Harmanson v. Bain (1 Hughes, 188; 

11 Fed. Cas. 531), 373. 
Harmanson v. Bain (1 Hughes, 391: 

11 Fed. Cas. 539), 377. 
Harmon v. .Tamesson (1 Cran';h. 0. C. 

288; 11 Fed. Cas. 555 [1806]), 337. 
Hartz (1 N. Y. Leg. Obs. 39; 11 Fed. 

Cas. 722 [1842]), 67. 
Harvey v. Crane (2 Biss. 496; 11 Fed. 

Cas. 734), 264. 
Harvey v. Gage (31 Fed. Rep. 275), 

113. 
Haskell V. Ingalls (1 Hask. 341; 11 

Fed. Cas. 772), 260. 



Haskill V. Fry (14 N. B. R. 525; 11 

Fed. Cas. 777), 268. 
Hatfield v. Moller (4 Fed. Rep. 717), 

107. 
Haughey v. Albin (2 Bond, 244; 11 

Fed. Cas. 837), 260. 
Haughton v. Eustis (5 Law Rep. 505; 

11 Fed. Cas. 841 [1842]), 334. 
Haukins v. First Nat. Bank (1 Dill. 

462; 11 Fed. Cas. 479), 324. 
Hauselt v. Harrison (105 V. S. 401), 

273. 
Hawkins v. First Nat. Bank (1 Dill. 

453; 11 Fed. Cas. 880), 189. 
Hazleton v. Valentine (1 Low. 270; 11 

Fed. Cas. 942), 28. 
Hennequin v. Clews (11 U. S. 676), 

153. 
Henry v. La Societe Francalse (95 TT. 

S. 58), 235. 
Hersey v. Fosdick (20 Fed. Rep. 44), 

319. 
Hester v. Baldwin (2 Woods, 433; 12 

Fed. Cas. 69), 230. 
Hewitt V. Norton (1 Woods, 68; 12 

Fed. Cas. 71), 41. 
Hill V. Harding (107 U. S. 631), 109. 
Hill V. Harding (130 U. S. 699), 105. 
Hill V. Thompson (94 U. S. 322), 194. 
Hills V. Alden (2 Hask. 299; 12 Fed. 

Cas. 189), 399, 401, 403. 
Hitchcock V. RoUo (3 Biss. 276; 12 

Fed. Cfis. 231; 6 Chi. Leg. News, 

9; 12 Fed. Cas. 237), 378, 380. 
Hobson V. Markson (1 Dill. 421; 10 

Fed. Cas. 269), 168, 399. 
Hood V. Karper (5 N. B. R. 358; 12 

Fed. Cas. 456), 237, 356. 
Hood V. Spencer (4 McLean, 168; 12 

Fed. Cas. 459), 73, 155. 
Hoover v. Wise (91 U. S. 808), 335. 
Hopkins v. Carpenter (18 N. B. R. 

339; 12 Fed. Cns. 492), 49. 
Hough v. First Nat. Bank (4 Biss. 

349; 12 Fed. Cas. 564), 262. 
Houston V. City Bank (6 How. 486), 

402. 
Hovey v. Home Ins. Co. (10 N. B. R. 

224: 12 Fed. Cas. 604). 379. 
Howard v. Crompton (14 Blatchf. 328; 

12 Fed. Cas. 639), 215. 

Howell V. Todd (12 Fed. Cas. 707), 

262. 
Hubbard v. Alaire Works (7 Blatchf. 

284; 12 Fed. Cas. 776), 281, 282. 
Hudgins v. Lane (2 Hughes, 361; 12 

Fed. Cas. 800), 70, 72. 
Hudson V. Adams (18 N. B. R. 102; 

12 Fed. Cas. 806), 334. 



Table of Cases Cited. 



XV 



Hudson V. Schwab (18 N. B. R. 480; 

12 Fed. Cas. 814), 183. 
Hull (1 N. Y. Leg. Obs. 1; 12 Fed. 

Cas. 853), 69. 
Humphreys v. Blight's Assignee fl 

Wash. C. C. 44; 2 Fed. Cas. 875 

[1803]), 289. 
Hunker v. Bing (9 Fed. Rep. 277), 307. 
Hunt T. Holmes (16 N. B. R. 101; 

12 Fed. Cas. 916), 381. 
Hunt V. Jackson (5 Blatchf. 349; 12 

Fed. Cas. 924), 50. 
Hunt V. Pooke (5 N. B. R. 101; 12 

Fed. Cas. 930), 66, 67. 158. 
Huntington v. Saunders (64 Fed. Rep. 

476), 149, 190. 
Hurley t. Smith (1 Hask. 308; 12 Fed. 

Cas. 1014), 329. 
Hurst T. Teft (12 Blatchf. 217; 12 

Fed. Cas. 1044), 184, 316, 341. 
Hutchins v. Muzzy Iron Works (8 N. 

B. R. 458; 12 Fed. Cas. 1076), 45. 
Hyde v. Cohen (11 N. B. R. 461; 12 

Fed. Cas. 1106), 390. 
Hyde v. Corrigan (9 N. B. R. 466; 12 

Fed. Cas. 1106), 61. 
Hyde t. Sontag (1 Saw. 249; 12 Fed. 

Cas. 1113), 372. 
Hyde v. Woods (94 U. S. 523), 273. 
Hyslop V. Hoppock (5 Ben. 533; 12 

Fed. Cas. 1141), 166. 



In A. B., re (3 Ben. 66; 1 Fed. Cas. 2), 

208. 
In A. B., re (8 N. B. R. 244; 1 Fed. 

Cas. 3), 202. 
In Abbe, re (7 A. L. Reg. (N. C.) 824; 

1 Fed. Cas. 3), 70. 
In Abbott, re (1 Hask. 250; 1 Fed. 

Cas. 15), 34. 
In Abrahams, re (5 Law Rep. 328; 

7 Fed. Cas. 40 [1842]), 384. 
In Adams, re (29 Fed. Rep. 843), 74. 
In Adams, re (2 Ben. 503; 1 Fed. Cas. 

78), 174. 
In Adams, re (3 Ben. 7; 1 Fed. Cas. 

81), 175. 
In Adams, re (5 Ben. 544; 1 Fed. Cas. 

82), 245. 
In Adams, re (6 Ben. 56; 1 Fed. Cas. 

82), 178. 
In Adams, re (3 N. B. R. 561; 1 Fed. 

Cas. 83), 137. 
In Addison, re (3 Hughes, 430; 1 Fed. 

Cas. 167), 45. 
In Adler, re (2 Woods, 571; 1 Fed. 

Cas. 176), 211. 
In Alden, re (16 N. B. R. 39; 1 Fed. 

Cas. 327 [1844]), 399. 



In Alden, re (1 Fed. Cas. 327 [1844]), 

243. 
In Alexander, re (9 Ben. 99 1 Fed. 

Cas. 347), 118. 
In Alexander, re (1 Low. 470; 1 Fed. 

Cas. 351), 248. 
In Allen, re (13 Blatchf. 271; 1 Fed. 

Cas. 436), 35. 
In Allen, re (17 N. B. R. 157; 1 Fed. 

Cas. 439), 118. 
In Alsberg, re (16 N. B. R. 116; 1 

Fed. Cas. 557), 46, 152. 
In American P. G., etc., Ins. Co., re 
(12 N. B. R. 56; 1 Fed. Cas. 716), 
287. 
In Anderson, re (23 Fed. Rep. 482), 38, 

40, 49, 110, 164, 167, 176. 
In Anderson, re (7 Biss. 233; 1 Fed. 

Cas. 829), 233. 
In Anderson, re (2 Hughes, 378; 1 

Fed. Cas. 8.31), 39, 99, 147. 
In Angier, re (10 Am. L. Reg. N. S. 

190; 1 Fed. Cas. 914), 99, 404. 
In Antisdel, re (18 N. B. R. 289; 1 

Fed. Cas. 1054), 129, 130, 136. 
In Appold, re (7 Am. Law Reg. 624; 

1 Fed. Cas. 1075), 310, 344. 
In Archenbrown. re (8 N. B. B. 429; 

1 Fed. Cas. 1084), 307. 
In Archenbrown, re (11 N. B. R. 149; 

1 Fed. Cas. 1084), 48, 129, 244. 
In Arledge, re (1 N. B. R. 644; 1 Fed. 

Cas. 1127), 366. 
In Armstrong, re (9 Ben. 212; 1 Fed. 

Cas. 1134), 359. 
In Arnold, re (2 N. B. R. 160; 1 Fed. 

Cas. 1063), 241. 
In Ash, re (17 N. B. R. 19; 2 Fed. 

Cas. 6), 116. 
In Askew, re (3 N. B. R. 575; 2 Fed. 

Cas. 29), 90. 
In Aspinwall, re (7 Ben. 433; 2 Fed. 

Cas. 64), 178. 
In Aspinwall, re (11 Fed. Rep. 156), 

273. 
In Asten, re (8 Ben. 350; 2 Fed. Cas. 

69), 97. 
In Atkinson, re (7 N. B. R. 143; 2 

Fed. Cas. 96), 46. 
In Atlantic M. L. I. Co., re (9 Ben. 

270; 2 Fed. Cas. 168), 162, 246. 
In Atlantic M. L. I. Co., re (9 Ben. 

337; 2 Fed. Cas. 169), 283. 
In Aubrey, re (17 N. B. R. 287; 1 

Fed. Cas. 315), 38. 
In August, re (19 N. B. R. 161; 2 Fed. 

Cas. 208), 121. 
In Austin, re (16 N. B. R. 518; 2 Fed. 
Cas. 23), 162. 



XVI 



Table of Cases Cited. 



In Babcock, re (3 Story, 393; 2 Fed. 

Cas. 289 [1844]), 215, 229, 237, 

289. 
In Babcock, re (1 Woodb. & M. 26; 2 

Fed. Cas. 292 [1845]), 214. 
In Badenheim, re (15 N. B. R. 370; 2 

Fed. Cas. 325), 335. 
In Bailey, re (1 N. Y. I^pr. Ohs. 16; 2 

Fed. Cas. 358 [1842]), 141. 
In Bailey, re (2 Woods, 222; 2 Fed. 

Cas. 362), 118, 225, 226, 294. 
In Bailey, re (2 Ben. 437; 2 Fed. Cas. 

392), 26. 
In Baker, re (1 Hask. 593; 2 Fed. Cas. 

433) 335. 
In Baker, re "(14 N. B. R. 433; 2 Fed. 

Cas. 437), 339. 
In Bakewell, re (4 N. B. B. 619; 2 

Fed. Cas. 500), 229. 
In Balch, re (3 McLean, 221; 2 Fed. 

Cas. 503 [1841]), 106. 
In Baldwin, re (6 Ben. 196; 2 Fed. 

Cas. 507), 242. 
In Baldwin, re (19 N. B.. R. 52; 2 Fed. 

Cas. 508), 319. 
In Balmer, re (3 Hughes, 637; 2 Fed. 

Cas. 560), 132. 
In Bait. Co. D. Ass'n, re (2 Hughes, 

250;2Fed. Cas. 572), 148. 
In Bank of Madison, re (5 Blss. 515; 2 

Fed. Cas. 657), 316. 
In Bank of North Carolina, re (19 N. 

B. B. 164; 2 Fed. Cas. 668), 201. 
In Banks, re (1 N. Y. Leg. Obs. 274; 2 

Fed. Cas. 755 [1843 J), 135, 146. 
In Barman, re (14 N. B. E. 125; 2 

Fed. Cas. 831), 325. 
In Barnes, re (18 Fed. Rep. 158), 283, 

304. 
In Barnes, re (1 Low. 560; 2 Fed. Cas. 

854), 228. 
In Barnes, re (2 Fed. Cas. 855), 304. 
In Barnett, re (2 Fed. Cas. .S79i. raid. 
In Barrett, re (2 Hughes, 444; 2 Fed. 

Cas. 909), 207, 208. 
In Barrow, re (1 N. B. R. 481; 2 

Fed. Cas. 941), 402. 
In Bashford, re (2 N. B. R. 72; 2 

Fed. Cas. 10O4), 129, 153. 
In Bass, re (3 Woods, 382; 2 Fed. Cas. 

1004), 82. 
In Batchelder, re (1 Low. 373; 2 Fed. 

Cas. 1012), 146, 268. 
In Baxter, re (12 Fed. Rep. 72), 234. 
In Baxter, re (25 Fed. Rep. 700), 239. 
In Baxter, re (28 Fed. Rep. 452). .S13. 
In Baxter, re (18 N. B. R. 62; 2 Fed. 

Cas. 1044), 289. 
In Baxter, re (18 N. B. R. 497; 2 Fed. 

Cas. 1045), 289. 



In Bayly, re (19 N. B. K. 73; 2 Fed. 

Cas. 1085), 123. 
In Beadle, re (5 Saw. 351; 2 Fed. Caa. 

1106), 334, 359. 
In Beal, re (1 Low. 325; 2 Fed. Caa. 

1107), 96, 137. 
In Beal, re (9 Ben. 223; 2 Fed. Caa. 

1119), 28. 
In Bean, re (14 N. B. R. 182; 2 Fed. 

Cas. 1120), 176, 228. ' 
In Bear, re (5 Fed. Rep. 63), 164, 234. 
In Bear, re (7 Fed. Rep. 583), 338. 
In Bear, re (8 Fed. Rep. 428), 349. 
In Bear, re (11 N. B. B. 46; 2 Fed. 

Cas. 1166), 392. 
In Beardsley, re (1 N. B. R. 304; 2 

Fed. Cas. 1175), 131. 
In Beardsley, re (1 N. B. R. 457; 2 

Fed. Cas. 1176), 95. 
In Beatty, re (3 Ben. 233; 3 Fed. Caa. 

8), 141. 
In Beck, re (31 Fed. Rep. 554), 190. 
In Beck, re (1 N. B. R. 588; 3 Fed. 

Cas. 316), 354. 
In Beckerford, re (1 Dill. 45; 4 N. B. 

R. 203; 3 Fed. Cas. 26), 86. 
In Beckett, re (2 Woods, 173; 3 Fed. 

Cas. 27), 121. 
In Beede, re (19 N. B. R. 68; 3 Fed. 

Cas. 62), 83. 
In Beers, re (5 N. B. B. 211; 3 Fed. 

Cas. 64), 289. 
In Beisenthal. re (10 Ben. 42; 3 Fed. 

Cas. 75), 375. 
In Beisenthal, re (14 Blatchf. 146; 3 

Fed. Cas. 76), 363. 
In Belcher, re (2 Ben. 468; 3 Fed. Caa. 

79), 27. 
In Belden, re (4 Ben. 225; 3 Fed. Caa. 

79), 132. 
In Belden, re (5 Ben. 476; 3 Fed. Caa. 

80), 128. 
In Belden, re (2 N. B. R. 42; 3 Fed. 

Cas. 82), 60. 
In Belden, re (4 N. B. R. 194; 3 Fed. 

Cas. 82), 173. 
In Belew, re (4 Ben. 135; 2 Fed. Caa. 

559), 184, 341. 
In Bellamy, re (1 Ben. 390; 3 Fed. 

Cas. 121; 1 Ben. 426; 3 Fed. Cas. 

124; 1 Ben. 474; 3 Fed. Cas. 124; 

1 Ben. 474; 3 Fed. Cas. 126), 198. 
In Bellis, re (4 Ben. 53; 3 Fed. Caa. 

135), 145. 
In Bellis, re (3 N. B. R. 270; 3 Fed. 

Cas. 135), 177. 
In Bellows, re (3 Story, 428; 3 Fed. 

Cas. 138 [1844]), 40, 105. 
In Bennett, re (8 Ben. 561: 3 Fed 

Cas. 205), 119. 



Table of Cases Cited. 



xvu 



In Bennett, re (2 Hughes, 156; 3 fed. 

Cas. 206), 31, 325. 
In Bennett, re (2 Low. 400; 3 Fed. 

Cas. 209), 67. 
In Bennett, re (2 N. B. R. 181; 3 Fed. 

Cas. 211), 93. 
In Benson, re (8 Biss. 116; 3 Fed. Cas. 

236), 396. 
In Benson, re (16 N. B. R. 75; 3 B'od. 

Cas. 255), 77, 260. 
In Bergeron, re (12 N. B. R. 385; 3 

. Fed. Cas. 266), 169. 
In Bernla, re (5 Fed. Rep. 723), 144, 

265. 
In Berrian, re (6 Ben. 297; 3 Fed. Cas. 

283), 78. 
In Bersten, re (2 Ben. 244; 3 Fed. 

Cas. 282), 336. 
In Betts, re (4 Dill. 93; 3 Fed. Cas. 

314), 83. 
In Bidwell, re (2 N. B. R. 229; 3 Fed. 

Cas. 388), 71. 
In Bieler, re (7 N. B. R. 552; 3 Fed. 

Cas. 339), 170. 
In Bigelow, re (2 Ben. 469; 3 Fed. 

Cas. 341), 345. 
In Bigelow, re (3 Ben. 146; 3 Fed. Cas. 

345), 78. 
In Bigelow, re (3 Ben. 198; 3 Fed. 

Cas. 347), 287. 
In Bill, re (2 N. B. R. 241; 3 Fed. Cas. 

376), 360. 
In Bingham v. Richmond, re (6 N. B. 

R. 127; 3 Fed. Cas. 405), 241. 
In Bininger, re (7 Blatchf. 159; 3 Fed. 

Cas. 407), 41. 
In Bininger, re (7 Blatchf. 165; 3 Fed. 

Cas. 410), 192. 
In Bininger, re (7 Blatchf. 168; 8 Fed. 

Gas. 411), 41. 
In Bininger, re (7 Blatchf. 262; 3 Fed. 

Cas. 412), 60, 161,. 167. 
In Bins, re (4 Ben. 452; 3 Fed. Cas. 

420), 339. 
In Bjornstad, re (9 Biss. 13; 3 Fed. 

Cas. 489), 92, 94. 
In Blabon v. Hunt, re (2 N. .T. L. .T. 
179; 3 Fed. Cas. 493), 59, 269, 333. 
In Black, re (2 Ben. 171; 3 Fed. Cas. 

500), 330. 
In Black, re (2 Ben. 195; 3 Fed. Cas. 

495), 59, 266. 
In Black v. McClellan, re (12 N. B. R. 

481; 3 Fed. Cas. 504), 294. 
In Blackmore, re (11 Fed. Rep. 412), 

123. 
In Bland, re (2 Hughes, 334; 4 Fed. 

Cas. 17), 234. 
In Blandin, re (1 Low. 543; 3 Fed. 
Cas. 669), 287. 

ii 



In Bledsop, re (12 N. B. R. 402; 3 Fed. 

Cas. 686), 396. 
In Bliss, re (1 Ben. 407; 3 Fed. Cas. 

705), 208. 
In Bloch, re (18 N. B. R. 328; 3 Fed. 

Cas. 715), 120. 
In Block, re (18 N. B. R. 328; 3 Fed. 

Cas. 715), 117. 
In Blodget, re (5 N. B. R. 472; 3 Fed. 

Cas. 716), 211. 
In Blodgett, re (10 N. B. B. 145; ,3 

I'-Pd. Cas. 720), 91. 
In Bloss, re (4 N. B. R. 147; 3 Fed. 

Cas. 733), 234, 339. 
In Blue Ridge R. Co., re (2 Hughes, 

225; 3 Fed. Cas. 750), 351. 
In Blumenthal, re (18 N. B. R. 555, 

575; 3 Fed. Cas. 757, 758), 145. 
In Blumer, re n2 Fod. Rep. 4&9). 80. 
In Bogert, re (2 N. B. R. 585; 3 Fed. 

Cas. 803), 202. ^ 
In Bogert, re (3 N. B. B. 651; 3 Fed. 

Cas. 803), 209. 
In Bolton, re (2 Ben. 189; 3 Fed. Cas. 

S20), 233. 
In Bonesteel, re (2 N. B. R. 330; 3 

Fed. Cas. 849), 173. 
In Bonesteel, re (7 Blatchf. 175; 3 

Fed. Cas. 849), 366. 
In Bonnet, re (1 N. Y. Leg. Obs. 310; 

3 Fed. Cas. 854 [1843]), 60. 
In Bousfield & Poole M. Co., re (16 N. 

B. R. 489; 3 Fed. Cas. 1013), 239, 

274. 
In Bousfield & Poole M. Co., re (17 N. 

B. B. 153; 3 Fed. Cas. 1016), 43, 

106, 301. 
In Book, re (3 McLean, 307; 3 Fed. 

Cas. 867 [1843]), 63, 156, 159. 
In Boothroyd, re (14 N. B. R. 232; 3 

Fed. Cas. 881), 218. 
In Boothroyd, re (14 N. B. R. 223; 3 

Fed. Cas. 892), 83, 91. 
In Boothroyd, re (15 N. B. R. 364; 3 

Fed. Cas. 895), 327. 
In Borst, re (2 N. B. R. 171; 3 Fed. 

Cas. 913), 44. 
In Bo.ston H. & E. R. Co., re (9 

Blatchf. 101, 409; 3 Fed. Cas. 951), 

27. 
In Boston H. & E. R. Co.. re (?, N. B. 

R. 232; 3 Fed. Cas. 956), 163. 
In Boston Iron Works, re (29 Fed. 

Rep. 783), 285. 
In Boutelle, re (2 N. B. B. 129; 3 Fed. 

Cas. 1018), 128. 
In Bouton, re (5 Saw. 427; 3 Fed. Cas. 

1019), 248, 252. 
In Bowie, re (1 N. B. R. 628; 3 Fed. 
Cas. 1067), 33, 48, 218, 399. 



XTIU 



Table of Cases Cited. 



In Bowie, re (Fed. Cas. No. 1728), 40, 

411, 412. 
In Bowler, re (2 Hughes, 319; 3 Fed. 

Cas. 1072), 352. 
In Bowne, re (12 N. B. R. 529; 3 Fed. 

Cas. 1086), 312. 
In Boyd, re (2 Hughes, 349; 3 Fed. 

Cas. 1089), 389. 
In Boynton, re (10 Fed. Rep. 277), 63, 

139. 
In Bradley, re (2 Biss. 515; 3 Fed. 

Cas. 1135), 289. 
In Brand, re (2 Hughes, 334; 4 Fed. 

Cas. 17), 309. 
In Breck, re (8 Ben. 93; 4- Fed. Cas. 

43), 311, 392. 
In Breck, re (13 N. B. R. 216; 4 Fed. 

Cas. 44), 205. 
In Brent, re (2 Dill. 129; 4 Fed. Cas. 

59), 141. 
In Brick, re (4 Fed. Rep. 804), 95. 
In Bridgman, re (1 N. B. R. 312; 4 

Fed. Cas. Ill), 232. 
In Bridgman, re (2 N. B. B. 252; 4 

Fed. Cas. 112), 45. 
In Bright, re (9 Fed. Rep. 491), 138. 
In Brightman, re (18 N. B. B. 566; ^ 

Fed. Cas. 138), 317. 
In Brinker, re (19 N. B. R. 195; 4 Fed. 

Cas. 143), 314. 
In Brinkman, re (6 N. B. B. 541; 4 

Fed. Cas. 144), 360. 
In Brinkman, re (7 N. B. R. 421; 4 

Fed. Cas. 145), 108. 
In Brisco, re (2 N. B. R. 226; 4 Fed. 

Cas. 152), 226. 
In Brockway, re (12 Fed. Rep. 69), 

134, 143. 
In Brockway, re (23 Fed. Rep. 583), 

134. 
In Brodhead, re (3 Ben. 106; 4 Fed. 

Cas. 201), 136. 
In Broich, re (7 Biss. 303; 4 Fed. Cas. 

205), 226, 232, 234, 271. 
In Brooks, re (2 N. B. R. 466; 4 Fed. 

Cas. 246), 347. 
In Broome, re (3 Ben. 488; 4 Fed. Cas. 

317), 363. 
In Broome, re (3 N. B. B. 113; 4 Fed. 

Cas. 317), 363. 
In Brown, re (4 Ben. 142; 4 Fed. Cas. 

327), 316. 
In Brown, re (4 Fed. Cas. 327), 344. 
In Brown, re (5 Ben. 1; 4 Fed. Cas. 

328), 293. 
In Brown, re (5 Law Rep. 121; 4 Fed. 

Cas. 332 [1842]), 95. 
In Brown, re (5 Law Rep. 258; 4 Fed. 

Cas. 333 [1842]), 153. 



n Brown, re (3 N. B. R. 250; 4 Fed. 

Cas. 334), 83. 
n Brown, re (19 N. B. B. 270; 4 Fed. 

Cas. 336), 35. 
n Brown, re (19 N. B. R. 312; 4 Fed. 

Cas. 338), 149. 
n Brown, re (1 N. Y. Leg. Obs. 69; 4 

Fed. Cas. 339), 347. 
n Bruce, re (6 Ben. 515; 4 Fed. Cas. 

466), 243. 
n Bruce, re (9 Ben. 236; 4 Fed. Cas. 

467), 324. 
n Brunquest, re (7 Biss. 208; 4 Fed. 

Cas. 482), 348. 
n Bryce, re (19 N. B. R. 287; 4 Fed. 

Cas. 520), im 
n Buchanan, re (10 N. B. R. 97; 4 

Fed. Cas. 527), 252, 254. 
n Buchstein, re (9 Ben. 215; 4 Fed. 

Cas. 540), 148. 
n Buckhause, re (2 Low. 331; 4 Fed. 

Cas. 560), 229. 
n Bucyrus M. Co., re (5 N. B. R. 303; 

4 Fed. Cas. 584), 78. 
n Bugbie, re (9 N. B. R. 258; 4 Fed. 

Cas. 609), 234. 
n Burchell, re (4 Fed. Rep. 406), 150. 
n Burgess, re (3 N. B. R. 196; 4 Fed. 

Cas. 725), 141, 145. 
n Burk, re (Deady, 425; 4 Fed. Cas. 

729), 128, 132. 
n Burt, re (27 Fed. Rep. 548), 217. 
n Burton, re (29 Fed. Rep. 637), 353. 
n Burton, re (9 Ben. 324; 4 Fed. Cas. 

863), 26, 29. 
n Buse, re (3 N. B. B. 215; 4 Fed. 

Cas. 879), 351. 
n Bush, re (6 N. B. R. 179; 4 Fed. 

Cas. 879), 163, 169. 
n Butler, re (6 N. B. B. 501; 4 Fed. 

Cas. 894), 309, 343. 
n Butterfield, re (5 Biss. 120; 4 Fed. 

Cas. 919), 131. 
n Butterfield, re (14 N. B. R. 195; 4 

Fed. Cas. 919), 225. 
n Byrne, re (1 N. B. R. 464; 4 Fed. 

Cas. 951), 80, 281. 
n Cadwell, re (17 Fed. Rep. 693), 238. 
n Calendar, re (5 Law Rep. 129; 4 

Fed. Cas. 1045), 34. 
n California P. R. Co., re (3 Saw. 

1^40; 4 Fed. Cas. 10(J1), 166, 252. 
n Camden P. M. Co., re (3 N. B. B. 

59; 4 Fed. Cas. 1127), 165. 
n Campbell, re (17 N. B. R. 4- 4 Fed 

Cas. 1157), 393. 
n Canady, re (2 Biss. 75; 5 Fed. Cas. 

2), 127. 



Table of Cases Cited. 



XIX 



In Canfield, re (5 Law Rep. 415; 5 Fed. 

Cas. 8 [1843]), 249. 
In Cantrell, re (6 Ben. 482; 5 Fed. 

Cas. 31), 328. 
In Carow, re (4 N. B. R. 543; 5 Fed. 

Cas. 101), 396. 
In Carrier, re (39 Fed. Rep. 193), 217, 

307. 
In Carrier, re (47 Fed. Rep. 438), 132. 
In Carrier, re (48 Fed. Rep. 161), 165. 
In Carrier, re (51 Fed. Rep. 900), 232. 
In Carson, re (5 Ben. 277; 5 Fed. Cas. 

172), 206. 
In Casey, re (10 Blatclif. 376; 5 Fed. 

Cas. 279) 49. 
In Cavan, re'(19 N. B. R. 303; 5 Fed. 

Cas. 318), 120. 
In Cease, re (5 Law Rep. 408; 5 Fed. 

Cas. 388 [1842]), 249. 
In Chadwicls, re (5 Law Rep. 457; 5 

Fed. Cas. 398 [1842]), 140. 
In Chamberlin, re (9 Ben. 149; 5 Fed. 

Cas. 422), 309. 
In Chandler, re (9 N. B. R. 514; 5 Fed. 

Cas. 443), 292. 
In Chase, re (22 Vt. 649; 5 Fed. Cas. 

517 [1842]), 137. 
In Cheney, re (19 N. B. R. 16; 5 Fed. 

Cas. 541), 201. 
In Chisholm, re (4 Fed. Rep. 526), 219. 
In Churchman, re (5 Fed. Rep. 181), 

113. 
In Citizens' S. Bank, re (9 N. B. R. 

152; 5 Fed. Cas. 738), .SI. 
In Clairmont, re (1 Low. 230; 5 Fed. 

Cas. 810), 208. 
In Clap, re (2 Low. 168; 5 Fed. Cas. 

814), 72. 
In Clapp, re (2 Low. 468; 5 Fed. Cas. 

819), 121. 
In Clark, re (4 Ben. 88; 5 Fed. Cas. 

835), 75. 
In Clark, re (2 Biss. 73; 5 Fed. Cas. 

840), 135. 
In Clark, re (9 Blatehf. 372; 5 Fed. 

Cas. 841), 44, 189. 
In Clark, re (9 Blatchf. 379; 5 Fed. 

Cas. 844), 43. 
In Clark, re (5 N. B. R. 255; 5 Fed. 

Cas. 850), 2.34. 
In Clark, re (17 N. B. R. 554; 5 Fed. 

Cas. 855), 382. 
In Clark, re (19 N. B. R. 301; 5 Fed. 

Cas. 855), 133. 
In Clarke, re (2 Hughes, 405; 5 Fed. 

Cas. 939), 2.38, 277. 
In Clarke, re (2 N. B. R. 110; 5 Fed. 

Cas. 942), 129. 
In Cleveland Ins. Co., re (22 Fed. Rep. 

200), 301. 



In Clews, re (19 N. B. R. 109; 5 Fed. 

Cas. 1047), 152. 
In Clongh, re (2 N. B. R. 151; 5 Fed. 

Cas. 1086), 230. 
In Coan & Ten Broeke M. Co., re (6 

Biss. 315; 5 Fed. Cas. 1112), 316. 
In Cobb, re (1 N. B. R. 414; 5 Fed. 

Cas. 1123), 88. 
In Cogbill, re (2 Hughes, 313; 6 Fed, 

Cas. 1), 334. 
In Cogswell, re (1 Ben. 388; 6 Fed. 

Cas. 11), 210. 
In Cohaus, re (6 Fed. Cas. 12 [1842]), 

130. 
In Cohen, re (3 Dill. 295; 6 Fed. Cas. 

13), 90. 
In Cohen, re (19 N. B. R. 133: 6 Fed. 

Cas. 14), 46. 
In Cohn, re (6 N. B. R. 379; 6 Fed. 

Cas. 21), 307. 
In Colcord, re (2 Hask. 455; 6 Fed. 

Cas. 33), 145. 
In Collateral L. & S. Bank, re (5 Saw. 

331; 6 Fed. Cas. 100), 250. 
In Collier, re (12 N. B. B. 266; 6 Fed. 

Cas. 107), 73. 
In Collins, re (8 Ben. 328; 6 Fed. Cas. 

112), 304. 
In Collins, re (8 Ben. 59; 6 Fed. Cas. 

112), 324. 
In Collins, re (3 Biss. 415; 6 Fed. Cas. 

113), 63. 
In Collins, re (12 Blatchf. 548; 6 Fed. 

Cas. 114), 362. 
In Collins, re (1 N. B. R. 551; 6 Fed. 

Cas. 116), 174. 
In Columbian Metal "Works, re (3 N. 

B. R. 75; 6 Fed. Cas. 177), 403. 
In Commercial Bulletin Co., re (2 

Woods, 220; 6 Fed. Cas. 220). 344. 
In Comstock, re (5 Law Rep. 163; 6 

Fed. Cas. 231 [1842]), 46, 293. 
In Comstock, re (5 N. B. B. 191; 6 

Fed. Cas. 239), 313. 
In Comstock, re (3 Saw. 128; 6 Fed. 

Cas. 241), 167. 
In Conant, re (5 Blatchf. 54; 6 E'ed. 

Cas. 257), 114. 
In Condict, re (19 N. B. R. 142; 6 Fed. 

fjiR. 267), im. 
In Connell, re (3 N. B. R. 443; 6 Fed, 

Cas. 304), 97. 
In Conner, re (1 Low. 532; 6 Fed. Cas. 

312), 141. 261. 
In Cook, re (3 Biss. 122; 6 Fed. Cas. 

378), 262. 
In Cook, re (17 Fed. Rep. 328), 283. 
In Cook, re f17 Fpd. T!.op. .•'•28), 284. 
In Cook, re (3 Biss. 116; 6 Fed. Caa 

381), 346. 



XX 



Table of Cases Cited. 



In Cook, re (2 Story, 376; 6 Fed. Cas. 

383 [1843]), 330. 
In Cooke, re (10 N. B. K. 146; 6 Fed. 

Cas. 418), 172. 
In Cooke, re (12 N. B. R. 30; 6 Fed. 

Cas. 427), 181. 
In Cooke, re (6 Fed. Cas. 431), 108. 
In Cooper, re (16 N. B. R. 178; 6 Fed. 

Cas. 469), 324. 
In Corbett, re (5 Saw. 206; 6 Fed. 

Cas. 528), 77, 91. 
In Corn Exchange Bank," re (7 Biss. 

400; 6 Fed. Cas. 576), 309. 
In Cornwall, re (9 Blatchf. 114; 6 Fed. 

Cas. 586), 249, 352. 
In Cornwall, re (9 Blatchf. 114; 6 Fed. 

Cas. 586), 170. 
In Cornwall, re (4 N. B. R. 400; 6 

Fed. Cas. 595), 249. 
In Corwin, re (1 Fed. Rep. 847)^ 134. 
In Cotton, re (2 N. T. Leg. Obs. 370; 

6 Fed. Cas. 617 [18431). 292. 
In Coulter, re (2 Saw. 42; 6 Fed. Cas., 

637), 346. 
In Court, re (17 N. B. R. 555; 6 Fed. 
' Cas. 648), 169. 
In Cowles, re (1 N. B. R. 280; 6 Fed. 

Cas. 672), 58. 
In Cozart, re (3 N. B. R. 508; 6 Fed. 

Cas. 696), 350. 
In Craft, re (2 Ben. 214; 6 Fed. Cas. 

698), 61, 161. 
In Craft, re (6 Blatchf. 177; 6 Fed. 

Cas. 701), 353. 
In Craig, re (3 N. B. R. 100; 6 Fed. 

Cas. 711), 172. 
In Craig, re (4 N. B. R. 50; 6 Fed. 

Cas. 712), 177. 
In Cram, re (1 Hask. 89; 6 Fed. Cas. 

738), 237. 
In Cramer, re (13 N. B. R. 225; 6 Fed. 

Cas. 742), 241. 
In Crawford, re (3 N. B. R. 698; 6 

Fed. Cas. 766), 298. 
In Crawford, re (5 N. B. R. 301; 6 

Fed. Cas. 771), 292. 
In Cretiew, re (5 N. B. R. 423; 6 

Fed. Cas. 810), 141. 
In Crockett, re (2 Ben. 514; 6 Fed. 

Cas. 836), 70. 
In Croft, re (8 Biss. 188; 6 Fed. Cas. 

838), 92, 137. 
In Croney, re (8 Ben. 64; 6 Fed. Cas. 

863), 295. 
In Cross, re (2 Dill. 320; 6 Fed. Cas. 

884), 86. 
In Crossette, re (17 N. B. R. 208; 6 

Fed. Cas. 894), 251. 
In Croughwell, re (9 Ben. 360; 6 Fed. 

Oas. 902), 376. 



In Cunningham, re (19 N. B. R. 276; 

6 Fed. Cas. 958), 219. 
In Curtland, re (10 Blatchf. 515; 14 

Fed. Cas. 688), 402. 
In Cushman, re (7 Ben. 482; b Fed. 

Cas. 1066), 97. 
In Daggett, re (8 N. B. R. 287, 433; 6 

Fed. Cas. 1107, 1108), 43. 
In Dakin. re (19 N. B. R. 181; 6 Fed. 

Cas. 1114), 328. 
In Danforth, re (6 Fed. Cas. 1150), 

180. 
In Daniels, re (6 Biss. 405; 6 Fed. Cas. 

1167), 292. 
In Darby, re (4 N. B. R. 309; 6 Fed. 

Cas. 1177), 219. 
In Davidson, re (4 Ben. 10; 7 Fed. 

Cas. 27), 357. 
In Davis, re (1 N. B. R. 120; 7 Fed. 

Cas. 49), 225. 
In Davis, re (1 Hask. 232; 7 Fed. Cas. 

52), 305, 340. 
In Davis, re (2 N. B. R. 391; 7 Fed. 

Cas. 56), 233. 
In Davis, re (1 Saw. 260; 7 Fed. Cas. 

58), 106. 
In Day, re (7 Fed. Cas. 217), 133. 
In Dean, re (2 N. B. R. 89; 7 Fed. 

Cas. 291), 364. 
In Dean, re (3 N. B. R. 768; 7 Fed. 

Cas. 293), 350. 
In Decker, re (8 Ben. 81; 7 Fed. Cas. 

324), 297. 
In De Forest, re (9 N. B. R. 278; T 

Fed. Cas. 363), 164, 171. 
In Dell, re (6 Saw. 344; 7 Fed. Cas. 

415), 76. 
In De Metz, re (7 Fed. Cas. 451), 243. 
In Derby, re (6 Ben. 232; 7 Fed. Cas. 

513), 61, 63. 
In Detert, re (11 N. B. R. 293; 7 Fed. 

Cas. 545), 83. 
In Devoe, re (1 Low. 251; 7 Fed. Cas. 

565), 43. 
In Devore. re (16 N. B. R. 56; 7 Fed. 

Cas. 570), 43, 301. 
In Dewey, re (1 Low. 490; 7 Fed. Cas. 

572), 211. 
In Dey, re (3 Ben. 450; 7 Fed. Cas. 

62.^). 346. mo. 
In Dey, re (9 Blatchf. 285; 7 Fed. Cas. 

627). 346. 
In Dibblee, re (3 Ben. 283; 7 Fed. Cas. 

651), 53, 60, 167, 256, 264. 
In Dibblee. re (3 Ben. 354; 7 Fed. Cas. 

657), 195, 218. 
In Dickinson, re (18 N. B. R. 514- 7 

Fed. Cas. 675), 225. 
In Digffles, re (8 Ben. 36; 7 Fed. Cas. 



Table of Cases Cited. 



In Dillard, re (2 Hughes, 191; 7 Fed. 

Cas. 703), 404, 406. 
In Dobbins, re (18 N. B. R. 268; 7 

Fed. Cas. 781), 178. 
In Dodge, re (7 Fed. Cas. 785 [1842]), 

97, 158. 
In Dodge, re (4 Dill. 532; 7 Fed. Cas. 

788), 309. 
In Doe, re (2 N. B. R. 308; 7 Fed. 

Cas. 802), 208. 
In Dole, re (11 Blatchf. 499; 7 Fed. 

Cas. 828, 832), 176. 
In Donaldson, re (2 Dill. 546; 7 Fed. 

Cas. 882), 127. 
In Donnelly, re (5 Fed. Rep. 783), 160, 

168. 
In Donoghue, re (2 Hask. 17; 7 Fed. 

Cas. 899), 179. 
In Doody, re (2 N. B. R. 201; 7 Fed. 

Cas. 906), 129. 
In Doran, re (5 Cent. L. J. 260; 7 Fed. 

Cas. 915), 350. 
In Doty, re (16 N. B. R. 202; 7 Fed. 

Cas. 957), 299. 
In Douglass, re (11 Fed. Rep. 403). 

149. 
In Downing, re (1 Dill. 33; 7 Fed. Cas. 

1005), 78, 80. 
In Drake, rp (14 N. B. R. 150; 7 Fed. 

Cas. 1047), 315. 
In Dresser, re (3 N. B. R. 557; 7 Fed. 

Cas. 1069), 99. 
In Drisco, re (14 N. B. R. 541; 2 Low. 

430; 7 Fed. Cas. 1092^ 1104), 147, 

248. 
In Drummond, re (1 N. B. B. 231; 7 

Fed. Cas. 1108), 54. 
In Drummond, re (4 Biss. 149; 7 Fed. 

Cas. 1110), 2.39, 207. 
In Duerson, re (13 N. B. R. 183; 7 

Fed. Cas. 1166), 86, 90. 
In Duff, re (4 Fed. Rep. 519), 330. 
In Dumahaut, re (15 Blatchf. 20; 7 

Fed. Cas. 1177), 117. 
In Dumahaut, re (19 N. B. R. 394; 7 

Fed. Cas. 1181), 307. 
In Dumont, re (7 Fed. Cas. 1184), 367. 
In Duncan, re (8 Ben. 365; 8 Fed. Cas. 

1), 166, 169, 251, 363. 
In Duncan, re (8 Ben. 541; 8 Fed. Cas. 

8), 180. 
In Duncan, re (18 N. B. B. 42; 8 Fed. 

Cas. 9), 133. 
In Dunham, re (2 Ben. 488; 8 Fed. 

Cas. 33), 55, 159, 182. 
In Dunham, re (1 Hask. 495; 8 Fed. 

Cas. 35), 77. 
In Dunham, re (27 Leg. Int. 404; 8 

Fed. Cas. 35), 310, 343. 



In Dunkerson, re (4 Biss. 227; 8 Fed. 
I Cas. 48), 345. 

In Dunkerson, re (4 Biss. 253; 8 Fed. 
I Cas. 51), 232. 
In Dunkerson, re (4 Biss. 277; 8 Fed. 

Cas. 54), 76. 
In Dunkerson, re (4 Biss. 323; 8 Fed. 
I Cas. 55), 77. 
In Dunkle, re (7 N. B. R. 72; 8 Fed.. 

Cas. 56), 355. 
lu Dunn, re (53 Fed. Rep. 341), 125. 
In Dunn, re (2 Hughes, 169; 8 Fed. 

Cas. 93), 40, 338. 
In Dunn, re (9 N. B. B. 487; 8 Fad. 

Cas. 96), 181. 
In Dupee, re (2 Low. 18; 8 Fed. Cas. 

108), 133. 
In Duryea, re (17 N. B. R. 495; 8 Fed. 

Cas. 131), 40. 48. 
In Duryea, re (7 N. B. R. 495; 8 Fed. 

Cas. 131), 48. 
In Dyke, re (9 N. B. B. 430; 8 Fed. 

Cas. 214), 343. 
In Earle, re (3 N. B. R. 304; 8 Fed. 

Cas. 251), 179. 
In Eckenroth, re (8 Fed. Cas. 286), 

263, 344. 
In Edward, re (2 N. B. R. 349; S 

Fed. Cas. 343), 93. 
In Bidom, re (3 N. B. B. 106; 8 Fed. 

Cas. 385), 130. 
In Ekings, re (6 Fed. Rep. 170), 137. 
In Elder, re (1 Saw. 73; 8 Fed. Cas. 

401), 231. 
In Eldred, re (3 N. B. B. 256; 8 Fed. 

Cas. 407), 389. 
In Eldridge, re (2 Biss. 362; 8 Fed. 

Cas. 412), 327, 401. 
In Eldridge, re (2 Hughes, 2^6; 8 Fed. 

Cas. 414), 298, 300. 
In Ellerhorst, re (2 Saw. 219; 8 Fed. 

Cas. 520), 243. 
In Ellerhorst, re (5 N. B. R. 144; 8- 

Fed. Cas. 522), 290. 
In Elliott, re (2 N. B. B. 110; 8 Fed. 

Cas. 540), 129, 140. 
In Ellis, re (5 Ben. 421; 8 Fed. Cas. 

548), 319. 
In Ellis, re (1 N. B. R. 55»; 8 Fed. 

Cas. 549), 88. 
In Ely, re (5 Law Rep. 323; 8 Fed. 

Cas. 598 [1843]), 129. 
In Ely, re (1 N. Y. Leg. Obs. 343; S 

Fed. Cas. 599), 271. 
In Emery & Leeds, re (1 Fed. Cas. 78(i 

[1843]), 270. 
In Emison, re (2 N. B. R. 505; 8 Fed. 

Cas. 666), 231. 



XXll 



Table of Cases Cited. 



In English, re (6 Fed. Rep. 276), 112. 
In Erie R. M. Oo., re (1 Fed. Kep. 

585), 316. 
In Erwin, re (3 N. B. R. 580; 8 Fed. 

Cas. 779), 316. 
In Ess, re (3 Biss. 301; 8 Fed. Cas. 

785), 70. 
In Estes, re (3 Fed. Rep. 134), 79, 331. 
In Estes, re (5 Fed. Rep. 60), 386. 
In Ettinger, re (18 N. B. R. 222; 8 

Fed. Cas. 809), 385. 
In Eureka Mfg. Co., re (1 Low. 500; 

8 Fed. Cas. 832), 291. 
In Evans, re (1 Low. 525; 8 Fed. Cas. 

833), 105. 
In Evans, re (3 N. B. R. 261; 8 Fed. 

Cas. 835), 328. 
In Everett, re (9 N. B. R. 90; 8 Fed. 

Cas. 906), 84. 
In Ewing, re (16 Fed. Rep. 753), 403. 
In Falkner, re (16 N. B. R. 503; 8 

Fed. Cas. 97.3), 207. 
In Fallon, re (2 N. B. R. 277; 8 Fed. 

Cas. 977), 248. 
In Farish, re (2 N. B. R. 168; 8 Fed. 

Cas. 1015), 87. 
In Farmer, re (18 N. B. R. 207; 8 Fed. 

Cas. 1019), 178. 
In Farns worth, re (5 Biss. 223; 8 Fed. 

Cas. 1056), 345. 
In Farnum, re (6 Law Rep. 21; 8 Fed. 

Cas. 1057 [1843]), 76. 
In Farrell, re (5 N. B. R. 125; 8 Fed. 

Cas. 1078), 127. 
In Fay, re (3 N. B. R. 660; 8 Fed. 

Cas. 1111), 179. 
In Feely, re (3 N. B. R. 66; 8 Fed. 

Cas. 1123), 93. 
In Feeny, re (1 Hask. 304; 8 Fed. 

Cas. 1124), 44. 
In Feinberg, re (3 Ben. 162; 8 Fed. 

Cas. 1126), 177. 
Tn F»ndlov. ro (10 N. B. R. 250; 8 Fed. 

Cas. 1137), 
Tn Ferguson, re (2 Hughes, 286; 8 Fed. 

Cas. 1149), 105. 
In Fprris, re (6 Ben. 473; 8 Fed. Cas. 

1164), 167. 
Tn Fetherston, re (5 Chi. Leg. News, 

193; 8 Fed. Cas. 1174), 88. 
Tn Findlay, re (5 Biss. 480; 9 Fed. Cas. 

55) 159. 
In Finn, re (8 N. B. R. 525; 9 Fed. 

Cas. 72), 137. 
In Firemen's Ins. Co., re (3 Biss. 462; 

9 Fed. Cas. 72), 302. 
Tn Flannigan, re (5 Saw. 312; 9 Fed. 

Cas. 239), 63. 
In Foot, re (8 Ben. 228; 9 Fed. Cas. 
355), 320. 



In Foot, re (11 Blatehf. 5.30; 9 Fed. 

Cas. 357), 259. 
In Forbes, re (5 Biss. 510; 9 Fed. Cas. 

394), 327, 328, 377. 
In Ford, re (18 N. B. R. 426; 9 Fed. 

Cas. 425), 195. 
In Forsyth, re (4 Fed. Rep. 629), 147. 
In Forsyth, re (7 N. B. R. 174; 9 Fed. 

Oas. 465), 275, 280, 298. 
In Fortune, re (1 Low. 306; 9 Fed. 

Cas. 500), 306. 
In Fortune, re (1 Low. 554; 12 Fed. 

Cas. 584), 294, 311. 
In Foster, re (2 N. B. R. 232; 9 Fed. 

Cas. 520), 137. 
In Foster, re (3 Ben. 386; 9 Fed. Cas. 

521), 26. 
In Foster, re (6 Ben. 268; 9 Fed. Cas. 

523), 302. 
In Foster, re (18 N. B. R. 64; 9 Fed. 

('as. 524), 54. 
In Fowler, re (8 Ben. 421; 9 Fed. Cas. 

613), 311. 
In Fowler, re (1 Low. 161; 9 Fed. 

Cas. 614), 62, 70, 162, 165. 
In Fowler, re (2 Low. 122; 9 Fed. Cas. 

615), 126, 133, 148. 
In Fowler, re (1 N. B. R. 677; 18 Fed. 

Cas. 714 [1867]), 242. 
In Fox, re (8 Chi. I/eg. News, 313; 9 

Fell. C;is. 02.'?), I'.t4. 
In Fove, re (2 Low. 399; 9 Fed. Cas. 

649), 207, 225, 306. 
In Franklin, re (8 Ben. 233; 9 Fed. 

Cas. 709), 167. 
In Frantzen, re (20 Fed. Rep. 785), 

273. 
In Frazier, re (2 Hughes, 293; 9 Fed. 

Cas. 735), 45. 
In Fredenberg, re (2 Ben. 133; 9 Fed. 

Cas. 740), 163. 
In Freear, re (2 Ben. 467; 9 Fed. Cas. 

738), 288. 
In Freeman, re (4 Ben. 245; 9 Fed. 

Cas. 750), 96, 131. 
In Freudenfels, re (9 Fed. Cas. 810), 

26. 
In Frey, re (9 Fed. Rep. 376), 143. 
In Friedberg, re (19 N. B. R. 302; 9 

Fed. Cas. 815), 145. 
In Friedlob, re (19 N. B. R. 122; 9 

Fed. Cas. 817), 245. 
In Friend, re (3 Woods, 383; 7 Fed. 

Cas. 821), 92. 
In Frisbee, re (4 Law Rep. 483; 9 Fed. 

Cas. 959), 97. 
In Frisbie, re (13 N. B. R. 349; 9 Fed. 

Cas. 961), 173. 
In Frizelle, re (5 N. B. R. 122; 9 Fed. 

Cas. 965), 238. 



Table op Cases Cited. 



xxui 



In Frost, re (6 Biss. 213; 9 Fed. Oas. 

965), 251. 
In Frost, re (3 N. B. R. 73G; 9 Fed. 

Cas. 967), 289. 
In Fuller, re (1 Saw. 243; 9 Fed. Cas. 

978), 45, 354. 
In Funkenstein, re (1 Pac. Law Eep. 

11; 9 Fed. Cas. 1004), 209. 
In Funkenstein, re (3 Saw. 605; 9 Fed. 

Cas. 1005), 251. 
In Furbish, re (2 Hask. 120; 9 Fed. 

Cas. 1007), 195. 
In Galny, re (2 N. B. E. 525; 9 Fed. 

Cas. 1065), 90. 
In Gallagher, re (16 Blatchf. 410; 9 

Fed. Cas. 1082>, 389. 
In Gallinger, re (1 Saw. 224; 9 Fed. 

Cas. 1108), 161. 
In Gallison, re (2 Low. 72; 9 Fed. Cas. 

1009), 106, 129, 294. 
In Garrett, re (2 Hughes, 235; 10 Fed. 

Cas. 47), 46, 90, 156. 
In Garrison, re (5 Ben. 430; 10 Fed. 

Cas. 49), 146. 
In Gay, re (1 Hask. 108; 10 Fed. Cas. 

105), 136, 146. 
In Gaylor, re (10 Fed. Cas. 119), 230. 
In Gebhardt, re (3 N. B. R. 268; 10 

Fed. Cas. 141), 170. 
In George, re (1 Low. 409; 10 Fed. 

Cas. 193), 132, 136, 146. 
In George, re fl Low. 4!>4; 10 Fed. 

Cas. 195), 304. 
In Gerney, re (7 Biss. 414; 11 Fed. 

Cas. 121), 242, 362, 372. 
In Getehell, re (8 Ben. 256; 10 Fed. 

Cas. 268), 166, 167. 
In Ghirardelli, re (1 Saw. 343; 10 Fed. 

Cas. 275), 47. 
In Gies, re (12 N. B. R. 179; 10 Fed. 

Cas. 339), 302. 
In Gilbert, re (1 N. Y. Leg. Obs. 327; 

10 Fed. Cas. 344), 67. 
In Gilbert, re (1 Low. 340; 10 Fed. 

Cas. 344), 175, 177. 
In Gile, re (5 Law. Rep. 224; 10 Fed. 

Cas. 369 [1842]), 169. 
In Gilley, re (2 Low. 250; 10 Fed. 

Cas. 390), 225. 
In Gimke, re (4 N. B. E. 92; 11 Fed. 

Cas. 115), 100. 
In Glaser, re (8 Ben. 180; 10 Fed. Cas. 

464), 42. 
In Glaser, re (2 N. B. R. 398; 10 Fed. 

Gas. 467), 179. 
In Goedde, re (6 N. B. R. 295; 10 Fed. 

Cas. 524), 78. 
In Gold Mt. M. Co., re (3 Saw. 601; 10 

Fed. Cas. 556), 334. 



In Golder, re (2 Hask. 28; 10 Fed. Cas. 

547) 296. 
In Goldschmidt, re (3 Ben. 379; 10 

Fed. Cas. 564), 58. 
In Goldstein, re (52 How. Pr. 426; 10 

Fed. Cas. 569), 42. 
In Goodfellow, re (1 Low. 510; 11 Fed. 

Cas. 594), 51, 63, 137. 
In Goodman, re (5 Biss. 401; 10 Fed. 

Cas. 601), 64. 
In Goodridge, re (2 N. B. R. 324; 10 

Fed. Cas. 613), 137. 
In Goodwin, re (5 Dill. 140; 10 Fed. 

Cas. 617), 296. 
In Goold, re (2 Hask. 34; 10 Fed. Cas. 

761), 74. 
In Gorham. re (9 Biss. 23; 10 Fed. 

Cas. 823), 66, 70. 
In Grady, re (3 N. B. R. 227; 10 Fed. 

Cas. 904), 72. 
In Graham, re (8 Ben. 419; 10 Fed. 

Cas. 913), 179. 
In Graham, re (2 Biss. 449; 10 Fed. 

Cas. 914), 90. 
In Granger, re (8 N. B. R. 30; 10 Fed. 

Cas. 958), 232, 296. 
In Grant, rp (2 N. B. R. 106; 10 Fed. 

Cas. 973), 209. 
In Grant, re (6 Law Rep. 158; 10 Fed. 

Cas. 970 [1843]), 296. 
In Grant, re (2 Story, 312; 10 Fed. 

Cas. 973), 219. 
In Graves, re (9 Fed. Rep. 816), 238, 

299. 
In Graves, re (24 Fed. Eep. 550), 134, 

143. 
In Great Western Tel. Co., re (5 Biss. 

1059; 10 Fed. Cas. 1053), 167, 169, 

191. 
In Greaves, re (5 Law Eep. 25; 10 

Fed. Cas. 1067 [1842]), 248. 
In Green, re (7 Biss. 338; 10 Fed. Cas. 

1084), 292. 
In Green Pond R. Co., re (13 N. B. R. 

118; 10 Fed. Cas. 1178), 47, 251. 
In Greenbnnin. rn (i Chi. L. J. 599; 10 

Fed. Cas. 1156), 95, 119, 121. 
In Greenfield, re (5 Ben. 552; 10 Fed. 

Cas. 1162), 29. 
In Greenfield, re (6 Blatchf. 287; 10 

Fed. Cas. 1165), 127. 
In Greenville & C. R. Co., re (5 Chi. 

Leg. News, 124; 10 Fed. Cas. 

1180), 30. 
In Grefe, re (2 N. B. R. 329; 10 Fed. 

Cas. 1184), 132. 
In Gregg, re (1 Hask. 173; 10 Fed. 

Cas. 1186), 351, 395. 
In Gregg, re (4 N. B. R. 456; 10 Fed. 

Cas. 1191), 362. 



XXIV 



Table of Cases Cited. 



In Grieves, re (15 Alb. L. J. 167; 11 1 In Hannahs, re (8 Ben. 475; 11 Fed. 



Fed. Cas. 3), 145, 



Gas. 445), 144. 



In Griffen, re (2 Ben. 209; 11 Fed. In Hannahs, re (8 Ben. 553; 11 Fed. 



Cas. 4), 177. 
In Griffin, re KA N. B. R. 254; 11 Fed. 

Cas. 5), 90. 
In Griffin, re (8 Ben, 388; 11 Fed. Cas. 

5), 117. 
In Griffith, re (18 N. B. R. 510; 11 

Fed. Cas. 38). 67. ■ 
In Grinnel, re (9 N. B. R. 137; 11 Fed. 

Cas. 50), 351. 
In Groome, re (1 Fed. Rep. 464), 134, 

169. 
In Gutwillig. re (N. Y. Law .T. [De- 
cember 6, 1898]), 376. 
In Haake, re (2 Saw. 231; 11 Fed. 

Gas. 134), 301. 
In Haas, re (8 N. B. R. 189; 11 Fed. 

Gas. 138), 209. 
In Hadley, re (12 N. B. R. 366; 11 

Fed. Cas. 148), 160, 250. 
In Hafer, re (1 N. B. R. 547; 11 Fed. 

Cas. 152), 91. 
In Hagan, re (6 Ben. 407; 11 Fed. Cas. 

154), 301. 
In Hahnlen, re (1 Penn. L. J. 10; 11 

Fed. Cas. 156), 400. 
In Hale, re (18 N. B. R. 335; 11 Fed. 

Cas. 180), 381. 
In Hale, re (19 N. B. R. 330; 11 Fed. 

Cas. 181), 40. 
In Hall, re (1 Dill. 585; 11 Fed. Cas. 

199), 189. 
In Hall, re (2 Hughes, 411; 11 Fed. 

Cas. 199), 86. 
In Hall, re (2 N. B. R. 192; 11 Fed. 

Cas. 201), 245. 
In Hallie. re (7 Ben. 182; 11 Fed. Cas. 

290), 231. 
In Hamburger, re (12 N. B. R. 277; 11 

Fed. Cas. 317), 311. 
In Hamburger, re (8 Ben. 189; 11 Fed. 

Cas. 317), 314. 
In Hambright, re (2 N. B. R. 498; 11 

Fed. Cas. 314), 351. 
In Hamilton, re (1 Fed. Rep. 800), 286, 

288. 
In Hamlin, re (8 Biss. 122; 11 Fed. 

Gas. 369), 67, 111, 125. 
In Hammond, re (1 Low. 381; 11 Fed. 

Cas. 380), 99, 146. 
In Handell, re (15 N. B. R. 71; 11 Fed. 

Cas. 420), 313. 
In Handlin, re (3 Dill. 290; 11 Fed. 

Cas. 421) 91. 
In Hanibel, re (15 N. B. B. 233; 11 

Fed. Cas. 431), 158, 160. 
In Hanna, re (4 Ben. 469; 11 Fed. Cas. 

436), 400. 



Cas. 446), 119. 
In Hanson, re (2 N. B. B. 211; 11 

Fed. Gas. 463), 130. 
In Hapgood, re (2 Low. 200; 11 Fed. 

Cas. 473), 271. 
In Hapgood, re (2 Low. 491; 12 Fed. 

Cas. 260), 317. 
In Harbough, re (15 N. B. R. 246; 11 

Fed. Cas. 476), 71. 
In Hardin, re (Fed. Cas. No. 6048),. 

299. 
In Hardin, re (1 Hask. 163; 11 Fed. 

Cas. 488), 298, 299. 
In Hardison, re (4 Law Rep. 255; 11 

Fed. Cas. 498 [1842]), 167. 
In Harlow, re (10 N. B. R. 280; 11 

Fed. Cas. 528), 348. 
In Harper, re (6 Chi. Leg. News, 279; 

11 Fed. Cas. 572), 141. 
In Harris, re (6 Ben. 375; 11 Fed. Cas. 

611), 255. 
In Harrison, re (22 Fed. Rep. 528),. 

128. 
In Hartel, re (7 N. B. B. 559; 11 Fed. 

Cas. 697), 237. 
In Harthill, re (4 Ben. 448; 11 Fed. 

Cas. 704), 382. 
In Harthorn, re (4 N. B. R. 103; 11 

Fed. Cas. 705), 315. 
In Hartough, re (3 N. B. R. 422; 11 

Fed. Cas. 707), 70. 
In Hasbrouck, re (1 Ben. 402; 11 Fed. 

Gas. 767), 202. 
In Haskell, re (4 N. B. R. 558; 11 Fed. 

Cas. 770), 192. 
In Hatcher, re (1 N. B. R. 390; 11 

Fed. Gas. 814), 170. 
In Hathorn, re (2 Woods, 73; 11 Fed. 

Cas. 822), 43. 
In Hatje, re (6 Biss. 436; 11 Fed. Cas. 

823), 163, 292, 306. 
In Hauck, re (17 N. B. R. 158; 11 Fed. 

Cas. 831), 274. 
In Havens, re (8 Ben. 309; 11 Fed. 

Cas. 847), 396. 
In Havens, re (1 N. B. R. 485; 11 

Fed. Cas. 849), 208. 
In Hay, re (6 Chi. Leg. News, 256; 11 

Fed. Cas. 886), 395. 
In Hay, re (2 Low. 180; 11 Fed. Gas.. 

887), 00. 
In Hayden, re (7 N. B. B. 192; 11 Fed. 

Cas. 897), 99. 
In Haynes. re (2 N. B. R. 227; 11 Fed. 

Cas. 914), 206, 319. 
In Hazenes, re (4 Dill. 549; 11 Fed. 
Cas. 941), 248. 



Table of Cases Cited. 



XXV 



In Heath, re (7 N. B. R. 448; 11 Fed. 

Cas. 975), 176. 
In Heck, re (19 N. B. R. 299; 12 Fed. 

Gas. 113), 290. 
In HefEron, re (6 Biss. 156; 11 Fed. 

Cas. 1020), 254. 
In Heller, re (3 Biss. 153; 11 Fed. Cas. 

1051), 260. 
In Heller, re (5 N. B. R. 46; 11 Fed. 

Cas. 1052), 97. 
In Heller, re (9 Fed. Rep. 373), 139. 
In Heller, re (11 Fed. Cas. 1052), 171. 
In Henderson, re (9 Fed. Rep. 196), 

160 247 252. 
In Heukel, 're (2 Saw. 305; 11 Fed. 

Cas. 1124), 85. 
In Hennocksburgh, re (6 Ben. 150; 11 

Fed. Cas. 1136), 293. 
In Henry, re (9 Ben. 449; 11 Fed. Cas. 

1148), 125. 
In Herdic, re (1 Fed. Rep. 242), 132. 
In Herdic, re (40 Fed. Rep. 360), 369. 
In Herpich, re (7 Biss. 387; 12 Fed. 

Cas. 40), 343. 
In Herrick, re (7 N. B. R. 341; 12 

Fed. Cas. 41), 148. 
In Herrick, re (13 N. B. E. 312; 12 

Fed. Cas. 42), 318, 320. 
In Herrick, re (7 N. B. R. 341; 12 Fed. 

Cas. 43), 238. 
In Herrman, re (9 Ben. 436; 12 Fed. 

Cas. 19) 124. 
In Herrman, re (4 Ben. 126; 12 Fed. 

Cas. 53), 230. 
In Hertzog, re (18 N. B. R. 526; 12 

Fed. Cas. 59),' 299. 
In Hester, re (5 N. B. R. 285; 12 Fed. 

Cas. 68), 92. 
In Heusted, re (5 Law Rep. 510; 12 

Fed. Cas. 71 [1843]), 162. 
In Heydett, (8 N. B. R. 332; 12 Fed. 

Cas. 86), 159. 
In Heys, re (1 Ben. 333; 12 Fed. Cas. 

91), 225. 
In Hezekiah, re (2 Dill. 551; 12 Fed. 

Cas. 92), 91. 
In Hicks, re (2 Fed. Rep. 851), 180, 

202. 
In Hill, re (5 Fed. Rep. 448), 97. 
In Hill, re (2 N. B. R. 140; 12 Fed. 

Cas. 49) 40. 
In Hill, re (1 Ben. 321; 12 Fed. Cas. 

144), 97, 163, 202, 244, 245. 
In Hill, re (2 Ben. 136; 12 Fed. Cas. 

146), 135. 
In Hill, re (2 Ben. 349; 12 Fed. Cas. 

147), 136. 
In Hinds, re (3 N. B. R. 351; 12 Fed. 

Cas. 202), 348. 



In Hines, re (7 Ben. 427; 12 Fed. Cas. 

1136), 252. 
In Hinsdale, re (7 Ben. 9; 12 Fed. Cas. 

207), 121. 
In Hoagland, re (18 N. B. R. 530; 12 

Fed. Cas. 251), 310. 
In Hodges, re (11 N. B. R. 369; 12 

Fed. Cas. 281), 35. 
In Holbrook, re (2 Low. 259; 12 Fed. 

Cas. 317), 237, k:91. 
In Holgate, re (8 Ben. 255; 12 Fed. 

Cas. 335), 149. 
In Holland, re (2 Hask. 90; 12 Fed. 

Cas. 335), 56. 
In Holland, re (8 N. B. R. 190; 12 

Fed. Cas. 337), 241. 
In Holland, re (12 N. B. R. 403; 12 

Fed. Cas. 338), 382. 
In HoUenshade, re (2 Bond, 210; 12 

Fed. Cas. 346), 141. 
In Hollister, re (3 Fed. Rep. 452), 74, 

295. 
In Holmes, re (14 N. B. R. 493; 12 

Fed. Cas. 392), 305. 
In Holmes, re (8 Ben. 74; 12 Fed. Cas. 

393), 116. 
In Holmes, re (1 N. Y. Leg. Obs. 211; 

12 Fed. Cas. 401), 349, 409. 
In Holmes, re (14 N. B. B. 209; 12 

Fed. Cas. 402), 127. 
In Hoist, re (11 Fed. Rep. 856), 171. 
In Holt, re (3 N. B. R. 241; 12 Fed. 

Cas. 428), 205. 
In Hook, re (2 Dill. 92; 12 Fed. Cas. 

453). 86. 
In Hook, re (11 N. B. R. 282; 12 Fed. 

Cas. 463), 298. 
In Hoole, re (3 Fed. Rep. 496), 195, 

215, 348. 
In Hopkins, re (18 N. B. R. 490; 12 

Fed. Cas. 491), 162. 
In Hortou, re (5 Ben. 562; 12 Fed. CaS. 

536), 239. 
In Hosie, re (7 N. B. R. 601; 12 Fed. 

Cas.. 520), 316. 
In Houghton, re (4 Law Rep. 482; 12 

Fed. Cas. 586 [1842]), 166. 
In Houghton, re (2 Low. 243; 12 Fed. 

Cas. 588), 207. 
In Houghton, re (2 Low. 328; 12 Fed. 

Cas. 589), 129, 132. 
In Housberger, re (2 Ben. 504; 12 Fed. 

Cas. 596), 339. 
In House, re (1 N. Y. Leg. Obs. 348; 

12 Fed. Cas. 598 [1843]), 262. 
In How, re (18 N. B. R. 565; 12 Fed. 

Cas. 621), 214. 



XXVI 



Table of Cases Cited. 



In Howard, re (4 N. B. R. 571; 12 

Fed. Gas. 625), 319. 
In Howard, re (6 N. B. R. 372; 2 Fed. 

Cas. 628), 295. 
In Howes, re (7 Ben. 102; 12 Fed. 

Cas. 712), 382. 
In Hoyt, i-e (3 N. B. R. 55; 12 Fed. 

Gas. 760), 218. 
In Hubbard, re (1 Low. 190; 12 Fed. 

Cas. 775), 232. 
In Hubble, re (9 N. B. R. 523; 12 Fed. 

Cas. 791), 313. 
In Huddell, re (47 Fed. Rep. 206), 151. 
In Hufnagel, re (12 N. B. R. 554; 

12 Fed. Cas. 819), 285, 294, 334. 
in Hughes, re (2 Ben. 85; 12 Fed. Gas. 

829), 284. 
In Hughes, re (8 Biss. 107; 12 Fed. 

Cas. 832), 94. 
In Hughes, re (11 N. B. R. 452; 12 

Fed. Cas. 833), 336. 
In Hull, re (14 Blatchf. 257; 12 Fed. 

Cas. 858), 335. 
In Hulst, re (7 Ben. 17; 12 Fed. Cas. 

864), 382. 
In Hulst, re (7 Ben. 40; 12 Fed. Cas. 

867), 180. 
In Hunt, re (26 Fed. Rep. 739), 143. 
In Hunt, re (2 N. B. R. 539; 12 Fed. 

Gas. 898), 359. 
In Hunt, re (5 N. B. R. 433; 12 Fed. 

Cas. 900), 241. 
In Hunt, re (5 N. B. R. 499; 12 Fed. 

Gas. 902), 83. 
In Hunt, re (17 N. B. R. 205; 12 Fed. 

Cas. 902), 208. 
In Hurst, re (13 N. B. R. 455; 12 

Fed. Gas. 1020), 121. 
In Hussey, re (2 Hask. 244; 12 Fed. 

Gas. 1052), 92. 
In Hussman, re (2 N. B. R. 737; 12 

Fed. Gas. 1073), 138. 
In Hutto, re (3 N. B. R. 787; 12 

Fed. Cas. 1094), 326. 
In Hyde, re (6 Fed. Rep. 587), 404. 
In Hyde, re (6 Fed. Rep. 869), 190. 
In Hyman, re (3 Ben. 28; 12 Fed. 

Cas. 1134), 203. 
In Hyman, re (8 N. B. R.; 12 Fed. 

Gas. 1135), 116. 
In Independent Ins. Go., re (2 Low. 

187; 13 Fed. Gas. 20), 287. 
In Independent InS. Co., re (Holmes, 

103; 13 Fed. Gas. 13), 65. 
In Indianapolis; G. & L. R. Co., re' (5 

Blss. 287; 13 Fed. Cas. 27), 65. 
In Iron Mountain Co., re (9 Blatchf. 

320; 18 Fed. Cas. 97), 108. 
In Irons, re (18 N. B. R. 95; 13 Fed. 

Cas. 99), 305. 



In Irving, re (8 Ben. 463; 8 Fed. Cas. 

108), 34. 
In Irving, re (17 N. B. R. 22; 13 Fed. 

Cas. 110), 81. 
In Isaacs, re (3 Saw. 35; 13 Fed. Cas. 

148), 77. 
In Isador, re (2 Ben. 123; 13 Fed. 

Cas. 67), 132. 
In Israel, re (3 Dill. 511; 13 Fed. Cas. 

175), 251. 
In Ives, re (5 Dill. 146; 13 Fed. Cas. 

181), 147. 
In Ives, re (18 N. B. R. 28; 13 Fed. 

Cas. 183), 311. 
In Jackson, re (7 Biss. 280; 13 Fed. 

Cas. 191), 210. 
In Jackson, re (2 N. B. R. 508; 13 

Fed. Cas. 203), 83. 
In Jackson I. M. Co., re (15 N. B. R. 

438; 13 Fed. Cas. 260), 263. 
In Jacobs, re (18 N. B. R. ^8; 13 Fed. 

Cas. 271), 119. 
In Jacoby, re (1 N. B. R. 118; 13 Fed. 

Cas. 279), 102. 
In Jacoby, re (13 Fed. Cas. 280), 230^. 
In Janeway, re (8 Ben. 267; 13 Fed. 

Cas. 347), 119. 
In Janeway, re (4 N. B. R. 100; 13 

Fed. Gas. 348), 352. 
In Jaycox, re (13. Blatchf. 70; 13 Fed. 

Cas. 393), 296. 
In Jaycox, re (7 N. B. R. 140; 13 Fed. 

Gas. 308), 291. 
In .Jaycox, re (7 N. B. R. 303; 13 Fed. 

Gas. 399), 226. 
In Jaycox, re (8 N. B. R. 241; 13 Fed. 

Cas. 409), 234. 
In Jefferson Ins. Co., re (2 Hughes, 

255; 13 Fed. Gas. 432), 255. 
In Jenks, re (15 N. B. R. 301; 13 Fed! 

Cas. 535), 306. 
In Jessup, re (19 Fed. Rop. 94), 138. 
In Jewett, re (3 Fed. Rep. 503), 139,- 

144. 
In Jewett, re (1 N. B. R. 491; 13 Fed. 

Gas. 583), 79. 
In Jewett, re (7 Biss. 242; 13 Fed.- 

Gas. 584), 251. 
In Jewett, re (7 Biss. 473; 13 Fed.- 
Gas. 591; 7 Biss. 328; 13 Fed. Gag* 
585), 67. 
In Jewett, re (1 N. B. R. 495; 13 Fed* 

Cas. 594), 79. 
In Johnson, re (2 Low. 120; 13 Fed. 

Cas. 721), 263. 
In Johnston, re (8 Ben. 191; 13 Fed. 

Cas. 870), 223. 
In Johnston, re (14 N. B. R. 567- 13, 

Fed. Cas. 881), 181. 
In Jonas, re (16 N. B. R. 452; 13 Fed. 
Gas. 923), 162. 



Table of Cases Cited. 



XXVIl 



In Jones, re (6 Biss. 68; 13 Fed. Cas. 

927), 295. 
In Jones, re (2 Dill. 343; 13 Fed. Cas. 

931), 90, 92. 
In Jones, re (2 Low. 451; 13 Fed. Gas. 

932), 141. 
In Jones, re (2 N. B. R. 59; 13 Fed. 

Cas. 933), 211. 
In Jones, re (4 N. B. R. 347; 13 Fed. 

Cas. 934), 390. 
In Jones, re (6 N. B. R. 336; 13 Fed. 

Cas. 935), 178. 
In Jones, re (7 N. B. R. 506; 13 Fed. 

Cas. 935), 166. 
In Jordan, re (2 Fed. Rep. 319), 286, 

288 
In Jordan, re (8 N. B. R. 180; 13 Fed. 

Cas. 1079; 10 N. B. R. 427; 13 

Fed. Cas. 1082), 90, 353. 
In Jordan, re (9 N. B. R. 416; 13 Fed. 

Cas. 1121), 263. 
In Jorey, re (2 Bond, 330; 13 Fed. 

Cas. 112!2), 145. 
In Joselyn. re (2 Biss. 235; 13 Fed. 

Cas. 1159), 344. 
In Joseph, re (24 Fed. Rep. 137), 115, 

192. 
In Joseph, re (2 Woods, 390; 13 Fed. 

Cas. 1124), 242. 
In Jndkins. re (2 Hushes, 401; 13 Fed. 

Cas. 1193), 83, 168. 
In Judson, re (2 Ben. 210; 14 Fed. Cas. 

2), 179. 
In Kahley, re (2 Biss. 383; 14 Fed. 
• Cas. 71), 324, 364. 
InKallish. re (Deady, 575; 14 Fed. 

Cas. 93), 96. 
In Kansas City S., etc., Co.. re (9 N. 

B. R. 76; 14 Fed. Cas. 128), 263. 
In Kasson, re (4 Law Rep. 489; 14 

Fed. Cas. 138 [1842]). 93. 
In Kaufman, re (8 Ben. 394; 14 Fed. 

Cas. 153), 235. 
In Kaufman, re (19 N. B. R. 283; 14 

Fed. Cas. 154). 362. 
In Keach, re (1 Low. 335; 14 Fed. 

Cas. 156), 146. 
In Kean, re (2 Hughes, 322; 14 Fed. 

Cas. 157), 89. 
In Keefer, re (4 N. B. R. 389; 14 Fed. 
. Cas. 172), 131, 140. 
In Keeler, re (10 N. B. R. 419; 14 Fed. 

Cas. 176), 250. 
In Koiler, re (18 N. B. R. 10; 14 

Fed. Cas. 210), 249. 
In Keilpr, re (18 N. B. R. 36; 14 Fed. 

Cas. 216), 118, 119. 
In Keller, re (18 N. B. R. 331; 14 Fed. 

Cas. 233), 118. 



In Kelley, re (19 N. B. R. 326; 14 

Fed. Cas. 236), 71. 
In Kelly, re (3 Fed. Rep. 219), 120. 
In Kelly, re (18 Fed. Rep. 528), 310. 
In Kempner (6 N. B. R. 521; 14 Fed. 

Cas. 290), 391. 
In Kennedy, re (7 N. B. R. 337; 14 

Fed. as. 308), 198. 
In Kenuedy, re (14 Fed. Cas. 309), 

313. 
In Kerosene Oil Co., re (3 Ben. 35; 14 

Fed. Cas. 379), 41. 
In Kerosene Oil Co., re (6 Blatchf. 

521; 14 Fed. Cas. 380), 41. 
In Kerr, re (2 N. B. R. 388; 14 Fed. 

Cas. 385), 330. 
In Kerr, re (9 N. B. R. 566; 14 Fed. 

Cas. 386), 82. 
In Ketchum, re (1 Fed. Rep. 815), 73. 
In Ketchum, re (1 Fed. Rep. 838), 

231, 387. 
In Keyser, re (9 Ben. 324; 14 Fed. 

Cas. 442) 231. 
In Kimball, 're (2 Ben. 38; 14 Fed. 

Cas. 474), 174. 
In Kimball, re (2 Ben. 554; 14 Fed. 

Cas. 476), 102. 
In Kimball, re (6 Blatchf. 299; 14 

Fed. Cas. 478), 154, 
In Kimball, re (1 N. Y. L. J. 230; 14 

Fed. Cas. 480), 218. 
In King, re (3 Fed. Rep. 839), 217. 
In King, re (4 Biss. 319; 14 Fed. Cas. 

503), 284, 314. 
In King, re (10 N. B. R. 104; 14 Fed. 

Cas. 506), 256. 
In King, re (1 N. Y. Leg. Obs. 22; 14 

Fed. Cas. 507 [1842]), 128. 
In King, re (1 N. Y. Leg. Obs. 276; 

14 Fed. Cas. 509), 250. 
In Kingsbury, re (3 N. B. R. 317; 14 

Fed. Cas. 582), 241. 
In Kingsley, re (6 Ben. 300; 14 Fed. 

Cas. 587), 175. 
In Kingsley, re (1 Low. 216; 14 Fed. 

Cas. 587), 298, 299. 
In Kingsley, re (16 N. B. R. 301; 14 

Fed. Cas. 590), 173. 
In Kingsley, re (Fed Cas. No. 7819), 

299. 
In Kinkead, re (3 Biss. 405; 14 Fed. 

Cas. 599), 70, 77. 
In Kinne, re (5 Fed. Rep. 59), 232. 
In Kinsman, re (1 N. Y. Leg. Obs. 

309; 14 Fed. Cas. 643 [18431). 25. 
In Kintzing, re (3 N. B. R. 217; 14 

Fed. Cas. 644), 33. 
In Kintzinger, re (19 N. B. R. 152; 

14 Fed. Cas. 709), 258, 293, 3C0, 

301. 



:xxvm 



Table of Cases Cited. 



In Kipp, re (4 N. B. R. 593; 14 Fed. 

Cas. 653), 239. 
In Klein, re (1 How. 277, n.; 14 Fed. 

Cas. 716), 49. 
In Klein, re (2 N. Y. Leg. Obs. 185; 

14 Fed. Cas. 719), 49. 
In Knight, re (2 Biss. 518; 14 Fed. 

Cas. 752), 43, 78. 
In Knoepfel, re (1 Ben. 330; 14 Fed. 

Cas. 782), 225, 230, 300. 
In Knott, re (14 Fed. Cas. 785), 399. 
In Kock, re (1 N. B. R. 549; 14 Fed. 

Cas. 832), 173, 175. 
In Kohlsaat, re (18 N. B. R. 570; 14 

Fed. Cas. 833), 40, 125. 
In Kraft, re (3 Fed. Bep. 892), 129. 
In Kraft, re (4 Fed. Rep. 523), 144. 
In Krogman, re (5 N. B. R. 116; 14 

Fed. Cas. 866), 114. 
In Krueger, re (2 Low. 66; 14 Fed. 

Cas. 868), 70. 
In Krueger, re (2 Low. 182; 14 Fed. 

Cas. 870), 178. 
In Krum, re (7 Ben. 5; 14 Fed. Cas. 

872), 339. 
In Kurth, re (17 N. B. R. 573; 14 

Fed. Cas. 879), 307. 
In Kvler. re (2 Ben. 414; 14 Fed. Cas. 

887), 27, 178. 
In Lacey, re (12 Bltaclif. 322; 14 Fed. 

Cas. 906), 254. 
In Lacey, re (4 N. B. R. 62; 14 Fed. 

Cas. 920), 325. 
In Laehemeyer, re (18 N. B. R. 270; 

14 Fed. Cas. 914). 292. 
In Lady Bryan Min. Co., re (6 N. B. 

R. 252; 14 Fed. Cas. 928), 42, 96. 
In Lady Bryan Min. Co., re (6 N. B. 

R. 252; Fed. Cas. No. 7980), 411, 

412. 
In Lains, re (16 N. B. R. 168; 14 Fed. 

Cas. 941), 307. 
In Lake, re (3 Biss. 204; 14 Fed. Cas. 

944), 164, 385, 389. 
In Lake Superior Ship Canal R. I. Co., 

re (7 N. B. R. 376; 14 Fed. Cas. 

951), 206, 210. 
In Lalor, re (19 N. B. R. 353; 14 Fed. 

Cas. 962), 255. 
In Lambert, re (2 N. B. R. 426; 14 

Fed. Cas. 1045), 215. 
In Lambson, re (2 Hughes, 233; 14 

Fed. Cas. 1047). 93. 
In Lammer, re (7 Biss. 269; 14 Fed. 

Cas. 1048), 87. 
In Lane, re (2 Low. 305; 14 Fed. Cas. 

1009), 378. 
In Lane, re (3 Ben. 98; 14 Fed. Cas. 
1069), 201. 



In Lane, re (2 Low. 333; 14 Fed. Cas. 

1070), 124, 281, 288. 
In Lanier, re (2 N. B. R. 154; 14 Fed. 

Cas. 1116), 174. 
In Lang, re (2 N. B. R. 480; 14 Fed. 

Cas. 1097), 190. 
In Langdon, re (2 Low. 387; 14 Fed. 

Cas. 1099), 121. 
In Lathrop, re (3 Ben. 490; 14 Fed. 

Cas. 1170), 292, 298. 
In Lathrop, re (3 N. B. R. 46; 14 

Fed. Cas. 1175), 135. 
In Lathrop, re (5 N. B. R. 199; 14 

Fed. Cas. 1173), 320. 
In Lathrop, re (4 N. B. R. 93; 14 Fed. 

Cas. 1179), 179. 
In Lawrence, re (10 Ben. 4; 15 Fed. 

Cas. 21), 58, 163. 
In Lawson, re (2 N. B. R. 113; 15 Fed. 

Cas. 88), 208. 
In Lawson, re (2 N. B. R. 54; 15 Fed. 

Cas. 87), 89. 
In Leachman, re (1 N. B. R. 391; 15 

Fed. Cas. 97), 174. 
In Leavitt. re (1 Hask. 194; 15 Fed. 

Cas. 122). 77. 137. 141. 
In Lee, re (14 N. B. R. 89; 15 Fed. 

Cas. 135), 241. 
In Leeds, re (1 N. B. R. 521; 15 Fed. 

Cas. 239), 59. 
In Le Favour, re (8 Ben. 43; 15 Fed. 

Cas. 244), 251. 
In Leibenstein, re (4 Chi. Leg. News, 

309; 15 Fed. Cas. 259), 42. 
In Leighton, re (4 Ben. 457; 15 Fed. 

Cas. 265), 26. 
In Leland. re (5 Ben. 168; 15 Fed. 

Cas. 275), 29. 
In Leland. re (6 Ben. 175; 15 Fed. 

Cas. 278), 181, 241. 
In Leland, re (8 Ben. 204; 15 Fed. 

Cas. 290), 69, 179. 205. 
In Leland, re (10 Blatchf. 503; 15 Fed. 

Cas. 292), 330. 
In Leland. re (14 Blatchf. 240; 15 

Fed. Cas. 290), 239. 
In Leonard, re (4 N. B. R. 562; 15 

Fed. Cas. 331), 161. 
In Ijeppein, re (1 Penn. L. J. 223; 15 

Fed. Cas. 353), 344. 
In Leszynsky, re (3 Ben. 487; 15 Fed. 

Cas. 397), 293. 
In Letchworth, re (18 Fed. Rep. 822), 

235. 
In Levi, re (2 Ben. 169; 15 Fed. Cas. 

431), 128. 
In Levin, re (7 Biss. 231 ; 15 Fed. Cas. 
421), 132. 



Table of Cases Cited. 



XXII 



In Levy, re (1 Byn. 4M- 19 Fed. 

Cas. 425), 179. 
Ill Levy, re (1 Ben. 4'JC; 15 Fed. Cas. 

427), 174, 181. 
In Levy, re (2 Ben. IGO; l."> Fetl. Ciis. 

431), 150. 
In Levy, re (1 X. B. R. lO,",; 15 Fed. 

Cas. 432), 178. 
In Levy, re (1 N. B. R. 184; 15 Fed. 

Cas. 433), 243. 
In Lewis, re (4 Ben. 67; 15 Fed. Cas. 

453), 179. 
In Lewis, re (2 Hnghes, 320; 15 Fed. 

Cas. 455). 76. 
In Lewis, re (14 N. B. R. 144; 15 Fed. 

Cas. 456), 119. 
In Linforth. re (87 Fed. Rep. 386 

[1898]), 235. 
lu Linforth, re (4 Saw. 370; 15 Fed. 

Cas. 558), 391. 
In Litchfield, re (5 Fed. Rep. 47). 79. 
In Litchfield, re (1:! Fed. Rep. 863), 

35, 104. 
In Little, re (3 Ben. 25; 15 Fed. Cas. 

599), 26. 
In Little, re (19 X. B. R. 2.^4: 15 Fed. 

Cas. 600), 117, 
In Littlefield. re (1 Low. 331; 15 Fed. 

Cas. 624). 146, 172. 
Tn Lloyd, re (11 Fed. Rep. 586). 405. 
In Lloyd, re (22 Fed. Rep. ZS). 79. 
In Lloyd, re (15 X. B. R. 257; 15 Fed. 

Cas. 711), 232. 251. 
In Lloyd, re (15 Fed. Cas. 717), 122. 
In Locke, re (1 Low. 293; 15 Fed. 

Cas. 734). 140. 
In I/oder, re (4 Ben. 123; 15 Fed. Cas. 

777), 231. 
In Long, re (26 Lee. Int. 349; 15 

Fed. Cas. 812). 389. 
In Longest, re (7 Biss. 477; 15 Fed. 

Cas. 833). 129. 
In Longfellow, re (?. Hask. 221; 15 

Fed. Cas. 834), 353. 
In Lord, re (3 N. B. R. 253; 15 Fed. 

Cas. 872). 174. 
In Lord, re (5 N. B. R. 318; 15 Fed. 

Cas. 873). 260. 
In Lord, re (5 Law Rep. 2.58: 15 Fed. 

Cas. 872 [1842]), 139, 157. 
In Loring. re (Holmes, 483; 15 Fed. 

Cas. 895), 243. 
In Louis, re (3 Ben. 153; 15 Fed. Cas. 

940), 366. 
In Louis, re (7 Beu. 481; 15 Fed. Cas. 

942), 121. 
In Lount. re (11 N. B. R. 315; 15 Fed. 

Cas. 988), 179. 
In Low, re (11 N. B. R. 221; 15 Fed. 

Cas. 1015), 77. 



In Lowe, re (19 Fed. Rep. 589), 374. 
In Lowenstein et al., re (3 Ben. 422; 

15 Fed. Cas. 1025), 303, 377. 
In Lowerre, re (1 Ben. 4()6; 15 Fed. 

Cas. 1030), 232. 
In Lucius Hart Mfg. Co., re (17 N. B. 

R. 459; 15 Fed. Cas. 1079), 311. 
In Ludlow, re (1 N. Y. Leg. Obs. 322; 

15 Fed. Cas. 1079 [1843)), 90, 395. 
In Ludwigson, re (3 Woods, 13; 15 

Fed. Cas. 1102), 399, 400. 
In Lumpkin, re (2 Hughes, 175; 15 

Fed. Cas. 1110). 87. 
In Lynch, re (7 Ben. 26; 15 P^ed. Cas. 

1171), 311. 
In Lyon, re (1 N. B. R. Ill; 15 Fed. 

Cas. 1179), 176. 
In Lyon, re (7 N. B. R. 182: 15 Fed. 

Cas. 1180), 396. 
In Lyon, re (2 Saw. 524; 15 Fed. Cas. 

1192), 64. 
In McAdam, re (4 Saw. 119; 15 Fed. 

Cas. 1201), 251. 
In McBride, re (15 Fed. Cas. 1218), 

204. 
In McBrien. re (2 Ben. 513: 15 Fed. 

Cas. 1218), 175. 
In McBrien. re (3 Ben. 481; 15 Fed. 

Cas. 1219), 175. 
In McCarthy, re (15 Alb. L. J. 293; 15 

Fed. Cas. 1252), 146. 
In MeClellan, re (1 N. B. R. 389; 15 

Fed. Cas. 1268), 400. 
In McConnell, re (9 N. B. B. 387; 15 

Fed. Cas. 1297), 235. 
In McDonald, re (14 N. B. R. 477; 16 

Fed. Cas. 36), 129, 242, 297. 
In McDonough. re (3 N. B. R. 221: 16 

Fed. Cas. 68), 264, 275. 
In McDowell, re (6 Biss. 193; 16 Fed. 

Cas. 69), 116. 
In MrBwen, re (6 Biss. 294; 16 Fed. 

Cas. 82), 78, 79. 
In McFarland, re (16 Fed. Cas. 89 

[1842]), 144. 
In McFarland. re (10 N. B. R. 31; 16 

Fed. Cas. 89), 75. 
In McGilpon, re. (3 Biss. 144; 16 Fed. 

Cas. 107), 106, 402. 
In McGlyn, re (2 Low. 127; 16 Fed. 

Cas. 122), 199, 210. 
In McGrath, re (5 Ben. 183; 16 Fed. 

Cas. 126), 312. 
In McGuire, re (8 Ben. 452; 16 Fed. 

Cas. 133), 293. 
In Mclntire, re (2 Ben. 345; 16 Fed. 

Cas. 150), 130, 150. 
In Mcintosh, re (2 N. B. R. 506; 16 

Fed. Cas. 151), 232. 



XXX 



Table of Cases Cited. 



In McKeon, i-o (7 Ben. 513; 16 Fed. 

Cas. 207), 254. 
In McKenna, re (0 Peel. Rep. 27), 386, 

408. 
In McKibben, re (12 N. B. R. 97; 16 

Fed. Cas. 210), 56, 382. 
In McKinley, re (7 Ben. 562; 16 Fed. 

Cas. 218), 253. 
In McKinney, re (15 Fed. Cas. 912), 

290. 
In McNab & H. M. Co., re (18 N. B. 

R. 388; 16 Fed. Cas. 313), 119. 
In McLean, re (15 N. B. R. 333; 16 

Fed. Cas. 240), 75. 
In McNair, re (2 N. B. R. 343; 16 Fed. 

Cas. 315), 181. 
In McNair. re (.S N. B. R. 219; 16 Fed. 

Cas. 315) 174. 
In McNaiighton, re (8 N. B. R. 44; 16 

Fed. Cas. .333), 159. 
In McVey, re (2 N. B. R. 257; 16 Fed. 

Cas. 352), 135. 
In Macay, re (1 Low. 561; 1 Fed. Cas, 

746), 55. 
In Maekav. re (4 N. B. R. 66; 16 Fed. 

Cas. 156), 146. 
In Magee, re (16 Fed. Cas. 382), 169. 
In Magie. re (2 Ben. 369; 16 Fed. Cas. 

406), 26. 
In Mahoney, re (5 Fed. Rep. 518), 217. 
In Major, re (2 Hughes, 215; 16 Fed. 

Cas. 526), 48, 402. 
In Malcolm, re (4 Law Rep. 488; 16 

Fed. Cas. 540 [18421), 1.59. 
In Mallorv, re (1 Saw. 88. 98; Fed. 

Cas. No. 8991), 411, 412. 
In Malory, re (4 N. B. R. 153; 16 Fed. 

Cas. 546), 211. 
In Malory, re (1 Saw. 88; 16 Fed. Cas. 

549), 47. 
In Manahan, re (19 N. B. R. 65; 16 

Fed. Cas. 569). 382. 
In Manly, re (2 Bond, 261; 16 Fed. 

Cas. 628), 329. 
In Mann, re (13 Blatchf. 401; 16 Fed. 

Cas. 634), 250. 
In Mansfield, re (6 Ben. 284; 16 Fed. 

Cas. 659), 314. 
In Mansfield, re (6 N. B. R. 388; 16 

Fed. Cas. 660), 202. 
In Many, re (17 N. B. R. 514; 16 Fed. 

Cas. 676), 297. 
In Marcer. re (6 N. B. R. 351; 16 Fed. 

Cas. 699), 250. 
In Marks, re (2 N. B. R. 575; 16 Fed. 

Cnfi. 764), 46. 
In Marsh, re (6 Law Rep. 67; 16 Fed. 

Cas. 790), 189. 
In Marsh, re (19 N. B. R. 297; 16 

Fed. Cas. 792), 144. 



n Marshal, re (3 Fed. Rep. 220), 148. 
n Marshall, re (1 Low. 462j 16 Fed. 

Cas. 827), 139. 
n Marston, re (5 Ben. 313; 16 Fed. 

Cas. 857), 131. 
n Marter, re (12 N. B. R. 185; 16 

Fed. Cas. 857), 367. 
n Martin, re (6 Ben. 20; 16 Fed. Cas. 

875), 28. 
n Martin, re (2 Hughes, 418; 16 Fed. 

Cas. 880), 89. 
n Martin, re (2 N. B. R. 548; 16 Fed. 

Cas. 881), 127. 
u Marvin, re (1 Dill. 178; 16 Fed. C-s. 

927), 61. 
n Marwick, re (8 Law Rep. 169; 16 

Fed. Cas. 929 [1845]), 81. 
n Marx, re (16 Fed. Cas. 763), 69. 
n Mass. Brick Co.. re (2 Low. 58; 

16 Fed. Cas. 1067), 255. 
n Mastbaum, re (16 Fed. Cas. 1080), 

89. 
n Masterson, re (4 N. a. R. 553; 16 

Fed. Cas. 1084), 51. 
n Matot, re (16 N. B. R. 485; 16 Fed. 

Cas. 1109), 57, 253. 
u Matthers, re (17 N. B. R. 2;25; 16 

Fed. Cas. 1093), 118. 
a Mauer, re (5 Saw. 66; 16 Fed. Cas. 

1162), 160. 
n Mauson, re (2 Ben. 332; 16 Fed. 

Cas. 1192), 131. 
n Mauson. re (2 Ben. 412; 16 Fed. 

Cas. 1193), 142. 
n Mauson, re (1 N. B. R. 271; 16 Fed. 

Cas. 1194), 135. 
n Mav, re (7 Ben. 238; 16 Fed. Cas. 

1205), 294. 
n Mav, re (16 Fed. Cas. 1207), 87. 
n May, re (17 N. B. R. 192; 16 Fed. 

Cas. 1208), 236. 
n May, re (19 N. B. R. 101; 16 Fed. 

Cas. 1209), 297. 
n Maybin, re (15 N. B. R. 468; 16 

Fed. Cas. 121). 153. 
n Maybin, re (15 N. B. R. 468; 16 

Fed. Cns. 1221), 230, 292, 300. 
n I\rayo, re (4 Hughes, 384; 16 Fed. 

Cas. 1262). 50. 
n Mead, re (.58 Fed. Rep. 312), 402. 
n Mead, re (28 Log. Int. 277; 16 Fed. 

Cas. 1274), 303. 
n MiJad, re (19 N. B. R. 81; 16 Fed. 

Cas. 1277), 240. 
n Meade, re (It) N. B. R. 335; 16 Fed. 

Cus. 1281). 149. 
n Mealy, re (2 N. B. R. 128; 16 Fed. 

Cas. 1302), 174. 
n Mebane. re (3 N. B. R. 347; 16 Fed. 

Cas. 1304), 340, 400. 



Table of Cases Cited. 



XXXI 



In Melick, re (4 N. B. E. 97; 16 Fed. 

Cas. 1328), 70. 
In Mellor, re (10 Ben. 58; 16 Fed. Cas. 

1331), 309. 
In Mellor, re (16 Fed. Cas. 1331), 391.. 
In Melvin, re (17 N. B. R. 543; 16 

Fed. Cas. 1338), 89. 
In Mendelsohn, re (3 Saw. 342; 17 

Fed. Cas. 4), 162. 
In Mendenhall, re (9 N. B. R. 285; 17 

Fed. Cas. 8), 181. 
In Mendenhall, re (9 N. B. R. 380; 16 

Fed. Cas. 9), 254. 
In Mendenhall, re (9 N. B. R. 497; 17 

Fed. Cas. 10), 69. 
In Merchants' Ins. Co., re (3 Biss. 162; 

17 Fed. Cas. 41), 54, 60, 64. 
In Merchants' Ins. Co., re (6 Biss. 

252; 17 Fed. Cas. 43), 220. 
In Merrell, re (19 Fed. Rep. 874), 291. 
In Merrick, re (7 N. B. R. 459; 17 

Fed. Cas. 75), 230. 
In Merrlfield, re (3 N. B. R. 98; 17 

Fed. Cas. 80), 312. 
In Merrill, re (9 Ben. 165; 17 Fed. 

Cas. 80), 229. 
In Merrill, re (12 Blatchf. 221; 17 

Fed. Cas. 82), 69. 
In Merriman, re (18 N. B. R. 411; 17 

Fed. Cas. ]31), 287. 
In Metcalf, re (2 Ben. 78; 17 Fed. Cas. 

172), 106. 
In Metz, re (6 Ben. 571; 17 Fed. Cas. 

229), 312. 
In Metzger, re (2 N. B. R. 355; 17 

Fed. Cas. 231), 216. 
In Metzler, re (1 Ben. 356; 17 Fed. 

Cas. 240), 44. 
In Meyer, re (2 N. B. B. 422; 17 Fed. 

Cas. 244), 405. 
In Meyers, re <2 Ben. 424; 17 Fed. 

Cas. 249), 106. 
In Migel, re (2 N. B. R. 481; 17 Fed. 

Cas. 279), 103. 
In Miller, re (1 N. B. R. 410; 17 Fed. 

Cas. 295), 254. 
In Miller, re (19 N. B. R. 78; 17 Fed. 

Cas. 297), 238. 
In Miller, re (1 N. Y. T.eg. Obs. 180; 

17 Fed. Cas. 298), 318. 
In Miller, re (6 Biss. 30; Fed. Cas. 

No. 9551), 40. 
In Miller, re (6 Biss. 30; 17 Fed. Cas. 

293), 43, 45. 
In Mills, re (7 Ben. 452; 17 Fed. Cas. 

393) 245 
In Mills, re (11 N. B. R. 74; 17 Fed. 

Cas. 394), 75. 
In Mills, re (17 N. B. R. 472; 17 Fed. 

Cas. 397), 228. 



In Minor, re (11 Fed. Rep. 406), 77. 
In Mitchell, re (3 N. B. R. 441; 17 

Fed. Cas. 491), 67. 
In Mitchell, re (8 N. B. R. 47; 17 Fed. 

Cas. 492), 352. 
In Mitchell, re (16 N. B. R. 535; 17 

Fed. Cas. 493), 219. 
In Mitteldorfer, re (Chase, 276; 17 

Fed. Cas. 534), 218, 226. 
In Mitteldorfer, re (Chase, 288; 17 

Fed. Cas. 537), 315. 
In Moies, re (2 Low. 352; 18 Fed. Cas. 

464), 173. 
In MoUer, re (8 Ben. 526; 17 Fed. Cas. 

576; 14 Blatchf. 207; 17 Fed. Cas. 

579), 236, 309, 401. 
In Montgomery, re (3 Ben. 364; 17 

Fed. Cas. 617), 313. 
In Montgomery, re (3 Ben. 567; 17 

Fed. Cas. 618), 75. 
In Montgomery, re (3 Ben. 565; 17 

Fed. Cas. 619), 239. 
In Montgomery, re (3 Ben. 566; 17 

Fed. Cas. 620), 232. 
In Montgomery, re (3 Ben. 567; 17 

Fed. Cas. 621), 295. 
In Montgomery, re (3 N. B. R. 430; 17 

Fed. Cas. 622), 231. 
In Mooney, re (14 Blatchf. 204; 17 

Fed. Cas. 659), 191. 
In Moore, re (2 Ben. 325; 17 Fed. Cas. 

661), 134. 
In Moore, re (5 Biss. 79; 17 Fed. Cas. 

661), 71. 
In Moore, re (1 Hask. 134; 17 Fed. 

Cas. 663), 140. 
In Morford, re (Ben. 264; 17 Fed. Cas. 

745), 98. 
In Morgan, re (8 Ben. 186; 17 Fed. 

Cas. 746), 229. 
In Morgan, re (8 Ben. 232; 17 Fed. 

Cas. 746), 242. 
In Morganthal. re (1 N. B. R. 402; 17 

Fed. Cas. 769), 98. 
In Morrell, re (1 Hask. 542; 17 Fed. 

Cas. 779), 132. 
In Morrell, re (2 Saw. 356: 17 Fed. 

Cas. 781), 236, 329. 
In Morris, re (Crabbe, 70; 17 Fed. 

Rep. 785 [1837]), 50. 
In Morris, re (19 N. B. R. Ill; 17 Fed. 

Cas. 785), 140. 
In Morrison, re (10 N. B. R. 105; 17 

Fed. Cas. 831), 236, 345. 
In Morse, re (17 Blatchf. 72; 17 Fed. 

Cas. 846), 159, 249. 
In Morse, re (7 N. B. R. 56; 17 Fed. 

Cas. 848), 211. 
In Morse, re (11 N. B. R. 482; 17 Fed. 

Cas. 850), 295, 290. 



xxxn 



Table of Cases Cited. 



In Morse, re (13 N. B. R. S76; 17 Fed. 

Cas. 852), 74, 75. 
In Moseley, re (8 N. B. R. 208; 17 

Fed. Cas. 886), 82. 
In Moses, re (1 Fed. Rep. 845), 398. 
In Moses, re (6 N. B. R. 181; 17 Fed. 

Cas. 889), 32. 
In Mott, re (6 Fed. Rep. 685), 51, 400. 
In Mott, re (17 Fed. Cas. 901), 404. 
In Mott, re (17 Fed. Cas. 902), 165, 

218 
In Mott, re (17 Fed. Cas. 903), 158. 
In Moulton, re (17 Fed. Cas. 917), 335. 
In Muldaur, re (8 Ben. 65; 17 Fed. 

Cas. 958), 220. 
In Muldaur, re (8 Ben. 127; 17 Fed. 

Cas. 959), 202. 
In Muller, re (Deady, 513; 17 Fed. 

Cas. 971), 48. 158. 249. 382. 
In Muller, re (Fed. Cas. No. 9912), 

410. 
In Munger, re (4 N. B. R. 295; 17 Fed. 

Cas. 986), 56, 271. 
In Munn, re (3 Biss. 442; 17 Fed. Cas. 

989), 56, 81. 
In Murdock, re (1 Low. 362; 17 Fed. 

Cas. 1010), 128, 139, 229. 
In Murphy, re (10 N. B. R. 48; 17 

Fed. Cas. 1030), 64. 
In Murray, re (14 Blatchf. 43; 17 Fed. 

Cas. 1040), 191. 
In Murray, re (1 Hask. 267; 17 Fed. 

Cas. 1041), 285. 
In Murrin, re (2 Dill. 120; 17 Fed. 

Cas. 1062), 394. 
In Mutual B. F. S. & B. S. Bank, re 

(2 Hughes, 374; 17 Fed. Cas. 1075), 

319. 
In Myers, re (2 Hughes, 230; 17 Fed. 

Cas. 1079), 366. 
In Myrick, re (3 N. B. R. 153; IT Fed. 

Cas. 1130), 388. 
In Myrick, re (3 N. B. R. 156; 17 Fed. 

Cas. 1131), 226, 232. 
In National Iron Co., re (8 N. B. R. 

422; 17 Fed. Cas. 1222), 402. 
In Neale, re (3 N. B. R. 177; 17 Fed. 

Cas. 1264), 406. 
In Nebe, re (11 N. B. R. 289; 17 Fed. 

Cas. 1268), 229. 
In Nebenzahl, re f9 Ben. 243; 17 Fed. 

Cas. 1269), 44; 
In Needham, re (1 Low. 309; 17 Fed. 

Cas. 1275), 139. 
In Needham, re (1 Chi. Leg. News, 

171; 17 Fed. Cas. 1275), 233. 
In Negley, re (20 Fed. Rep. 499), 123. 
In Neilson, re (7 N. B. R. 505; 17 

Fed. Cas. 1301), 250. 



In Nelson, re (9 Ben. 238; 17 Fed. 

Cas. 1312), 335. 
In New Amsterdam Fire Ins. Co., re 

(6 Ben. 868; 18 Fed. Cas. 34), 62. 
In New Brunswick Carpet Co., re (4 

Fed. Rep. 514), 231. 
In New Lamp Chimney Co., re (18 

Fed. Cas. 90), 313. 
In New York Mail Steamship Co., re 

(1 Chi. Leg. News, 210; 18 Fed. 

Cas. 156), 314. 
In New York Mail Steamship Co., re 

(2 N. B. R. 554; 18 Fed. Cas. 

157 [1869]), 315. 
In Newcomb, re (32 Fed. Rep. 826), 

109, 217, 283. 
In Newcomer, re (18 Fed. Cas. 48). 

240. 
In Newland, re (7 Ben. 63; 18 Fed. 

Cas. 92), 388. 
In Newlin, re (6 Ben. 342; 18 Fed. 

Cas. 91 [1873]), 237. 
In Nichols, re (1 Fed. Rep. 842), 50. 
In Nickodemus, re (2 Chi. Leg. News, 

49; 18 Fed. Cas. 222), 247, 286. 
In Nims, re (16 Blatchf. 439; 18 Fed. 

Cas. 255), 77. 
In Noakes, re (Bankr. Ct. Rep. 162; 

18 Fed. Cas. 281), 215. 
In Noble, re (3 Ben. 332; 18 Fed. Cas. 

282 [1869]), 207. 
In Noesen, re (7 Chi. Leg. News, 419; 

18 Fed. Cas. 294 [1875]), 299.' 
In Noies, re (18 Fed. Cas. 465 [1872]), 

303, 305. 
In Nolan, re (8 Ben. 559; 18 Fed. Cas. 

296), 38. 
In Noonan, re (18 Fed. Cas. 297 

[1869]), 141. 
In Noonan, re (5 Chi. Leg. News, 557; 

18 Fed. Cas. 298). 37, 67, 69. 
In Norris, re (18 Fed. Cas. 317 

[1876]), 233. 
In North, re (2 Low. 487; 12 Fed. Cas. 

653), 378, 379. 
In Norton, re (18 Fed. Cas. 416 

[1873]), 210. 
In Noyes, re (6 N. B. R. 277; 18 Fed. 

Cas. 465), 284. 
In Numan, re (1 Chi. Leg. News, 123; 

18 Fed. Cas. 96), 145. 
In O'Bannon, re (18 Fed. Cas. 516; 2 

N. B. R. 15 [1868]), 98. 
In O'Brien, re (6 Int. Rev. Rec. 182; 

18 Fed. Cas. ,521 [1873]), 190. 
In O'Dowd, re (8 N. B. R. 451; 18 

Fed. Cas. 593 [1873]). 387, 394. 
In O'Fallon, re (2 Dill. 548; 18 Fed. 

Cas. 600 [1873]), 404. 



Table of Cases Cited. 



xxxiu 



In O'Farrell, re (2 N. B. R..484; 18 

Fed. Cas. 601 [1869]), 100. 
In O'HaUaran, re (8 Ben. 128; 18 Fed. 

Cas. 620 [1875]), 165. 
In O'Hara, re (Am. Law Reg. (N. S.) 

113; 18 Fed. Cas. 622), 314. 
In O'Kell, re (2 Ben. 144; 18 Fed. Cas. 

632 [1868]), 174. 
In O'Kell, re (2 N. B. R. 105; 18 Fed. 

Cas. 633 [1868]), 132. 
In O'Mara, re (4 Biss. 506; 18 Fed. 

Cas. 690), 37. 
In O'Nell, re (14 N. B. B. 210; 18 

Fed. Cas. 715 [1876]), 118. 
In Odell, re (16 N. B. R. 501; 18 Fed. 

Cas. 575), 116. 
In Oehninger, re (8 Ben. 487; 18 Fed. 

Cas. 594), 39. 
In Oplousa & G. W. R. Co., re (3 N. 

B. R. 31; 18 Fed. Cas. 751 [1869]), 

64, 271. 
In Orcutt, re (4 N. B. R. 538 [Quarto 

176] ; 18 Fed. Cas. 757), 188. 
In Ordway, re (19 N. B. R. 171; 18 

Fed. Cas. 760), 142. 
In Oregon Bulletin, Printing & Pub. 

Co., re (13 N. B. R. 199; 8 Chi. 

Leg. News, 81; 18 Fed. Cas. 770 

[1875]), 25a 
In Oregon Bulletin Printing & Pub. 

Co., re (13 N. B. R. 506; 18 Fed. 

Cas. 773 [1876]), 65, 98, 166, 271, 

388. 
In Oregon Bulletin Printing & Pub. 

Co., re (8 Chi. Leg. News, 143; 18 

Fed. Cas. 780), 165, 190. 
In Oregon Iron Works, re (4 Saw. 169; 

18 Fed. Cas. 791), 407. 
In Orem v. Harley, re (3 N. B. R. 263; 

18 Fed. Cas. 799 [1869]j, 158. 
In Orne, re (12 Fed. Rep. 779), 285. 
In Orne, re (1 N. B. R. 79; 18 Fed. 

Cas. 821 [1867]), 301, 134. 
In Orne, re (1 N. B. R. 79; 18 Fed. 

Cas. 823 [1867]), 97, 201. 
In Osage Valley v. S. K. R. Co., re (9 

N. B. R. 281; 18 Fed. Cas. 841), 

248 
In Ouimette, re (3 N. B. R. 566: 18 

Fed. Cas. 913 [1870]), 159, 247. 
In OverhofEer, re (17 N. B. R. 546; 18 

Fed. Cas. 520), 305. 
In Packard, re (1 Low. 523; 18 Fed. 

Cas. 957 [1871]), 56. 
In Paddock, re (6 N. B. R. 132; 18 

Fed. Cas. 973 [1872]), 292. 
In Paddock, re (6 N. B. R. 396; 18 

Fed. Cas. 975), 180. 
In Palmer, re (13 Fed. Rep. 870), 405. 

iii 



In Palmer, re (3 N. B. R. 283; 18 Fed 

Cas. 1018 [1869]), 264. 
In Palmer, re (18 Fed. Cas. 1019), 128. 
In Parham, re (17 N. B. R. 300; 18 

Fed. Cas. 1094 [1878]), 239. 
In Parker, re (11 Fed. Rep. 397), 265. 
In Parker, re (4 Biss. 501; IS Fed. 

Cas. 1110), 142. 
In Parker, re (1 Pa. L. J. 370; 18 Fed. 

Cas. 1111), 132. 
In Parker, re (10 N. B. R. 82; 18 Fed. 

Cas. 1184 [1874]), 231, 226. 
In Patterson, re (1 N. B. R. 125; 18 

Fed. Cas. 1315 [1867]), 174, 384. 
In Patterson, re (1 N. B. R. 152; 18 

Fed. Cas. 1319 [1867]), 173. 
In Patterson, re (1 N. B. R. 147; 18 

Fed. Cas. 1321 [1867]), 201. 
In Paul, re (16 N. B. R. 476; 21 Fed. 

Cas. 30 [1877]), 288. 
In Paulson, re (19 Fed. Cas. 4), 315. 
In Peabody, re (16 N. B. R. 243; 19 

Fed. Cas. 35), 92, 245, 305. 
In Pearce, re (2 N. Y. Leg. Obs. 267; 

19 Fed. Cas. 50), 136, 139. 
In Pearson, re (2 N. B. R. 477; IS 

Fed. Cas. 65), 210. 
In Pease, re (29 Fed. Rep. 593). ai3. 
In Pease, re (6 N. B. R. 173; 19 Fed. 

Cas. 67), 287. 
In Pease, re (13 N. B. R. 168; 19 Fed. 

Cas. 68), 75. 
In Pebear, re (17 N. B. R. 461; 19 

Fed. Cas. 405), 316. 
In Peck, re (9 Ben. 169; 19 Fed. Cas. 

72), 330. 
In Peck, re (3 N. B. R. 757; 19 Fed. 

Cas. 74), 166. 
In Peebles, re (2 Hughes, 394; 19 Fed. 

Cas. 94), 84. 3-52. 
In Pegues, re (3 N. B. R. 80; 19 Fed. 

Cas. 121), 304. 
In Peltasohn, re (4 Dill. 107; 19 Fed. 

Cas. 126), 51. 
In Penn, re (4 Ben. 99; 19 Fed. Cas. 

151), 51. 
In Penn, re (5 Ben. 89; 19 Fed. Cas. 

151), 29. 
In Penn, re (5 Ben. 500; 19 Fed. Cas. 

155), 104. 
In Penn, re (5 N. B. R. 288; 19 Fed. 

Cas. 155), 139. 
In Pensacola Lumber Co., re (8 Ben. 

171; 19 Fed. Cas. 197), 31. 
In People's Mail Steamship Co., re (3 

Ben. 226; 19 Fed. Cas. 211), 107. 
In People's Safe Deposit & Savings 

Inst, ro (10 Ben. 38; 19 Fed. Cas. 

212), 287. 



XXXIT 



Table ov Cases Cited. 



In Perdue, re (2 N. B. R. IBS; 19 Fed. 

Cas. 220), 352. 
In Perkins, re (6 Biss. 185; 19 Fed. 

Oas. 237), 302. 
In Perley, re (4 N. Y. Leg. Obs. 1254; 

19 Fed. Oas. 255), 133, 406. 
In Perrin, re (7 N. B. R. 283; 19 Fed. 

Cas. 261), 322, 325. 
In Perry, re (1 N. B. R. 220; 19 Fed. 

Cas. 263), 96, 211, 245. 
In Perry, re (19 Fed. Cas. 264), 144, 

264. 
In Petrie, re (5 Ben. 110; 19 Fed. Cas. 

383), 345. 
In Pettis, re (2 N. B. R. 44; 19 Fed. 

Cas. 395), 102. 
In Pfafe, re (7 Ben. 61; 19 Fed. Cas. 

414), 223. 
In Pfromm, re (8 N. B. R. 357; 19 

Fed. Cas. 415), 207. 
In Plielp, re (1 N. B. B. 525; 19 Fed. 

Cas. 436), 73, 208. 
In Plielps, re (9 Ben. 286; 19 Fed. Cas. 

435), 297. 
In Philadelpliia Axle Works, re (19 

Fed. Cas. 494), 250. 
In Picliton, re (2 Dill. 548; 19 Fed. 

Cas. 620), 188. 
In Pierce, re (7 Biss. 426; 19 Fed. Cas. 

627), 388. 
In Pierce, re (2 Low. .543; 19 Fed. Cas. 

629), 327, 343, 406. 
In Pierce, re (3 N. B. R. 258; 19 Fed. 

Cas. 630), 142, 365. 
In Pierson, re (10 N. B. R. 107; 19 

■Fed. Cas. 661), 55, 142. 
In Pierson, re (10 N. B. R. 193; 19 

Fed. Cas. 668). 135, 161. 
In Pintard, re (19 Fed. Cas. 095), 395. 
In Pioneer Paper Co., re (7 N. B. R. 

250; 19 Fed. Cas. 715), 202. 
In Pitt, re (8 Ben. 389; 19 Fed. Cas. 

745), 68. 
In Pittock. re (2 Saw. 416; 19 Fed. 

Cas. 745). 301. 
In Pitts, re (8 Fed. Rep. 263), 138. 
In Pitts, re (19 N. B. R. 63; 19 Fed. 

Cas. 750), 152. 
In Place, re (8 Blatchf. 302; 9 id. 369; 

19 Fed. Cas. 790, 791), 242. 
In Plimpton, re (4 Law Rep. 488"; IS 

Fed. Cas. 874), 97. 
In Plumb, re (9 Ben. 279; 19 Fed. Cas. 

886), 70, 80. 
In Polem.^n. re (5 Biss. 526; 19 Fed. 

Cas. 918), 85. 
In Pomeroy, re (2 N. B. R. 14; 19 

Fed. Cas. 956), 96. 
In Port Huron Dock Co., re (14 N. B. 

R. 243; 19 Fed. Cas. 1080), 181. 



In Portington, re (8 Ben. 173; 39 Fed. 

Cas. 1082), 204. 
In Portsmouth Sav. Fund Soc, re (2 

Hughes, 239; 19 Fed. Cas. 1087), 

314. 
In Potteiger, re (19 Fed. Cas. 1132), 

127. 
In Powell, re (2 N. B. B. 45; 19 Fed 

Cas. 1211), 208, 243. 
In Prankard, re (1 N. B. R. 297; 19 

Fed. Cas. 1242), 28. 
In Pratt, re (1 Flipp, 353; 19 Fed. Cas. 

1247), 86. 
In Pratt, re (2 Low. 96; 19 Fed. Cas. 

1248), 100. 
In Preseott, re (5 Biss. 523; 19 Fed. 

Cas. 1286), 300. 
In Preston, re (3 N. B. R. 103; 19 

Fed. Cas. 1289), 97. 
In Preston, re (5 N. B. R. 293; 19 

Fed. Cas. 1289), 286. 
In Preston, re (6 N. B. R. 545; 19 Fed. 

Cas. 1291), 46, 89. 
In Price, re (3 Dill. 514, n.; 19 Fed. 

Cas. 1312), 250. 
In Price, re (4 N. B. R. 406; 19 Fed. 

Cas. 1313), 211. 
In Price, re (6 N. B. R. 400; 19 Fed. 

Cas. 1314), 91. 
In Price, re (8 N. B. B. 514; 19 Fed. 

Cas. 1314), 165. 
In Price, re (1 N. J. L. J. 228; 19 Fed. 

Cas. 1316), 3.33. 
In Princeton, re (2 Biss. 116; 19 Fed. 

Cas. 1314), 240. 
In Proby, re (17 N. B. R. 175; 20 Fed. 

Cas. 1), 177. 
In Pryor, re (4 Biss. 262; 20 Fed. 

Cas. 28)-, 89, 406. 
In Piilsifer, re (14 Fed. Rep. 247), 302. 
In Piilver, re (1 Ben. 381; 20 Fed. Cas. 

54) 159. 
In Pup'ke. re (1 Ben. 342; 20 Fed. Cas. 

59), 170. 
In Purcell, re (18 N. B. R. 447; 20 

Fed. Cas. 61), 207. 
In Purcell, re (2 Ben. 485; 'Ai Fed. 

Cas. 59), 238. 
In Purcell, re (18 N. B. R. 447; 20. 

Fed. Cas. 61). 378, 379. 
In Purvis, re (1 N. B. R. 163; 20 Fed. 

Cas. 74), 207. 
In Pusey, re (7 N. B. R. 45; 20 Fed. 

Cas. 76), 394. 
In Pusey. re (0 N. B. R. 40; 20 Fed. 

Cas. 75), 394. 
In Ouinike. re (2 Biss. 354; 20 Fed. 

Cas. 142), 100. 
In Radcliffe, re (1 N. B. R. 400; 20 

Fed. Cas. 300), 98. 



Table of Cases Cited. 



XXXV 



In Rado, re (6 Biss. 230; 20 Fed. Cas. 

153), 248. 
In Radway, re (3 Hughes, 009; 20 

Fed. Cas. 154), 87. 
In Raffauf, re (6 Biss. 150; 20 Fed. 

Cas. 165), 167. 
In Rainsford, re (5 N. B. R. 381; 20 

Fed. Cas. 188), 150. 
In Randall, re (Deady, 557; 20 Fed. 

Cas. 222), 58, 159, 267. 
In Randall, re (1 Saw. 56; 20 Fed. 

Cas. 226), 242, 267. 
In Rank, re (Crabbe, 493; 20 Fed. Cas. 

273 [1842]), 47. 
In Rathbone, re (3 Ben. 50; 20 Fed. 

Cas. 309), 388. 
In Rathbone, re (1 N. B. R. 536; 20 

Fed. Cas. 314), 138. 
In Rathbone, re (2 Ben. 138; 20 Fed. 

Cas. 307), 131, 142. 
In Ray, re (2 Ben. 53; 20 Fed. CaiT. 

322) 299. 
In Ray.'re (Fed. Cas. No. 11589), 299. 
In Raynor, re (11 Blatchf. 43; 20 Fed. 

Cas. 338), 159. 
laReakirt, re (7 N. B. R. 329; 20 Fed. 

Cas. 368), 178. 
In Redmond, re (9 N. B. R. 408; 20 

Fed. Cas. 400), 58. 
In Reece, re (2 Bond, 359; 19 Fed. 

Cas. 402), 240. 
In Reed, re (6 Biss. 250; 20 Fed. Cas. 

408), 299. 
In Reed, re (1 N. B. R. 1; 20 Fed. Cas. 

416), 46. 
In Reed, re (2 N. B. R. 9; 20 Fed. 

Cas. 417), 192. 
In Reed, re (3 N. Y. Leg. Obs. 262; 

20 Fed. Cas. 417 [1844]), 142, 330. 
In Reed, re (12 N. B. R. 390; 20 Fed. 

Cas. 417), 144. 
In Relman, re (7 Ben. 455; 12 Blatchf. 

562; 20 Fed. Cas. 490, 500), 115. 
In Reis, re (3 Woods, 18; 20 Fed. Cas. 

510), 343. 
In Remsen, re (9 Ben. 260; 20 Fed. 

Cas. 531), 122. 
In Rep. Ins. Co., re (8 Biss. 452; 20 

Fed. Cas. 544), 30. 
In Rep. Ins. Co., re (8 N. B. R. 197; 

20 Fed. Cas. 548), 409. 
In Rep. Ins. Co., re (8 N. B. R. 317; 

20 Fed. Cas. 552), 169. 
In Reynolds, re (9 N. B. R. 50; 20 

Fed. Cas. 612), 409. 
In Reynolds, re (16 N. B. R. 158; 20 

Fed. Cas. 615), 349. 



In Reynolds, ro (10 N. B. R. 17G; 20 

Fed. Cas. 618), 123. 
In Rhodes, re (20 Fed. Cas. 0.";L'). 51. 
In Rice, re (9 N. B. It. 373; 20 Fed. 

Cas. 654), 78. 
In Richards, re (17 N. B. R. 562; 20 

Fed. Cas. 692), 176. 
In Richardson, re (2 Ben. 517; 20 Fed. 

Cas. 69G), 35. 
In Richardson, re (7 Ben. 155; 20 Fed. 

Cas. 697), 303. 
In Richardson, re (1 N. B. R. 114; 20 

Fed. Cas. 697), 91. 
In Richardson, re (2 Story, 571; 20 

Fed. Cas. 699), 50. 
In Richardson, re (2 Ben. 517; Fed. 

Cas. No. 11774), 413. 
In Richmond, re (18 N. B. R. 362; 20 

Fed. Cas. 736), 118. 
In Richter's Estate, re (1 Dill. 544; 20 

Fed. Cas. 748), 239, 241. 
In Riker, re (18 N. B. R. 393; 20 Fed. 

Cas. 795), 247. 
In Riorden, re (14 N. B. R. 332; 20: 

Fed. Cas. 820), 02, 240. 
In Roberts, re (8 Biss. 426; 20 Fed. 

Cas. 878), 164. 
In Robinson, re (1 Ben. 270; 20 Fed. 

Cas. 973), 244. 
In Robinson, re (2 Ben. 145; 20 Fed. ■ 

Cas. 974), 204. 
In Robinson, re (6 Blatchf. 253; 20 

Fed. Cas. 978), 107, 191. 
In Robinson, re (8 Ben. 406; 20 Fed. 

Cas. 978), 242. 
In Robinson, re (43 How. Pr. 25; 20 

Fed. Cas. 980), 203. 
In Robinson, re (2 Low. 326; 20 Fed. 

Cas. 981), 230. 
In Robinson, re (2 N; B. R. 516; 20 

Fed. Cas. 982), 176. 
In Robinson, re (3 N. B. R. 10; 20 

Fed. Cas. 982), 133. 
In Robinson, re (20 Fed. Cas. 983), 93. 
In Rockford, R. I. & St. L. R. Co., 

re (1 Low. 345; 20 Fed. Cas. 1071), 

394. 
In Roddin, re (6 Biss. 377; 20 Fed. 

Cas. 1084), 79. 
In Rodger, re (18 N. B. B. 2.j2; 20 

Fed. Cas. 1085), 122. 
In Rodger, re (18 N. B. R. 381; 20 

Fed. Cas. 1088), 122. 
In Rogers, re (1 Low. 423; 20 Fed. 

Cas. 1104), 142. 
In Rogers, re (2 N. B. R. 397; 20 Fed. 

Cas. 1105), 56. 



XXXVl 



Table of Cases Cited. 



In Rogers, re (10 N. B. R. 444; 20 

Fed. Cas. 1105), 164. 
In Rooney, re (6 N. B. R. 163; 20 Fed. 

Cas. 1153), 182, 267. 
In Rose, re (20 Fed. Cas. 1176), 310. 
In Roseberry, re (8 Biss. 112; 20 Fed. 

Cas. 1892), 346. 
In Rosenberg, re (3 Ben. 14; 20 Fed. 

Cas. 1194), 37,' 286. 
In Rosenberg, re (3 Ben. 366; 20 Fed. 

Cas. 1196), 323. 
In Rosenberg, re (3 N. B. R. 73; 20 

Fed. Cas. 1197), 315. 
In Rosenfeld, re (2 N. B. R. 116; 20 

Fed. Cas. 1198), 54, 130, 141. 
In Rosenfield, re (1 N. B. R. 575; 20 

Fed. Cas. 1202), 130, 142. 173. 
In Rosenfield, re (1 N. B. B. 319; 20 

Fed. Cas. 1205), 175, 201. 
In Rosenfields, re (11 N. B. B. 86; 20 

Fed. Cas. 1209), 150, 158, 253, 254. 
In Rowe, re (18 N. B. B. 429; 20 Fed. 

Cas. 1280), 213. 
In Rowell, re (2 N. Y. Leg. Obs. 285; 

20 Fed. Cas. 1288), 256, 271, 304. 
In Rowland, re (2 Hughes, 210; 20 

Fed. Cas. 1291), 403. 
In Buddell, re (2 Low. 124; 20 Fed. 

Cas. 1305), 286. 
In Ruehle, re (2 N. B. R. 577; 20 Fed. 

Cas. 1311), 234. 
In Rundle, re (2 N. B. R. 113; 1 Chi. 

Leg. News, 30; 21 Fed. Cas. 5 

[1868]), 107, 286. 
In Runzi, re (3 Fed. Rep. 790), 3S2. 
In Rupp, re (4 N. B. R. 95; 21 Fed. 

Cas. 215 [1870]), 84. 
In Rust, re (1 N. Y. Leg. Obs. 326; 21 

Fed. Cas. 91 [1843]), 341, 3«4. 
In Ryan, re (6 N. B. R. 235: 21 Fed. 

Cas. 104 [1872]), 217, 400. • 
In Ryan, re (5 Leg. Gaz. 263; 21 Fed. 

Cas. 105), 57, 63. 
In Sabin, re (9 N. B. R. 383; 21 Fed. 

Cas. 119 [1874]), 326. 
In Sabin, re (12 N. B. R. 142; 21 Fed. 

Cas. 120 [1875]), 346. 
In Sabin, re (18 N. B. R. 154; 21 Fed. 

Cas. 120 [1878]), 28. 
In Safe Deposit Inst., re (7 N. B. R. 

392; 21 Fed. Cas. 139 [1872]), 38. 
In Salkey, re (11 N. B. R. 423; 21 

Fed. Cas. 235 [1875] ; 11 N. B. R. 

516; 21 Fed. Cas. 239 [1875]), 33. 
In Salmon, re (2 N. B. R. 56; 21 Fed. 

Cas. 272 [1868]), 403. 
In Sands Ale Bvowing Co.. re (6 N. B. 

R. 101; 21 Fod. Cns. 251 [1S72]), 

;i2.'?. 



In Sandusky, re (17 N. B. B. 452; 21 

Fed. Cas. 354), 332. 
In Sargent, re (13 N. B. B. 144; 21 

Fed. Cas. 495 [1875]), 160. 
In Sargent, re (13 N. B. R. 144; 21 

Fed. Cas. 495 [1875]), 252, 254. 
In Sauls, re (5 Fed. Rep. 715), 255. 
In Saunders, re (13 N. B. R. 164; 21 

Fed. Cas. 524 [1875]), 226, 261. 
In SauthofE, re (14 N. B. R. 364; 21 

Fed. Cas. 540 [1875]), 236. 
In Sauthoff, re (10 N. B. R. 181; 21 

Fed. Cas. 542 [1877]), 84. 
In Savage, re (16 N. B. R. 368; 21 Fed. 

Cas. 545 [1878]), 297. 
In Sawyer, re (2 Hask. 153; 21 Fed. 

Cas. 556 [1877]), 386. • 

In Sawyer, re (14 N. B. R. 341; 21 

Fed. Cas. 559 [1876]), 124. 
In Sawyer, re (16 N. B. B. 460; 21 

Fed. Cas. 560 [1877]), 313 
In Scammon, re (6 Chi. Leg. News. 

328; 21 Fed. Cas. 617 [1874]), a 

Biss. 145; 21 Fed. Cas. 6l20 [1874]; 

id. 622 [1874]), 252. 
In Schenck, re (5 N. B. B. 93; 21 Fed. 

Cas. 660 [1872]), 126. 
In Schick, re (1 N. B. R. 177; 21 Fed. 

Cas. 689 [1807]). 60. 
In Schnepf, re (1 N. B. R. 190; 21 Fed. 

Cas. 719 [1867]), 330, 336. 
In Schuhardt, re (8 Ben. 585; 15 N. B. 

R. 161; 21 Fed. Cas. 739 [1876]). 

294. 
In Schwab, re (2 N. B. R. 488; l-'l 

Fed. Cas. 763 [1869]), 304. 
In Schwab, re (8 Ben. 353; 21 Fod. 

Cas. 764 [1876]K 173. 
In Schwarz, re (14 Fed. Rep. 787), 104. 
In Scott, re (11 Fed. Rep. 133), 62. 273. 
In Scott, re (3 N. B. R. 742; 21 Fed. 

Cas. 798 [1869]), 347. 
In Scott, re (15 N. B. R. 73: 21 Fed. 

Cas. 805 [1876]), 116, 117. 
In Scovill, re (4 Cliff. 549; 21 Fed. 

Cas. 856 [1878]), 113, 384. 
In Scrafford, rp (4 Dill. .376; 21 Foil. 

Ca.s. 866 [1877]). 2.52. 
In Scull, re (7 Bon. 371; 10 N. B. K. 

165; 21 Fed. Cas. 890 [1874]), Kil. 
In Seabury, re (10 N. B. R. 90; I't 

Fed. Cas. 900 [1874]), 13L 
In Seabury. re flO N. B. B. 90; 21 Fed. 

Cas. 900 [1874]), 134. 
In Seaman, re (19 N. B. R. 332; 121 

Fed. Cas. 913 [1879]), 136. 
In Spclipudorf, rp (2 Ben. 462; 1 N. 

F. R. 626: 21 Fed. Cas. 957 

[1.86S1). 1.'!6. 



Table of Cases Cited. 



xxxvu 



In Secor, re (18 Fed. Rep. 319), 310. 
In Seeley, re (19 N. B. R. 1; 21 Fed. 

Cas. 1007 [1879]), 267. 
In Seymour, re (1 N. B. R. 29; 1 Ben. 

348 [1867]), 39, 102. 
In Shannahan, re (6 Biss. 39; 21 Fed. 

Cas. 1153 [1874]), 72. 
In Shaw, re (9 Fed. Rep. 495), 125. 
In Shpffer, re (4 Saw. 363; 17 N. B. B. 

369; 21 Fed. Cns. 1225), 165. 
In Shepard, re (1 N. B. R. 439; 21 

Fed. Cas. 1250 [1868]), 128, 249. 
In Shepard, re (3 Ben. 347; N. B. 

R. 172; 21 Fed. Cas. 1256 [1869]), 

68. 
In Shepard, re (Fed. Cas. No. 12753), 

299. 
In Sherman, re (8 N. B. R. 353; 21 

Fed. Cas. 1222 [1873]), 169. 
In Sherwood, re (1 N. B. R. 344; 21 

Fed. Cas. 1286 [1868]), 204. 
In Shields, re (4 Dill. 588; 15 N. B. R. 

532 [1877]; 21 Fed. Cas. 1308), 

117. 
In Shirley, re (9 Fed. Rep. 901), 235. 
In Shoenberger, re (4 Gin. Law Bui. 

965; 21 Fed. Cas. 1334 [1879]), 

267. 
In Shuey. re (9 N. B. B. 526; 22 Fed. 

Cas. 45), 37. 
In Sidle, re (2 N. B. R. 220; 22 Fed. 

Cas. 102), 156. 
In Signer, re (20 Fed. Rep. 236), 138. 
In Sime, re (2 Saw. 320; 22 Fed. Cas. 

145), 191. 
In Sime, re (3 Saw. 305; 22 Fed. Cas. 

147), 292, 302. 
In Simmons, re (W N. B. R. 253; 22 

Fed. Cas. 152), 160. 
In Simms, re (9 Fed. Rep. 440), 149. 
In Simpson, re (2 N. B. R. 47; 22 Fed. 

Cas. 170), 38. 
In Sims, re (16 N. B. R. 251; 22 Fed. 

Cas. 181), 367. 
In Sims, re (19 N. B. R. 57; 22 Fed. 

Cas. 181), 368. 
In Sinnett, re (4 Saw. 250; 22 Fed. 

Cas. 228), 85. 
In Skelly. re (3 Biss. 260; 22 Fed. Cas. 

272) 255 291. 
In Skoll, re (16 N. B. R. 175; 22 Fed. 

Cas. 304), 409. 
In Slevin, re (4 Dill. 131; 22 Fed. Cas. 

323), 220. 
In Sloan, re (13 Blatchf. 67; 22 Fed. 

Cas. 326), 127. 
In Slocum, re (22 Fed. Cas. 328), 79. 
In Pm'th, re (9 Fed. Rep. 592), 126, 

273. 



In Smith, re (16 Fed. Rep. 465), 71, 

143. 
In Smith, re (2 Ben. 113; 22 Fed. Cas. 

381), 210. 
In Smith, re (2 Ben. 432; 22 Fed. Cas. 

384), 333. 
In Smith, re (6 Ben. 187; 22 Fed. Cas. 

388), 291. 
In Smith, re (9 Ben. 494; 22 Fed. Cas. 

388), 154. 
In Smith, re (8 Blatchf. 461; 22 Fed. 

Cas. 390), 128. 
In Smith, re (2 Hughes, 284; 22 Fed. 

Cas. 391), 218. 
In Smith, re (2 Hughes, 307; 22 Fed. 

Cas. 392), 88. 
In Smith, re (1 N. B. R. 214; 22 Fed. 

Cas. 397), 29. 
In Smith, re (2 N. B. R. 297; 22 Fed. 

Cas. Sitl), 331. 
In Smith, re (5 N. B. B. 20; 22 Fed. 

Cas. 398), 131. 
In Smith, re (8 N. B. B. 401; 22 Fed. 

Cas. 399), 48. 
In Smith, re (13 N. B. R. 500; 22 Fed. 

Cas. 402), 80. 
In Smith, re (14 N. B. R. 432; 212 

Fed. Cas. 403), 181. 
In Smith, re (15 N. B. B. 97; 22 Fed. 

Cas. 403), 318. 
In Smith, re (15 N. B. R. 459; 22 Fed. 

Cas. 405), 347. 
In Smith, re (16 N. B. R. 113: 22 Fed. 

Cas. 408), 81. 
In Smith, re (16 N. B. R. 399; 22 Fed. 

Cas. 409), 349. 
In Smith, re (1 N. T. Leg. Obs. 249; 

22 Fed. Cas. 411 [1843]), 33. 
In Smith, re (1 Woods, 478; 22 Fed. 

Cas. 412), 142. 
In Smith, re (2 Woods, 458; 22 Fed. 

Cas. 413), 88. 
In ,Snelling, re (19 N. B. R. 120; 22 

'Fed. Cas. 719), 117, 120. 
In Snow, re (1 N. Y. Leg. Obs. 264; 

22 Fed. Cas. 721 [1842]), 393. 
In Sohoo, re (3 N. B. B. 215; 22 Fed. 

Cas. 780), 133. 
In Solace, re (4 Ben. 143; 22 Fed. Cas. 

782), 175. 
In Soldiers' Business, Messenger & 

Dispatch Co., re (3 Ben. 204; 22 

Fed. Cas. 781), 323. 
In Solomon, re (2 Hughes, 164; 22 

Fed. Cas. 785), 88. 
In Solomon, re (2 N. B. B. 285; 22 

Fed. Cas. 787), 144. 
In Son, re (2 N. b. R. 153; 22 Fed. 

Cas. 794), 130. 



XXXVIU 



Table of Cases Cited. 



In South Boston Iron Co. (4 Clifie. 343; 

22 Fed. Cas. 812), 80, 117, 125, 

193, 229. 
In South Westei-n Car Co., re (9 Biss. 

76; 22 Fed. Cas. 833), 309. 
In Souther, re (2 Low. 320; 22 Fed. 

Cas. 815), 302. 
In Spades, re (6 Biss. 448; 22 Fed. 

Cas. 848), 117, 238. 
In Spencer, re (18 N. B. R. 199; 22 

Fed. Cas. 914), 117. 226, 245. 
In Speyer, re (6 N. B. R. 255; 22 Fed. 

Cas. 928), 205. 
In Staib, re (3 Fed. Rep. 209), 113. 
In Stansell, re (6 N. B. R. 183; 22 

Fed. Cas. 1059), 247. 
In Stansfield, re (4 Saw. 334; 22 Fed. 

Cas. 1061), 128, 243. 
In Stanton, re (22 Fed. Cas. 1064), 

286. 
In Starr, re (56 Fed. Rep. 142), 122. 
In State Ins. Co., re (16 Fed. Rep. 

7.50), 285. 
In Steadman, re (8 N. B. R. 310; 22 
, Fed. Cas. 1155), 48. 
In Steele, re (7 Biss. 504; 22 Fed. Cas. 

1190), 340. 
In Steele, re (2 Flipp, 324; 22 Fed. 

Cas. 1202), 93, 
In Stein, re (16 N. B. R. 569; 22 Fed. 

Cas. 1232), 241, 265. 
In Stephens, re (3 Biss. 187; 2 Fed. 

Cas. 1275), 288, 328. 
In Sterling, re (1 Fed. Rep. 167), 295. 
In Stetson, re (4 Ben. 147; 22 Fed. 

Cas. 1316), 244. 
In Stevens, re (4 Ben. 513; 23 Fed. 

Cas. 1), 232, 259. 
In Stevens, re (23 Fed. Cas. 1), 407. 
In Stevens, re (2 Biss. 373; 23 Fed. 

Cas. 2), 93, 342. 
In Stevens, re (1 Saw. 397; 23 Fed. 

Cas. 4), 68. 
In Stevenson, re (6 Fed. Rep. 710), 

404. 
In Stewart, re (21 Fed. Rep. 398), 138. 
In Stewart, re (1 N. B. R. 278; 23 

Fed. Cas. 50), 234. 
In Stewart, re (3 N. B. R. 108; 23 

Fed. Cas. 51), 62. 
In Stewart, re (13 N. B. R. 295; 23 

Fed. Cas. 51), 91. 
In Stillwell, re (2 N. B. R. 526; 23 

Fed. Cas. 88), 210. 
In Stillwell, re (7 N. B. R. 226; 23 

Fed. Cas. 89), 207. 
In Stockwell, re (9 Ben. 265; 23 Fed. 

Cas. 114), 333. 
In Stokes, re (1 N. B. R. 489; 23 Fed. 

Cas. 134), ElO. 



In Stokes, re (2 N. B. R. 212; 23 Fed. 

Cas. 134), 130. 
In Stowe, re (6 N. B. R. 429; 23 Fed. 

Cas. 199), 323. 
In Stowell, re (24 Fed. Rep. 468), 122. 
In Stowers, re (1 Low. 528; 23 Fed. 

Cas. 209), 68. 
In Strachan, re (3 Biss. 181; 23 Fed. 

Cas. 212), 198, 286. 
In Strassberger, re (4 Woods, 557; 23 

Fed. Cas. 224), 309. 
In Strauss, re (2 N. B. R. 48; 23 Fed.. 

Cas. 231), 229. 
In Strenz, re (8 Fed. Rep. 311), 358. 
In Stubbs, re (4 N. B. R. 376; 23 Fed. 

Cas. 274), 409. 
In Sturgeon, re (1 N. B. R. 4lr8; 28 

Fed. Cas. 307), 166. 
In Sturges, re (8 Biss. 79; 23 Fed. 

Cas. 307), 274. 
In Stuyvesant Bank, re (5 Ben. 566; 

23 Fed. Cas. 339), 209. 
In Stuyvesant Bank, re (6 Ben. 33; 23 

Fed. Cas. 340), 180. 
In Summers, re (3 N. B. R. 84; 23 

Fed. Cas. 379), 87. 
In Sumner, re (10 Ben. 34; 23 Fed. 

Cas. 382), 138. 
In Sutherland, re (2 Biss. 405; 23 Fed. 

Cas. 452), 193. 
In Sutherland, re (6 Biss. 520; 23 Fed. 

Cas. 453), 393. 
In Sutherland, re (Deady, .344; 23 

Fed. Cas. 454), 62, 158. 
In Sutherland, re (Deady, 416; 23 Fed. 

Cas. 456), 294. 
In Sutherland, re (Deady, 473; 23 Fed. 

Cas. 457), 133, 135. 
In Svenson, re (9 Biss. 69; 23 Fed. 

Cas. 480), 126, 142. 
In Swearinger, re (5 Saw. 52; 23 Fed. 

Cas. 527), 86. 
In Sweet, re (9 N. B. R. 48; 23 Fed. 

Cas. 543), 304. 
In Sykes, re (5 Biss. 113; 23 Fed. Cas. 

582), 158. 

In Talbot, re (2 N. B. R. 280; 23 Fed. 

Cas. 640), 223. 
In Taliafero, re (3 Hughes, 422; 23 

Fed. Cas. 674), 39, 193, 403. 
In Tallmadge, re (23 Fed. Cas. 677 

[1843]), 163. 

In Tallman, re (S Ben. 404; 23 Fed. 

Cas. 678), 133. 
In Tanner, re (1 Low. 215; 23 Fed. 

Cas. 687), 174. 
In Taylor, re (3 N. B. R. 157; 23 Fed. 

Cas. 730), 85. 



Table of Cases Cited. 



xxxix 



In Tebbetts, re (5 Law Rep. 259; 23 
Fed. Cas. 826 [1S12]), 128, 138, 
142, 153, 408. 
In Temple, re (4 Saw. 92; 23 Fed. 

Cas. 835), 68, 369. 
In Temple, re (6 Saw. 97; 23 Fed. 

Cas. 838), 342. 
In Ten Eyck, re (7 N. B. R. 26; 23 

Fed. Cas. 844), 310. 
In Terry, re (2 Biss. 356; 23 Fed. Cas. 

849), 259. 
In Terry, re (5 Biss. 110; 23 Fed. Cas. 

852), 62. 
In Tertelling, re (2 Dill. 339; 23 Fed. 

Cas. 861), 86. 
In Tesson, re (9 N. B. R. 378; 23 

Fed. Cas. 866), 81. 
In Thiell, re (4 Biss. 241; 23 J'"ed. Cas. 

917), 88. 
In Thomas, re (8 Biss. 139; 23 Fed. 

Cas. 923), 82, 233. 
In Thomas, re (3 N. B. R. 38; 23 Fed. 

Cas. 932), 107, 164. 
In Thomas, re (11 N. B. R. 330; 23 

Fed. Cas. 932), 169. 
In Thompson, re (2 Ben. 166; 23 Fed. 
Cas. 1018), 135. 
. In Thompson, re (13 N. B. R. 300; 23 
Fed. Cas. 1021), 99. 
In Thornton, re (2 N. B. R. 189; 23 

Fed. C.is. 1144), 88. 
In Thorp, re (4 N. Y. Leg. Obs. 377; 

23 Fed. Cas. 1153), 283. 
In Tifft, re (17 N. B. R. 550; 23 Fed. 

Cas. 1209), 180. 
In Tifft, re (18 N. B. R. 78; 23 Fed. 

Cas. 1210), 106. 
In Tifft, re (18 N. B. R. 177; 23 Fed. 

Cas. 1212), 173. 
In Tifft, re (19 N. B. R. 201; 23 Fed. 

Cas. 11213), 36, 340. 
In Tift, re (17 N. B. B. 421; 23 Fed. 

Cas. 1219), 176. 
In Tills, re (11 N. B. R. 214; 23 Fed. 

Cas. 1273), 337. 
In Tomes, re (19 N. B. R. 36; 24 Fed. 

Cas. 24), 75. 
In Tonkins, re (4 N. B. R. 52; 24 Fed. 

Cas. 48), 240. 
In Tonne, re (13 N. B. R. 170; 24 

Fed. Cas. 51), 87, 91. 
In Tooker, re (8 Ben. 390; 24 Fed. 

Cas. 51), 153. 
In Town, re (8 N. B. B. 40; 24 Fed. 

Cas. 85), 301. 
In Townsend, re (2 Fed. Rop 
136, 144. 



In Townsend, re (2 Ben. 62; 24 Fed, 

Cas. 102), 245.. 
In Tracy, re (2 N. B. R. 298; 24 Fed. 

Cas. 112), 143. 
In Treat, re (10 N. B. R. 310; 24 Fed. 

Cas. 159), 304. 
In Trim, re (2 Hughes, 355; 24 Fed. 

Cas. 197), 343. 
In Troth, re (1 Fed. Rep. 405), 117. 
In Troth, re (19 N. B. B. 253; 24 Fed. 

Cas. 214), 120. 
In Trowbridge, re (9 N. B. R. 274; 24 

Fed. Cas. 218), 230. 
In Troy Woolen Co., re (5 Ben. 413; 

24 Fed. Cas. 241), 242. 
In Troy Woolen Co., re (9 Blatchf. 

191; 24 Fed. Cas. 244), 193. 
In Troy Woolen Co., re (8 Blatchf. 

465; 24 Fed. Cas. 273), 403, 404. 
In Troy Woolen Co., re (8 N. B. R. 

412; 24 Fed. Cas. 245), 379. 
In Tucker, re (24 Fed. Cas. 264), 88. 
In TuUey, re (3 N. B. R. 82; 24 Fed. 

Cas. 315), 220, 284. 
In Tyler, re (4 N. B. R. 104; 24 Fed. 

Cas. 457), 144. 
In Tyrrel, re (2 N. B. R. 200; 24 Fed. 

Cas. 479), 130. 
In Tytle, re (14 N. B. R. 457; 15 Fed. 

Cas. 1195), 121. 
In Ulrich, re (3 Ben. 355; 24 Fed. Cas. 

510), 35. 
In tJlrich, re (6 Ben. 483; 24 Fed. Cas. 

511), 32. 
In XJnion Pac. Co., re (10 N. B. R. 

178; 24 Fed. Cas. 624\ .-57, 272. 
In Valentine, re (4 Biss. 317; 28 Fed. 

Cas. 868), 229. 
In Valliquette, re (4 N. B. R. 307; 28 

Fed. Cas. 930), 57. 
In Valk, re (3 Ben. 431; 28 Fed. Cas. 

873), 102. 
In Van Auken, re (14 N. B. R. 425 

28 Fed. Cas. 946), 117, 118. 
In Van Buren, re (19 N. B. R. 149 

28 Fed. Cas. 953), 103, 293. 
In Vanderhoef, re (18 N. B. R. 543 

28 Fed. Cas. 966), 161. 
In Vanderhoef, re (28 Fed. Oas. 966), 

181. 
In Van Tuyl, re (1 N. B. R. 636; 28 

Fed. Cas. 1088), 172. 
In Van Tuyl, re (3 Ben. 237; 28 Fed. 

Cas. 1088), 177. 
In Vai) Tuyl, re (2 N. B. R. 70; 28 

Fed. Cas. 1090), 177. 
In Vetterlein, re (20 Fed. Rep. 109), 

308. 



xl 



Table of Cases Cited. 



In Vetterlein, re (5 Ben. 7; 28 Fed. 

Cas. 1170), 175. 
In Vetterlein, re (5 Ben. 311; 28 Fed. 

Cas. 1170), 81. 
In Vetterlein, re (13 Blatchf. 44; 28 

Fed. Cas. 1172), 293. 
In Vicliery, re (3 N. B. R. 696; 28 

Fed. Cas. 1173), 293. 
In Vita, re (5 Law Rep. 17; 28 Fed. 

Cas. 1188 [1842]), 400. 
In Voetter, re (4 Fed. Rep. 032), 379. 
In Vogel, re (9 Ben. 498; 28 Fed. Cas. 

1238), 162, 255. 
In Vogel, re (7 Blatchf. 18; 28 Fed. 

Cas. 1239), 387. 
In Vogel, re (5 N. B. R. 393; 28 Fed. 

Cas. 1244), 172. 
In Vogler. re (2 Hughes, 297; 28 Fed. 

Cas. 1248), 93. 
In Vorback, re (1 Pac. Law Rep. 100; 

28 Fed. Cas. 1278), 127. 
In Waggoner, re (1 Ben. 532; 28 Fed. 

Cas. 1326), 131. 
In Waite, re (1 Low. 207; 28 Fed. 

Cas. 1339), 327. 
In Waitzf elder, re (8 Ben. 423; 28 Fed. 

Cas. 1342), 176. 
In Waitzf elder, re (18 N. B. R. 260; 

28 Fed. Cas. 1343), 51. 
In Walker, re (1 Low; 222; 29 Fed. 

Cas. 1), 101. 
In Walker, re (1 Low. 237; 29 Fed. 

Cas. 1), 27. 
In Walker, re (18 N. B. R. 56; 29 

Fed. Cas. 3), 218, 339, 369. 
In AVallace. re (Heady, 433; 29 Fed. 

Cas. 65), 33, 168. 
In Wallace, re (12 N. B. R. 191; 29 

Fed. Cas. 67), 71. 
In Walshe, re (2 Woods, 225; 29 Fed. 

Cas. 110), 120, 121, 124. 
In Walton, re (Deady, 442; 29 Fed. 

Cas. 125), 240, 242. 
In Walton, re (Deady, 510; 29 Fed. 

Cas. 127), 229. 
In Walton, re fDeady, 508; 29 Fed. 

Cas. 128), 239. 
In Walton, re (1 N. B. R. 557; 29 Fed. 

Cas. 132), 310. 
In Ward, re (12 Fed. Rep. 325), 160, 

313. 
In Ward, re (9 N. B. R. 349; 29 Fed. 

Cas. 160), 306. 
In Warder, re (10 Fed. Rep. 275), 386. 
In Warne, re (10 Fed. Rep. 377), 143. 
In Warne, re (12 Fed. Rep. 431), 139. 
In Warner, re (7 N. B. R. 47; 29 Fed. 

Cas. 2.'!3), 09. 
In Warren, ro (2 Ware, 322; 29 Fed. 

Cas. 266 [1847]), 79. 



In Warshing, re (5 N. B. B. 350; 29 

Fed. Cas. 301), 313. 
In Wartenbach, re (11 N. B. R. 61; 2 

Fed. Cas. 956), 145, 326. 
In Washborn, re (11 N. B. R. 66; 29 

Fed. Cas. 307), 310. 
In Washington Marine Ins. Co., re (2 

Ben. 292; 29 Fed. Cas. 36-5), 61. 
In Watrous, re (14 N. B. R. 258; 29 

Fed. Cas. 419), 228. 
In Watson, re (2 N. B. R. 570; 29 Fed. 

Cas. 421) 84. 
In Watson, re (4 N. B. R. 613; 29 

Fed. Cas. 422), 27. 
In Watson, re (29 Fed. Cas. 423), 126. 
In Watts, re (3 Ben. 166; 29 Fed. Cas. 

433), 97, 134. 
In Weaver, re (9 N. B. R. 132; 29 

Fed. Cas. &45), 58, 273. 
In Webb, re (2 N. B. R. 614; 29 Fed. 

Cag. 493). 308. 
In Webb, re (6 N. B. R. 302; 29 Fed. 

Cas. 494), 312. 
In Webb, re (4 Saw. 326; 29 Fed. Cas. 

495), 73. 
In Weber Furniture Co., re (13 N. B. 

R. 559; 29 Fed. Cas. .536), 120, 

12i2. 
In Weeks, re (8 Ben. 265; 29 Fed. 

Cas. 575), 319. 
In Weeks, re (2 Biss. 259; 29 Fed. 

Cas. 577), 336. 
In Weitzel, re (7 Biss. 289; 29 Fed. 

Cas. 604), 100. 
In Welch, re (5 Ben. 230; 29 Fed. Cas. 

605), 89. 
In Welch, re (5 Ben. 278; 29 led. Cas. 

606), 306. 
In Welge, re (1 Fed. Rep. 216), 220, 

284. 
In Welles, re (18 N. B. R. 525; 29 

Fed. Cas. 619), 120. 
In Wells, re (4 Fed. Rep. 68), 316. 
In Wells, re (3 N. B. R. 371; 29 Fed. 

Cas. 637), 23, 61. 
In Welman, re (7 Law Rep. 25; 29 

Fed. Cas. 681 [1844]), 165. 
In Werner, re (5 Dill. 119; 29 Fed. 

Cas. 704), 358. 
In West, re (39 Fed. Rep. 203), 80. 
In Western Savings & T. Co., re (4 

Saw. 190; 20 Fed. Cas. 775), 158, 

161. 
In Westervelt, re (29 Fed. Cas. 793), 

393. 
In Wetmore, re (16 N. B. R. 514; 29 

Fed. Cas. 842), 209. 
In Weyhausen, re (1 Ben. 397; 29 Fed. 

Cas. 848), 163. 



Table of Cases Cited. 



xli 



In Wheeler, re (5 Fed. Rep. 290), 127 

279. 
In Wheeler, re (2 Low. 252; 29 Fed 

Cas. 873), 380. 
In Wheeler, re (19 N. B. R. 385; 29 

Fed. Cas. 877), 312, 331, 337. 
In Whetmore, re (Deadv, 585; 29 Fed 

Cas. 921), 93, 96, 139. 
In Whipple, re (6 Biss. 516; 29 Fed. 

Cas. 928), 39. 
In Whipple, re (2 Low. 404; 29 Fed. 

Cas. 929), 120. 
In Whipple File Co.. re (1 Low. 477; 

29 Fed. Cas. 944), 291. 
In White, re (2 Ben. 85; 29 Fed. Cas. 

966), 400. 
In White, re (2 N. B. R. 590; 29 Fed. 

Cas. 966), 145. 
In White, re (18 N. B. R. 107; kt* Fed. 

Cas. 966), 126, 272. 
In Whitehead, re (2 N. B. R. 599- 29 

Fed. Cas. IftSO), 85. 
In Whitehouse. re (1 Low. 429; 29 

Fed. Cas. 1032). 101. 
In Whiting, re (29 Fed. Cas. 1055), 

126. 
In Whiting, re (18 N. B. R. 563; 29 

Fed. Cas. 1070), 105. 
In Whitney, re (2 Low. 455; 29 Fed. 

Cas. 1068). 1.S8. 
In Whyte. re (9 N. B. R. 267; 29 Fed. 

Cas. 1129), 1228. 
In Wielarski, re (4 Ben. 468; 29 Fed. 

Cas. 1154), 165. 
In Wiener, re (14 N. B. R. 218; 29 

Fed. Cas. 1.54). 231. 
In Wiggins, re (2 Biss. 71; 29 Fed. 

Cas. 1156), 101. 
In Wilbur, re (1 Ben. 527; 29 Fed. 

Cas. 1131), 105. 
In Wilkens, re (2 N. B. R. 349; 30 

Fed. Cas. 302 [18691), 68. 
In Wilkinson, re (3 N. B. R. 286; 29 

Fed. Cas. 12.5.3). 134. 
In Williams, re (13 Fed. Rep. 30), 143. 
In Williams, re (6 Biss. 233; 29 Fed. 

Cas. 1318), 39, 165. 
In Williams, re (5 Law Rep. 402; 29 

Fed. Cas. 1.321 [1842]). 74. 
In Williams, re (1 Low. 406; 29 Fed. 

Cas. 13212), 54, 66, 164. 
In Williams, re (2 N. B. R. 83; 29 

Fed. Cas. 1324), 304. 31.3. 
In Williams, re (2 N. B. R. 229; 29 

Fed. Cas. 13Z5), 294. 306. 
In Williams, re 02 N. B. R. 132; 29 

Fed. Cas. 1327), 162. 
In Williams, re (14 N. B. R. 132; 29 
Fed. Cas. 1327), 57, 162. 



In Williams, re (3 Woods, 403; 29 Fed. 

Cas. 1320), 76. 
In Wilmott, re (2 N. B. R. 214; 30 

Fed. Cas. 87 [18681), 128. 
In Wilson, re (16 Blatchf. 112; 30 Fed. 

Cas. 93 [1879]), 123, 192. 
In Wilson, re (2 Hughes, 228; 30 Fed. 

Cas. 97 [1S75]), 23. 
In Wilson, re (2 Low. 453; 13 N. B. R. 

253; 30 Fed. Cas. 97 [1875]), 68. 
In Wilson, re (18 N. B. R. 300; 30 

Fed. Cas. 98 [1878]), 120, 124. 
In Winn, re (1 N. B. R. 499: 30 Fed. 

Cas. 303 [1867]), 107, 350. 
In Winship, re (7 Ben. 194; 30 Fed. 

Cas. 306 [1874]), 173. 
In Winthrop, re (5 Law Rep. 24; 30 

Fed. Cas. 375 [1842]). 102. 
In Witkowski, re (10 N. B. R. 109; 30 

Fed. Cas. J03 [1874]), 176. 
In Wood, re (5 Fed. Rep. 443), 370. 
In Wood,- re (8 Ben. 237; 30 Fed. Cas. 

422 [1875]), 128. 
In Wood, re (5 N. B. R. 421 ; 30 Fed. 

Cas. 423 [1871]), 369. 
In Woodward, re (4 Ben. 102; 30 Fed. 

Cas. 541), 178, 180. 
In Woodward, re (8 Ben. 112; 30 Fed. 

Cas. 542 [1875]), 180. 
In Woolford, re (4 Ben. 9; 30 Fed. 

Cas. 602 [1870]). 176. 
In Woolf skill, re (5 Saw. 385; 30 Fed. 

Cas. 415 [1879]). 143. 
In Wright, re (2 Ben. 509: 2 N. B. R. 

142: 30 Fed. Cas. 656 [1868]), 156, 

173. 
In Wright, re (6 Biss. 317; 30 Fed. 

Cas. 661 [18751; 2 N. B. R. 41; 30 

Fed. Cas. 663 [18681), 98. 
In Wright, re (2 N. B. R. 490; 30 

Fed. Cas. 663 [1869]), .3.32. 
In Wright, re (1 N. B. R. 393; 30 Fed. 

Cas. 662 [1873]), 202. 
In Wright, re (6 Biss. 317; 30 Fed. 

Cas. 661 [1875]). 300. 
In Wrisley, re (17 N. B. R. 259; 30 

Fed. Cas. 717 [1877]), 391. 
In Wronkow, re (15 Blatchf. 38: 18 

N. B. R. 81; 30 Fed. Cas. 718), 

120. 
In Wyatt re (2 N. B. R. 288; 30 Fed. 

Cas. 719 [1868]), 143. 
In Wylie, re (2 N. B. R. 137; 30 Fed. 

Cas. 731 [1868]), 407. 
In Wynne, re (Chase, 227; 4 N. B. R. 

23; 30 Fed. Cas. 752 [1868]), 279, 

341, 355. 
In Young, re (2 Dill. 239; 30 Fed. Cas. 
865 [1875]), 147. 



xlii 



Table of Cases Cited. 



In Young, re (3 N. B. R. 440; 30 Fed. 

Cas. 835 [1869]), 91. 
In Young, re (7 Fed. Rep. 855), 32. 
In Young, re (9 Fed. Rep. 146), 126. 
In Young, re (15 N. B. R. 205; 30 Fed. 

Cas. 835 [1876]), 84. 
In Zinn, re (4 Ben. 500; 4 N. B. R. 

436; 30 Fed. Cas. 934 [1871]), 209. 
In Zinn, re (4 N. B. R. 370; 40 How. 

Pr. 461; 30 Fed. Cas. 935), 209. 
In Zug, re (16 N. B. R. 280; 30 Fed. 

Cas. 947 [1877]), 74. 
Insurance Co. v. Comstock (16 Wall. 

259), 189. 
Irons T. Bank (27 Fed. Rep. 591), 155. 
Ironsides, The (4 Biss. 518; 12 Fed. 

Cas. 103), 40, 347, 382. 
Ironsides, The (15 Int. Rev. Rec. 59; 

13 Fed. Cas. 106), 322. 
Irving V. Hughes (2 N. B. R. 6; 13 

Fed. Cas. Ill), 339. 



Jackson v. McColloch (1 Woods, 433; 

13 Fed. Cas. 225), 262. 
James v. Atlantic D. Co. (11 N. B. B. 

390; 13 Fed. Cas. 300), 65. 
Jeferies V. Bartlett (20 Fed. Rep. 496), 

89. 
Jenkins v. International Bank (106 U. 

S. 571), 111. 
Jenkins v. International Bank (127 U. 

S. 484), 110. 
Jenkins v. Meyer (2 Biss. 303; 13 Fed. 

Cas. 529), 274. 
Jerome v. McCar.ter (24 U. S. 734), 

349. 
Jewett (2 Low. 393; 13 Fed. Cas. 580), 

118. 
Jobbins v. Montague (5 Ben. 422; 13 

Fed. Cas. 644), 34. 
Jobbins v. Montague (6 N. B. R. 509; 

13 Fed. Cas. 648), 48, 49, 191, 373. 
Johnson, Case of, (13 Fed. Cas. 718 

[1842]), 156. 
Jobnson v. Bishop (Woolw. 324; 13 

Fed. Cas. 732), 41, 46. 
Johnson v. May (16 N. B. R. 425; 13 

Fed. Cas. 771), 84, 87. 
Johnson v. Price (13 K. B. R. 523; 13 

Fed. Cas. 793), 186. 
Jones V. Clifton (2 Flip. 191; 13 Fed. 

Cas. 942), 350, 394. 
Jones V. Gray (3 Woods, 494; 13 Fed. 

Cas. 956), 92. 
Jones V. Kinney (5 Ben. 259; 13 Fed. 

Cas. 985), 359. 
Jones V. Leach (1 N. B. R. 595; 13 

Fed. Cas. 987), 46. 



Jones V. Miller (17 N. B. R. 316; 13 

Fed. Cas. 994), 326. 
Jones V. Newson (7 Biss. 321; 13 Fed. 

Cas. 996), 73. 
Jones V. Slauson (33 Fed. Rep. 632), 

373. 
Jones V. Sleeper (2 N. B. R. 131; 13 

Fed. Cas. 1030 [1843]), 354. 
Jones V. Sleeper (2 N. Y. Leg. Obs. 

131; 13 Fed. Cas. 1030 [1843]), 55, 

59. 
Jones V. Smith (38 Fed. Rep. 380), 

113. 
Judson V. Courier Co. (15 Fed. Rep. 

541), 371, 374. 
Judson V. Courier Co. (25 Fed. Rep. 

705), 188. 
Judson V. Keltie (5 Ben. 348), 14 Fed. 

Cas. 14), 354, 362. 

K. 

Kane v. Jenkinson (10 N. B. R. 316; 

14 N. B. R. 121), 408. 
Kane v. Rice (10 N. B. R. 469; 14 Fed. 

Cas. 125), 375. 
Kappner v. St. Louis & St. Jos. R. R. 

Ass'n (3 Dill. 228; 14 Fed. Cag. 

132), 361. 
Karr v. Whittaker (5 N. B. B. 123; 

14 Fed. Cas. 133), 163. 
Keating v. Keefer (5 N. B. R. 132; 

14 Fed. Cas. 168), 390, 
Keenan v. Shannan (9 N. B. R. 441; 

14 Fed. Cas. 177), 31. 
Keime v. Graff (17 N. B. R. 319; 14 

Fed. Cas. 218), 154. 
Kellogg V. Russel (11 Blatchf. 519; 14 

Fed. Cas. 255), 365. 
Kelly V. Phelan (5 Dill. 228; 14 Fed. 

Cas. 268), 344. 
Kelly V. Smith (1 Blatchf. 290; 14 

Fed. Cas. 271 [1848]), 50. 
Kelly y. Strange (3 N. b. R. 8; 14 Fed. 

Cas. 273), 92. 
Kimberling v. Hartly (1 Fed. Rep. 

571), 36, 397. 
Kinsing's Assignee v. Bartholew (1 

Dill. 156; 14 Fed. Cas. 642), 123. 
Kinzie v. Winston (4 N. B. R. 84; 14 

Fed. Cas. 649), 390. 
Knickerbocker Ins. Co. v. Comstock (9 

N. B. R. 484; 14 Fed. Cas. 751), 

53. 
Knight V. Cheeny (5 N. B. R. 305; 14 

Fed. Cas. 760), 400. 
Knox V. Exchange Bank (12 Wall. 

379), 212. 
Knox V. Greenleaf (Wall., Sr., 108; 14 

Fed. Cas. 815), 363. 



Table of Cases Cited. 



xliii 



Kohlsaat v. Hoguet (4 Ben. 5G5; 14 

Fed. Cas. 835), 269. 
Krumbaar v. Burke (2 Wash. C. C. 

406; 14 Fed. Cas. 872 ri809]), 395. 



Lakin v. First Nat. Bank (13 Blatchf. 

83; 14 Fed. Cas. 9591, 62, 213. 
Lamb v. Brown (12 N. B. R. 552; 14 

Fed. Cas. 988), 156. 
Lamb v. Bamron (7 N. B. R. 509; 14 

Fed. Cas. 994), 35. 
Lamb v. Lamb (6 Biss. 420; 14 Fed. 

Cas. 1016), 213. 
Lamp Chimney Co. v. Ansonia Brass 

Co. (91 U. S. 656), 168. 
Lansing v. Manton fl4 N. B. R. 127; 

14 Fed. Cas. 1129), 31. 
Lastrapes v. Blanc (3 Woods, 134; 14 

Fed. Cas. 1164), 55, 67, 251. 
Lathrop v. Drake (91 U. S. 516), 185, 

186. 
Lathrop v. Drake (30 Leg. Int. 141; 

14 Fed. Cas. 1178), 186. 
Lathrop v. Nelson (4 Dill. 194; 14 Fed. 

Cas. 1183), 391. 
Lathrop v. Stew.art (6 McLean. 630; 

14 Fed. Cas. 1185 [1855]), 147. 
Lathrop v. Stuart (5 McLean, 167; 14 

Fed. Cas. 1185 [1850], 147. 
Lauglin v. Dock Co. (65 Fed. Rep.), 

278, 392. 
Lawrence v. Graves (5 N. B. R. 279; 

15 Fed. Cas. 71), 263. 

Lee V. Franklin Ave. German Rav. 

Inst. (3 N. B. R. 218; 15 Fed. Cas. 

155), 233, 275. 
Leech v. Dawson (23 Fed. Rep. 654), 

110. 
Leech v. Kay (4 Fed. Rep. 72), 223. 
Leggett V. Allen (104 XJ. S. 741), 194. 
Lehman v. LaForge (42 Fed. Rep. 

493), 113. 338, 358. 386. 
■ Lehman v. Smith (15 Fed. Cas. 258), 

298. 
Lehman v. Strassberger (2 Woods, 

554; 15 Fed. Cas. 254), 249. 
Leiter v. Ren. Fire In,«i. Co. (7 Biss. 

26; 15 Fed. Cas. 274), 167. 
Lemoine v. Bank of North America (3 

Dill. 44; 15 Fed. Cas. .309). 298. 
Lewis T. U. S. (92 U. S. 618), 308. 
Libby v. Hopkins (104 TJ. S. 203), 377. 
Lichtenauer v. Cheeny (8 Fed. Rep. 

876), 113. 
Liebke v. Thomas (116 V. S. 605), 246. 
Linder v. Lewis (10 Ben. 49; 15 Fed. 

Cas. 554), 108, 375. 



Linder v. Lewis (4 Fed. Rep. 318), 

165, 369. 
Lindsey v. Lambert B. & L. Ass'n (4 

Fed. Rep. 48), 
Linkmen v. Wilcox (1 Dill. 161; 5 Fed. 

Cas. 561), 356. 
Linn v. Smith (4 N. B. R. 46; 15 Fed. 

Cas. 563), 248. 
Lisberger v. Garnett (1 Hughes, 620; 

15 Fed. Cas. 574), 366. 
Little V. Alexander (1 Hughes, 171; 15 

Fed. Cas. 601), 183. 
Little V. Alexander (21 Wall. 500), 

257. 
Littlefield v. Del. & H. Canal Co. (3 

Biss. 371; 15 Fed. Cas. 621), 191. 
Livingston v. Brnce (1 Blatchf. 318; 

15 Fed. Cas. 6.58 [1843]), 336. 
Lloyd V. Ball (77 Fed. Rep. 365), 32. 
Lloyd V. Hoo Sue (5 Saw. 74; 15 Fed. 

Cas. 718), 399. 
Lloyd V. Strowbridge (16 N. B. R. 197; 

15 Fed. Cas. 731). 275, 329. 
Lloyd V. Turner (5 Saw. 463; 15 Fed. 

Cas. 732), 377. 
Lockett V. Hill (1 Woods, 552; 15 Fed. 

Cas. 744), 107. 
[Long V. Bullard (117 U. S. 617), 155. 
Long V. Connor (17 N. B. R. 540; 15 

Fed. Cas. 823), 340. 356. 
Long V. Dickerson (15 Blatchf. 459; 15 

Fed. Cas. 825), 150. 
Long V. Rogers (6 Biss. 416; 15 Fed. 

Cas. 828), 324. 
Longstreth v. Pennock (7 N. B. R. 

449; 15 Fed. Cas. 838), 311. 
Loudon V. First Nat. Bank (2 Hughes, 

420; 15 Fed. Cas. 935), 356. 
Loving V. Arnold (84 Fed. Rep. 214), 

278 
Lucas V. Morris (1 Paine, 396; 15 Fed. 

Cas. 1063 [1825]), 184. 
Lyall V. Miller (6 McLean, 482; 15 
Fed. Cas. 1124 [1855]), 396. 

1 
M. 

McAlpine v. Tourtelotte (24 Fed. Rep. 

69), 387. 
McCabe v. Winship (17 N. B. R. 113; 

15 Fed. Cas. 1224), 378. 
McCord V. McNeil (4 Dill. 173; 15 

Fed. Cas. 1301), 340. 
McFarland v. Goodman (6 Biss. Ill; 

16 Fed. Cas. 90), 84. 

McGehee v. Hentz (16 Fed. Cas. 103), 

35, 36. 
McHenry v. La Societe Francaise (95 

U. S. 58), 215, 322. 



xliv 



Table op Cases Cited. 



Mclver v. Moore (1 Cranch C. C. 90; 
16 Fed. Cas. 153 (1802)), 210. 

Mclver v. Wilson (1 Cranch C. C. 
423; 16 Fed. Cas. 154 [1807]), 379. 

McKenna v. Simpson (129 U. S. 506), 
37. 

McKinsey v. Harding (4 N. B. R. 38; 
16 Fed. Cas. 225), 180. 

McLean v. Johnson (McLean, 202; 16 
Fed. Cas. 251 [1843]), 72. 

McLean v. Klein (3 Dill. 113; 10 Fed. 
Cas. 252), 343. 

McLean v. LaFayette Bank (3 Mc- 
Lean, 185; 16 Fed. Cas. 253 
[1843]), 42, 186, 187, 340, 384. 

McLean v. LaFayette Bank (3 Mc- 
Lean, 415, 587; 16 Fed. Cas. 258, 
264 [1844-6]), 212. 

McLean v. LaFayette Bank (3 Mc- 
Lean, 503; 16 Fed. Cas. 262 
[1845]), 31. 

McLean v. LaFayette Bank (3 Mc- 
Lean, 587; 16 Fed. Cas. 264 
[1846]), 271. 325, 340, 353, .S66. 

Mcljean v. LaFayette Bank (4 Mc- 
Lean, 430; 16 Fed. Cas. 280 
[1848]), 322. 

McLean v. Eockey (3 McLean, 235; 
16 Fed. Cas. 283 [1843]), 348, 397. 

McLean v. Meline (3 McLean, 199; 16 
Fed. Cas. 282 [1843]), 183, 367. 

M. & M. Nat. Bank v. Brady's B. I. 
Co. (5 N. B. R. 491; 16 Fed. Cas. 
593), 383. 

Mace V. Wells (7 How. 272), 156. 

Main v. Glen (7 Biss. 86; 16 Fed. Cas. 
503), 47, 365. 

Maine v. Bromley (6 Fed. Rep. 477), 
279. 

Mall &" Co. V. Ullrich (37 Fed. Rep. 
653), 149. 

Marble v. Fulton (1 Hask. 462; 16 
Fed. Cas. 695), 102. 

March v. Heaton (1 Low. 278; 16 Fed. 
Cas. 700), 405. 

Marionneaux's Case (1 Woods, 37; 16 
Fed. Cas. 754), 148. 

Marks v. Barker (1 Wash. C. C. 178; 
16 Fed. Cas. 765), 377. 

Markson v. First National Bank (9 
Chi. Leg. News, 108; 16 Fed. Cas. 
768), 212. 

Markson v. Heaney (1 Dill. 497; 16 
Fed. Cas. 769), 34, 38, 185. 

Markson v. Hobson (2 Dill. 327; 16 
Fec# Cas. 774), 264. 

Marrett v. Atterbnry (3 Dill. 444; 16 
Fed. Cas. 780), 231. 

Marrott v. Murphy (11 N. B. R. 131; 
10 Fed. Cas. 782), 80. 



Marshal v. Knox (16 Wall. 551), 332, 

343 359. 
Martin' V. Fullings (3 Fed. Rep. 206), 

113. 
Martin v. Toof (1 Dill. 203; 16 Fed. 

Cas. 907), 62. 
Marvin v. Chambers (12 Blatchf. 495; 

16 Fed. Cas. 927), 323. 
Mathews v. Abbott (2 Hask. 289; 16 

Fed. Cas. 1094), 235. 
Matthews v. West (Cir. Ct. 48 Fed. 

Rep. 664), 273. 
Mattocks V. Ferrington (2 Hask. 331; 

16 Fed. Cas. 1147), 39, 203. 
Mattocks V. Lovering (16 Fed. Cas. 

1149), 379. 
Mattocks V. Rogers (1 Hask. 547; 16 

Fed. Cas. 1149), 367. 
Mattox V. Baker (2 Fed. Rep. 455), 

105, 281. 
Mattox V. Cady (7 Am. Law Rec. 613; 

16 Fed. Cas. 1154), 380. 
May V. Harper (4 N. B. R. 478; 16 

Fed. Cas. 1218), 161. 
May V. LeClaire (18 Fed. Rep. 164), 

371. 
Mayben v. Raymond (15 N. B. B. 353; 

16 Fed. Cas. 1223), 388. 
Mayer v. Bank (27 Fed. Rep. 591), 

104. 
Mayer v. Gourden (26 Fed. Rep. 742), 

98, 123. 
Mayer v. Helman (91 U. S. 496), 278. 
Mayer v. Hermann (10 Blatchf. 256; 

16 Fed. Cas. 1240), 261, 276. 
Maynard v. Tilden (28 Fed. Rep. 688), 

110. 
Mays V. Fritton (20 Wall. 414), 279. 
Mays V. Nat. Bank (64 Pa. St. 74), 

190, 406. 
Mead v. National Bank of Fayette- 

ville (6 Blatchf. 180; 16 Fed. Cas. 

1277), 288. 
Mead v. Thompson (15 Wall. 635), 194. 
Meador v. Everett (3 Dill. 214; 16 Fed. 

Cas. 1300), 352. 
Meddaugh v. Wilson (157 U. S. 333), 

220. 
Medsker v. Bonebrake (108 TJ. S. 66), 

64. 273. 
Merchants' Bank v. Slagle (106 IT. S. 

558), 320. 
aierchants' Nat. Bank v. Cook (95 TJ. 

S. 342), 278. 
Merchants' Nat. Bank v. Truax d N. 

B. R. 545; 17 Fed. Cas. 58), 264. 
Metcalf V. Officer (5 Dill. 565; 17 Fed. 

Cas. 174), 70. 
Metcalf V. Officer (2 Fed. Rep. 640), 

182, 280. 



Table of Cases Cited. 



xlv 



Metropolitan Bank v. Rogers (53 Fed. 

Rep. 776; 3 C. C. A. 666), 392. 
Meyers v. Valley Nat. Bank (18 N. B. 

R. 34; 17 Fed. Cas. 250), 346. 
Michaels v. Post (21 Wall. 398), 249. 
Michener v. Payson (13 N. B. B. 49; 

17 Fed. Cas. 259), 29, 182. 
Miller (1 X. Y. Leg. Obs. 38; 17 Fed. 

Cas. 2fi2 [1842]), 80. 
Miller v. Del., L. & W. B. Co. (17 Fed. 

Cas. 314), 213. 
Miller v. Halsted (17 Fed. Cas. 318), 

372. 
Miller v. Jones (15 N. B. R. 150; 17 

Fed. Cas. 322), 325. 
Miller t. Keys (3 N. B. R. 224; 17 

Fed. Cas. 328), 268. 
Miller v. O'Brien (9 Blatchf. 270; 17 

Fed. Cas. 345), 356. 
Miller v. Wheeler (2 Low. 346; 18 

Fed. Cas. 497), 394. 
Milner v. Meek (95 U. S. 252), 194. 
Miltenberger v. Phillips (2 Woods, 

115; 17 Fed. Cas. 424), 111. 
Minick v. Coleman (95 U. S. 266), 194. 
Minon y. Van Nostrand (Holmes, 251; 

17 Fed. Cas. 454; 1 Low. 458; 17 

Fed. Cas. 455), 42. 
Mitchell V. Great Works M. & M. Co. 

(2 Story, 648; 17 Fed. Cas. 496 

[1843]), 42, 43, 186. 
Mitchell T. McKibbin (29 Leg. Int. 

412; 17 Fed. Cas. 506), 392, 405. 
Mitchell V. Winslow (2 Story, 630; 17 

Fed. Cas. 527 [1843]), 326, 398. 
Montgomery v. Bucyrus M. W. (92 U. 

S. 257), 278. 
Morgan v. Campbell (22 Wall. 381), 

343. 
Morgan v. Mastick (2 N. B. R. 521; 

17 Fed. Cas. 752), 268, 276. 277. 
Morgan v. Thornhill (11 Wall. 65), 194. 
Morris v. Brush (2 Woods, 354; 17 

Fed. Cas. 810), 189. 
Morse v. Godfrey (3 Story, 364; 17 

Fed. Cas. 854 [1844]), 281, 357, 

366. 
Morton v. Boyd (3 How. 426), 37. 
Mott T. Maris (2 Wash. C. 0. 196; 17 

Fed. Cas. 905), 308. 
Moyer v. Adams (2 Fed. Rep. 182), 

387. 
Moyer v. Dewey (103 U. S. 301), 155, 

373. 
Murray v. Marsh (1 Brun. Col. Cas. 

22; 17 Fed. Cas. 1059 [1803]), 175. 
Myers v. Callaghan (5 Fed. Rep. 726), 

99. 



Myers v. Seeley (10 N. B. R. 411; 17 
Fed. Cas. 1118), 407. 

N. 

Nash V. LeClercq (17 Fed. Cas. 1171), 

275, 329. 
National Bank of Commerce v. Booth 

(5 Biss. 129; 17 Fed. Cas. 1202), 

291. 
National Bank v. Warren (96 U. S. 

539), 61. 
National Park Bank v. People's Bank 

(25 Int. P.ev. Rec. 169; 17 Fed. 

Cas. 1229), 122. 
Neal V. Clark (95 U. S. 704), 151, 154. 
Neill V. Jackson (8 Fed. Rep. 144), 36, 

358. 
Nelson v. Carlan (1 How. 265). 390. 
Nesbit V. Macon B. & T. Co. (12 Fed. 

Rep. 686), 275. 
New Lamp Chimney Co. v. Ansonia B. 

& C. Co. (91 U. S. 656), 168, 242. 
New Orleans N. B. A. t. Le Breton (14 

Fed. Rep. 646), 374. 
Nicholas v. Murray (5 Saw. 320; 18 

Fed. Cas. 174 [1878]), 184, 298, 

368. 
Nichols V. Baton (3 Cliff. 595; 18 Fed. 

Cas. 188 [1873]), 394. 
Nightingale (1 N. Y. Leg. Obs. 8; 18 

Fed. Cas. 238), 33. 
Noble V. Hammond (129 V. S. 65), 151, 

152. 
Norcross (5 Law Rep. 124; 18 Fed. 

Cas. 300 [1843]), 68, 71. 
Norton v. Billings (4 Fed. Rep. 623), 

408. 
Norton v. Boyd (3 How. 426), 49. 
Norton v. De La Villebeuve (18 Fed. 

Cas. 417), 111. 
Norton v. Hood (124 U. S. 20), 370. 
Norton v. Switzer (93 U. S. a^5), 104. 
Norwood (3 Biss. 504; 18 Fed. Cas. 

452 [1873]), 32. 
Nudd V. Burrows (91 TJ. S. 426), 267, 

346. 



O'Brien v. Weld (92 U. S. 81), 105. 
Ogden V. Saunders (12 Wheat. 213), 

408, 409. 
Okey v. Bennett (11 How. 33), 392. 
Oliver v. Cunningham (6 Fed. Rep. 

60), 108. 
Olney v. Tanner (10 Fed. Rep. 101), 

374. 



xlvi 



Table of Cases Cited. 



Olnev V. Tanner (18 Fed. Rep. C36), 

374. I 

Oregon Bulletin Printing & Pub. Co. ! 

(3 Saw. 014; 18 Fed. Cas. 783), Cj. 
Ostrahder v. Meunch (12 Fed. Rep. 

562), 374, 399. I 

Osborne v. MoBride (16 N. B. R. 22; 

18 Fed. Cas. 842 118761), 76. I 

Owsley V. Cobin (15 N. B. R. 489; 

18 Fed. Cas. 929), l.j4. | 



Packer v. Whittier (81 Fed. Rep. 335), 

156. 
Packham v. Burrows (3 Story, 544; 19 

Fed. Cas. 85 [1844]), 353. 
Paddopk V. Fisk (10 Fed. Rep. 125), 

396. 
Palmer v. Hussey (119 U. S. 96), 154, 

194. 
Parker v. Muggridge (2 Story. 334; 18 

Fed. Cas. 1148 [18421), 73. 
Parsons v. Caswell (1 Fed. Rep. 74), 

259. 
Partridge v. Dearborn (9 N. B. R. 474; 

18 Fed. Cas. 1279 [1873]), 259, 

338. 
Patrick v. Central Bank (1 Dill. 303; 

18 Fed. Cas. 1300 [1870]), 367. 
Payne v. Solomon (14 N. B. R. 162; 19 

Fed. Cas. 12), 53, 54. 
Payson t. Brooke (19 Fed. Cas. 17), 

182, 216. 
Pavson T. Coffin (4 Dill. 386; 19 Fed. 

Cas. 18), 111, 183. 
Payson t. Coffin (5 Dill. 473; 19 Fed. 

Cas. 18), 111. 
Payson t. Stoever (2 Dill. 427; 19 Fed. 

Cas. 27), 30. 
Peck v. Jenness (7 How. 612), 105, 

332. 
Peckham v. Cozzens (3 Fed. Rep. 794), 

370. 
Peel-ham y. Cozzens (6 Fed. Rep. 598), 

274. 
Pence y. Cochran (6 Fed. Rep. 269), 

332. 
Pennington y. Lowenstein (1 N. B. R. 

570; 19 Fed. Cas. 168), 373. 
Pennington y. Palp (1 N. B. R. 572; 19 

Fed. Cas. 169), 218. 
Penny v. Taylor (10 N. B. R. 200; 19 

Fed. Cas. 194), 42, 46, 89, 105. 
Perrin & CrafC JI. Co.. v. Pealp (17 

N. B. R. .177; 19 Fed. Cas. 230). 

253. 
Perry v. Barry (1 Cranch C. C. 204; 
19 Fed. Cas. 266), 219. 



Perry v. I.angley (1 N. B. R. 599; 19 

Fed. Cas. 280), 249. 
Phelan v. Iron Mountain Bank (4 Dill. 

88; 19 Fed. Cas. 433), 365. 
Phelps V. Clasen (Woolw. 204; 19 Fed. 

Cas. 445), 160, 167, 287. 
Phelps v. McDonald (99 V. S. 298), 36, 

109, 386. 
Phelps V. Sellick (8 N. B. R. 390; 19 

Fed. Cas. 463), 47. 
Phelps V. Sterns (4 N. B. R. 34; 19 

Fed. Cas. 465), 240. 
Pickett V. McGavick (14 X. B. R. 236; 

19 Fed. Cas. 588). 149. 
Piper V. BaldT (10 N. B. R. 517; 19 

Fed. Cas. 716), 331. 
Piatt V. Archer (9 Blatchf. 559; 19 

Fed. Cas. 8221, 31. 47, 63. 
Piatt T. Archer (13 Blatchf. 351; 19 

Fed. Cas. 834), 315. 
Piatt V. Matthews (10 Fed. Rep. 280), 

374. 
Piatt V. Preston (19 N. B. R. 241; 19 

Fed. Cas. 847). .365. 
Piatt V. Stewart (13 Blatchf. 481; 19 

Fed. Cas, 852). 329, 3.37. 
Piatt V. Stewart (11 X. B. R. 191; 19 

Fed. Cas. 860), 306. 
Plaver v. Lippincott (4 Dill. 124. 125; 

19 Fed. Cas. 862. 863), 272. 
Pollock y. Pratt (2 Wash. C. C. 490; 

19 Fed. Cas. 948 [1811]). 308. 
Pool V. McDonald (15 X. B. R. 560; 19 

Fed. Cas. 987). 115. 
Porter v. Lazear (109 U. S. 84), 99, 

100. 
Post V. Corbin (5 X. B. R. 11; 19 Fed. 

Cns. 1090), 367. 
Post V. Rouse (19 Fed. Cns. 1091). 186. 
Potter y. Coggeshall (4 N. B. R. 73; 

in Fed. Cas. 11.381, 324. 
Potter V. Wright (19 Fed. Cas. 1197), 

219. 
Potts (Crabbp. 469; 19 Fed. Cas. 1199 

[18421), 55. 
Pratt V. Bnrr (5 Biss. 36; 19 Fed. Cas. 

rAS). 82. 
Pratt V. Curtis (2 Low. 87; 19 Fed. 

Cas. ]2.->l), 367. 
Price V. Clcyenger (3 X. J. Eq. 207), 

413. 
Price V. Price (48 Fed. Rep. 823), lu9. 
Price V. Ralston (2 Dall. 60). 392. 
Pritchard y. Chandler (2 Curt. 188; 19 

Fed. Cas. i;U7 [1855]), 183. 
Purviance v. T'ninn Xat. Bank (8 N. 
B. R. 447; 20 Fed. Cas. 73), 394. 



Table or Cases Cited. 



xlvii 



B. 



R. Co. V. Delamore (114 U. S. 501), 64. 
Randolph t. Canbv fll N. B. R. 296; 

20 Fed. Cas. 257), 348. 
Ranking v. Fla., A. & G. C. R. R. Co. 

(1 N. B. R. 647; 20 Fed. Cas. 274), 

64. 
Rankins v. Third Nat. Bank (14 N. B. 

R. 4; 20 Fed. Cas. 279), 345. 
Ransom v. Geer (12 Fed. Rep. 607), 

123. 
Rawlins v. Twitchell (2 Hask. 66; 20 

Fed. Cas. 1137), 380. 
Ray V. Norseworthy (23 Wall. 128), 

403. 
Reber v. Gundy (13 Fed. Rep. 53), 257. 
Reed v. Cowley (1 N. B. R. 516; 20 

Fed. Cn.s. 433), 161. 
Reed v. Mclntyre (98 U. S. 507), 338. 
Richards v. Maryland I. Co. (8 Cranch, 

84), 213. 
Riggin V. Magwire (15 Wall. 549), 

291. 
Rison V. Knapp (1 Dill. 187; 20 Fed. 

Cas. 835), 281, 368. 
Rix V. Capitol Bank (2 Dill. 367; 20 

Fed. Cas. 846), 85. 
Robertson (1 N. Y. Leg. Obs. 20; 20 

Fed. Cas. 938 [1842]), 96. 
Robinson (7 Biss. 125; 20 Fed. Cas. 

963) 94. 
Robinson v. Hall (8 Ben. 61; 20 Fed. 

Cas. 1011), 323. 
Robinson v. Hanway (19 N. B. R. 289; 

20 Fed. Cos. 1012), ^7. 
Robinson v. Tiittle (2 H.nsk. 76; 20 

Fed. Cas. 1049), 331, 357, 368. 
Robinson r. Wis. M. & F. Ins. Co. 

Bank (9 Biss. 117: 20 Fed. Cas. 

1053), 271. 
Roby T. Colehonr (146 U. S. 153). 401. 
Roche V. Fox (16 N. B. R. 461; 20 

Fed. Cas. 1065). 24^ 
Rogers v. Palmer (102 U. S. 363), 257, 

277. 
Rogers v. Winsor (6 N. B. R. 246; 20 

Fed. Cas. 1132), 367. 
■Rosebaiini v. Garnett (3 Hughes, 662; 

20 Fed. Cas. 1193), 51. 
Rosenthal v. Martin Bank (17 Blatch. 

318: 20 Fed. Cas. 1211), 337. 
•Rosenthal v. Walker (111 U. S. 185), 

109. 111. 
Ruddells v. Simonton (3 Biss. 322; 20 

Fed. Cas. 1235), 37. 



Ruddick v. Billings (Woolw. 330; 20 

Fed. Cas. 1306), 192. 
Ruiz V. Eickerman (5 Fed. Rep. 790), 

107, 122. 
Rundle v. Murgatroyd (4 Dall. 304), 

329. 
Russell V. McCord (17 N. B. R. 508; 

21 Fed. Cas. 51 [1878]), 57, 337. 



S. 

Sabin v. Connor (21 Fed. Cas. 124 

[1871]), 346. 
Safford v. Burges (16 N. B. R. 402; 21 

Fed. Cas. 145 [1877]), 398. 
Sage V. Wyncoop (104 U. S. 319), 257. 
Sampson v. Burton (4 N. B. R. 1 ; 21 

Fed. Cas. 297 [1870]; 5 N. B. R. 

459; 21 Fed. Cas. 303 [1871]), 108. 
Sand's Case (1 V. S. L. J. 15; 21 Fed. 

Cas. 333 [1803]), 185. 
Sandusky v. National Bank (23 Wall. 

289), 192, 193, 194. 
Sanford v. Lockland (2 Dill. 6; 21 Fed. 

Cas. 358), 386. 
Sanger v. Upton (91 U. S. 56), 29. 
Sargent v. Helton (115 U. S. 348), 185. 
Sawyer v. Hoag (17 Wall. 610), 377. 
Sawyer v. Turp'n (1 Holmes. 226; 21 

Fed. Cas. 589 [1873]), 272. 
Sawyer v. Turpin (91 U. S. 114), 270. 
Scammon v. Cole (5 N. B. R. 257; 21 

Fed. Cas. 627; 3 N. B. R. 393 

[1871]; 21 Fed. Cas. 632 [1869]), 

276. 
Scammon v. Hobson (1 Hask. 406; 21 

Fed. Cas. 638 [1872]), 358. 
Scammon v. Kimball (8 N. B. R. 337; 

21 Fed. Cas. 641 [1873]), 379. 
Schrenkeisen v. Miller (9 Ben. 55; 21 

Fed. Cas. 733 [1877]), 361. 
Schulenburg v. Kabureck (2 Dill. 132; 

21 Fed. Cas. 751 [1873]). 361. 
Schulze V. Bolting (8 Biss. 174; 17 N. 

B. R. 167; 21 Fed. Cas. 754, 

[1878]), 323, 361. 
Scofield V. Morehead (2 N. B. R. 1; 21 

Fed. Cas. 780 [1868]), 181. 
Scott v. Ellery (142 TJ. S. 381), 235. 
Scott V. Kelly (22 Wall. 57), 108. 
Scott T. Little (76 Fed. Rep. 563), 109. 
Searcy v. McChord (1 Fed. Rep. 261), 

404. 
Seay v. Wilson (9 Fed. Rep. 589), 235. 
Sedgwick v. Grinnell (9 Ben. 429; 21 

Fed. Cas. 978 [1878]), 405, 407. 



xlviii 



Table of Cases Cited. 



Sedgwick v. Lynch (5 Ben. 489; 8 N. 

B. R. 289; 21 Fed. Ca.s. 981 

[1872]), 404. 
Sedgwick v. Meack (6 Blatchf. 156; 1 

N. B. R. 675; 21 Fed. Cas. 984 

[1868]), 3ff7. 
Sedgwick v. Milward (5 N. B. R. 347; 

21 Fed. Cas. 985 [1871]), 357. 
Sedgwick v. Place (1 N. B. R. 673; 21 

Fed. Oas. 998 [1868]), 369. 
Sedgwick v. Place (3 Ben. .SCO; 3 N. 

B. R. 139; 21 Fed. Cas. 986 

[1869]), 32. 
Sedgwick v. Place (3 N. B. R. 802; 21 

Fed. Cas. 999 [1869]), 32. 
Sedgwick v. Place (12 Blatchf. 163; 10 

N. B. R. 28; 21 Fed. Cas. 992 

[1874]), 328. 
Sedgwick v. Stewart (9 Ben. 433; 2] 

Fed. Cas. 104 [1878]), 236. 
Sessions v. Johnson (95 U. S. 347), 328. 
Sessions v. Romada (145 U. S. 29), 

113, 397, 407. 
Shaffer v. Pritchery (4 N. B. R. 548; 

21 Fed. Cas. 1147 [1871]), 300. 
Shainwald v. Davids (69 Fed. Rep. 

687), 33, 109, 212. 
Shainwald v. Lewis (5 Fed. Rep. 510), 

27. 
Sharp V. Doyle (102 U. S. 686), 383. 
Sharp V. Philadelphia "Warehouse Co. 
ri9 N. B. R. 378; 21 Fed. Cas. 116S 

[1880]), 265. 
Sharp V. Phil. W. Co. (10 Fed. Rep. 

379), 374. 
Shawhan v. Wherritt (7 How. 627), 

168, 359. 
Shearman v. Bingham (Holmes, 272; 

21 Fed. Cas. 1212 [1873]), 278. 
Shelley v. BUiston (18 N. B. R. 375; 

21 Fed. Cas. 1244), 332. 
Sherman v. Bank (8 Biss. 371; 21 Fed. 

Cas. 1276), 161. 
Sherman v. Traders' Nat. Bank (9 

Biss. 216; 21 Fed. Cas. 1282 

[1879]), 280. 
Shouse (Crabbe, 482; 22 Fed. Cas. 27 

[1842]). 56, 62. 
Shuman v. Fleckenstein (4 Saw. 174; 

22 Fed. Cas. 54), 355. 

Sicard v. Buffalo, N. Y. & P. R. Co. 

(15 Blatchf. 525; 22 Fed. Cas. 64), 

191, 348. 
Sidener v. Clier U Biss. 301; 22 Fed. 

Cas. 101), 376. 
Sigsby V. Willis (3 Ben. 371; 22 Fed. 

Cas. 112), 247, 2r-,r,, 288. 
Sill V. Solberg (6 Fed. Rep. 46S), 265. 



Silverman's Case (1 Saw. 410; 22 Fed. 

Cas. 135), 48, 54. 
Silverman's Case (Fed. Cas. No. 

12855), 410. 
Singer v. Jacobs (11 Fed. Rep. 559), 

374. 
Singer v. Sloan (3 Dill. 110; 22 Fed. 
Cas. 201; 11 N. B. R. 433; 22 Fed. 
Cas. 202), 277. 
Sixpenny Savings Bank v. Estate of 
Stuyvesant Bsnk (j2 BJatohf. 179; 
22 Fed. Cas. 264), 31 (i. 
Skylark, The (4 Biss. 383; 22 Fed. 

Cas. 307), 331. 
Sloan V. Lewis (22 Wall. 150), 253. 
Smith, Case of (1 Penn. L. J. 140; 22 

Fed. Cas. 415 [1842]), .338. 
Smith V. Babcock (2 Woodb. & M. 246; 

22 Fed. Cas. 432), 152. 
Smith V. Buchanan (8 Blatchf. 153; 22 

Fed. Cas. 458), 342, 357. 
Smith V. Claflin (19 N. B. R. 523; 22 

Fed. Cas. 485), 368. 
Smith V. Crawford (6 Ben. 497; 22 

Fed. Cas. 489), 112. 
Smith V. Ely (10 N. B. R. 553; 22 

Fed. Cas. 538), 327, 355. 
Smith V. Gordon (2 N. Y. Lesr. Obs. 
325; 22 Fed. Cas. 554 [1844]), 215, 
338. 
Smith V. Kehr (2 Dill. 50; 22 Fed. Cas. 

584), 83, 355, 357. 
Smith V. Little (5 Biss. 490; 22 Fed. 

Cas. 589), 265. 
Smith V. Mcl,ean (10 X. R. R. 260; 

22 Fed. Cas. 591), 265. 
Smith V. Mason (14 Wall. 419), 194, 

359, 371. 
Smith V. Teutonia Ins. Co. (4 Chi. Leg. 
News, 130; 22 Fed. Cas. 685), 58. 
Sonstiby v. Keeley (11 Fed. Rep. 578), 

352. 
Sparhawk v. Drexel (12 N. B. R. 450; 

22 Fed. Cas. 860), 243, 369. 
Sparhawk v. Richards (12 N. B. R. 

74; 22 Fed. Cas. 868), 393. 
Sparhawk v. Yerkes (12 Sup. Ct. Eep. 

104; 142 V. S. 1), 386, 397. 
Spaulding v. McGovern (10 N. B. R. 

188; 22 Fed. Cas. 891), 185. 
Spaulding v. McGovern (22 Fed. Cas. 

892), 369. 
Spaulding v. New York (4 How. 21). 

156. 
Spicer v. Ward (3 N. B. R. 512; 22 

Fed. Cas. 931), 248. 
Starkweather v. Cleveland Ins. Co. (4 
Chi. Leg. News, 175; 22 Fed. Oas, 
1093), 393. 



Table of Cases Cited. 



xlix 



Steadman v. Caswell (2 Hask. 375; 22 
Fed. Cas. 1160), 57. i 

Stephenson v. Jackson (2 Hughes, 204; 

22 Fed. Cas. 1307), 82. 

Stern, Case of (22 Fed. Cas. 1309), 

168. 
Stern v. Schonfield (22 Fed. Cas. 1310), 

161, 258. 
Stevens v. Appleton (4 Cliff. 265; 23 

Fed. Cas. 6), 184. 
Stewart v. Loomis (23 Fed. Cas. 66), 

256, 353. 
Stickney v. Wilt (23 Wall. 150), 190. 
Stillwell V. Walker (17 N. B. R. 569; 

23 Fed. Cas. 93), 192. 
Stobaugh V. Mills (8 N. B. R. 361; 23 

Fed. C.is. 110), 265. 
Storrs V. Eugle (3 Hughes, 414; 23 

Fed. Cas. 165), 213. 
Stotesbury v. Cadwallader (31 Leg. 

Int. 229; 23 Fed. Cas. 176), 213. 
Stout V. Yaeger Mill Co. (18 Fed. Rep. 

802), 278. 
Stover V. Kennedy (5 Rep. 136; 23 

Fed. Cas. 194), 259. 
Stranahan v. Gregory (4 N. B. R. 427; 

23 Fed. Cas. 216), 357. 
Strang v. Bradner (114 U. S. 555), 151, 

152. 
Street v. Dawson (4 N. B. R. 207; 23 

Fed. Cas. 233), 342. 
Streeter v. Jefferson Co. Bank (147 V. 

S. 36), 239. 
Stucky V. Mn sonic S. Bank (108 

U. S. 74), 273. 
Sturges v. Colby (2 Flip. 163; 23 Fed. 

Cas. 308), 286. 
Sturges V. Crowninshield (4 Wheat. 

122), 408. 
Sullivan v. Hieskill (Crabbe, 525; 23 

Fed. Gas. 349 [1843]), 369. 
Sutherland v. Lake Superior Ship 

Canal, Railroad & Iron Co. (9 N. 

B. R. 298; 23 Fed. Cas. 459), 184. 
Swan V. Robinson (5 Fed. Rep. 287), 

275, 279. 
Sweatt V. Boston. H. & E. R. R. Co. 

(3 Cliff. 339; 23 Fed. Cas. 530), 

64. 
Swope V. Arnold (5 N. B. B. 148; 23 

Fed. Cas. 574), 333. 



Tappan v. Whittemore (15 Blatchf. 

440; 23 Fed. Cas. 695), 112. 
Taylor (1 Hughes, 617; 23 Fed. Cas. 

727), 101, 106. 
Taylor v. Irwin (20 Fed. Rep. 615), 

386, 398. 



Taylor v. Rash (5 N. B. R. 399; 23 

Fed. Cas. 789), 407. 
Teuu.v V. Collins (4 N. B. R. 477; 23 

Fed. Cas. S48), 14'"», 177. 
Thames v. Miller (2 Woods, 564; 23 

Fed. Cas. 887), 331, 357. 
Thatcher v. Rockwell (105 U. S. 467), 

104. 
Thelso V. Cain (23 Fed. Cas. 906), 87. 
Thistle V. Hamilton (4 Dill. 162; 23 

Fed. Cas. 920), 171. 
Thomas v. Blythe (55 Fed. Rep. 961), 

110. 
Thomas v. Oruttenden (4 Cranch O. 

C. 71; 23 Fed. Cas. 936 [1830]), 

400. 
Thomas v. Minot (10 Gray, 263), 77. 
Thomas v. Woodbury (1 Hask. 559; 

23 Fed. Cas. 982), 272. 
Thornhill v. Bank of Louisiana (3 N. 

B. R. 435; 23 Fed. Cas. 1135; 1 

Woods, 1; 23 Fed. Cas. 1139), 30, 

193 
Thornhill v. Link (8 N. B. R. 521; 28 

Fed. Cas. 1143), 368. 
Tiernan v. Woodruff (5 McLean, 350; 

Z3 I'ed. Cas. IzU6 LJ^*^^J), ^36. 
Tiffany v. Boatman's Institution (18 

Wall. 375), 273. 
Tiffany v. Lucas (15 Wall. 410), 370. 
Tifft V. Ironclad Mfg. Co. (16 Blatchf. 

48; 23 Fed. Cas. 1217), 186. 
Tinker v. Van Dyke (14 N. B. R. 112; 

23 Fed. Cas. 1297), 278. 

Todd v. Townsend (9 Am. Law Rev. 

150; 23 Fed. Cas. 1352), 329. 
Toof V. Martin (13 Wall. 40), 58, 266, 

276. 
Townsend v. Leonard (3 Dill. 370; 24 

Fed. Cas. 102), 330. 
Traders' Bank v. Campbell (14 Wall. 

87), 257, 258. 
Traer v. Clues (115 U. S. 528), 401. 
Trafton (2 Low. 505; 24 Fed. Cas. 

122), 117. 
Tremont National Bank (2 Low. 409; 

24 Fed. Cas. 184), 98. 

Trimble v. Woodhead (102 U. S. 647), 

373. 
Triplet 'v. Hanley (1 Dill. 217; 24 Fed. 

Cas. 203), 280. 
Trust Co. v. Sedgwick (97 U. S. 304), 

373. 
Trv-v c's of M. B. F. &- T>. P. Ban';: v. 

Bosseiux (3 Fed. Rep. 817), 112, 

371. 
Tua V. Carrlere (117 U. S. 201), 408. 
Tucker v. Oxley (5 Ci-anch, 35), 74, 

377. 



IV 



Table of Cases Cited. 



Tufts V. Matthews (10 Fed. Eep. 609), 

392 
Turnbuil v. Payson (95 U. S. 418), 29. 
Tuttle V. Truax (1 N. B. B. 601; 34 

Fed. Cas. 397), 327. 
Tyler V. Angevine (15 Blatchf. 536; 

24 Fed. Cas. 458), 112, 193. 



U. S. V. Smith (13 N. B. R. 61; 27 

Fed. Cas. 1170), 198. 
V. S. V. Swett (2 Hask. 310; 28 Fed. 

Cas. 3), 198. 
U. S. V. The Rob Roy (1 Woods, 42; 

27 Fed. Cas. 873), 151. 

U. S. V. Throckmorton (8 N. B. R. 309; 

28 Fed. Cas. 158), 151, 301. 

U. S. V. Tusey (6 N. B. R. 28i; 27 

Fed. Cas. 631), 198. 
U. S. V. Zerega (28 Fed. Cas. 804 

[1856]), 151. 
Upshur T. Brisco (138 TJ. S. 365), 153. 
Upton V. Hansbrough (8 Biss. 417; 28 

Fed. Cas. 839), 29, 30. 
Upton V. Jackson (1 Flipp. 413; 28 

Fed. Cas. 844), 30, 216. 



Ungewitter v. Von Sachs (4 Ben. 167; 

24 Fed. Cas. 531), 348. 
U. S. V. Barnes (81 Fed. Rep. 705), 

308. 
U. S. V. Bayer (4 Dill. 407; 24 Fed. 

Cas. 1046), 107. I 

U. S. T. Block (4 Saw. 211; 24 Fed. ' 

TT S^^' ■^^^^' '^^'^\^ ^ A T> Qm Upton V. McLaughlin (105 U. S. 640), 
U. S. V. Brawner (7 Fed. Rep. 86), m 

108. I ^■^^• 

V. S. V. Clark (1 Low. 402; 25 Fed. I 
Cas. 446), 56, 95. I 

U. S. y. Conngr (3 McLean 573; 25 yanderhoof y. City Bank of St. Paul 
Fed. Cas. 595 [1842]), 96, 193. | ^^ j^-^^ ^^g. ^g Fed. Cas. 967), 

342. 
Van Kleeck v. Miller (19 N. B. R. 484; 



V. 



U. S. V. t'.rnne i:-i Oliff. 211; lio Fed. 
Cas. 689), 196. 



U. S. v. Davis (3 McLean, 483; 25 

Fed. Cas. 780 [1844]), 151. 
U. S. V. DemiuK (4 McJUeau. 3; 25 

Fed. Cas. 816 [1845]), 196. 
U. S. v. Dobbins (25 Fed. Cas. 876 

[1842]), 101. 
U. S. V. t'lsher (2 Cran"!!. .S.58), 
U. S. V. Fox (95 U. S. 670), 19S. 
U. S. Frank (2 Biss. 263; 25 Fed. Cas. 

1205), 197. 
U. S. V. Geary (4 N. B. R. 534; 25 

Fed. Cas. 1272), 197. 
U. S. V. Herron (20 Wall. 251), 151. 
U. S. T. Hooe (3 Cranch, 73), 
U. S. V. King (Wall. Sr. 13; 26 Fed. 

Cas. 788 [1802]), 151. 
U. S. V. Latorre (8 Blatchf. 134; 26 



I 28 Fed. Cas. 1025), 36, 272, 286, 

368. 
Van Kleeck v. Thurber (28 Fed. Cas. 

1031 [1842]), 62, 170. 
Verselius v. Verselius (9 Blatchf. 189; 

28 Fed. Cas. 1169), 184. 
Vetterleiu v. Barnes (6 Fed. Rep. 693), 

72. 
Vogle T. Lathrop (4 N. B. R. 439; 28 

Fed. Cas. 1246), 276, 331, 341. 
Voight v. Lewis (14 N. B. R. 548; 28 

Fed. Cas. 1257), 349. 
Voils V. Parker (4 Fed. Rep. 210), 332. 



W. 



Fed. Cas. 872), 197. ,_^ , ., ,_ , ,„ ,>, ti tj qir. 

U. S. y. Lewis (13 N. B. R. 38; 28 , ^adsworth v. Tyler (2 N. BR. 316; 

Fed Gas 9201 80 S07 i ^8 Fed. Cas. 1820), 56, 355. 

U. S. ;. Myws (16 N. B.'r. 387; 27 Wager v. Hall (16 Wall. 584), 261, 

Fed. Cas. 49), 197. "' " "" '" " '" """"" "" "" 

U. S. Y. Nichols (4 McLean, 23; 27 

Fed. Cas. 151 [1845]), 197 



U. S. V. Passmore (4 iJall. 372; 27 

Fed. Cas. 458 [1804]), 198. 
U. S. V. Ponn (IH N. B. R. 404; 27 

Fed. Cas. 490), 198. 
U. S. V. Prescott (2 Biss. 325; 27 Fed. 

Cas. 614), 197. 
U. S. V. Prescott (2 Dill. 405; 27 Fed. 

Cas. 616), 198. 



Wait V. Bulls Head Bank (19 N. B. R. 

500; 28 Fed. Cas. 1338), 328, 827, 

328. 
Wakeman v. Hoyt (5 Law Rep. 309; 

28 Fed. Cas. 1350 [1842]), 57, 59. 
Walbruu y. Babbitt (16 Wall. 577), 

870. 
Wald y. Wehl (6 Fed. Rep. 163), 168, 

370. 
Walker v. Reister (102 U. S. 467), 

393. 



Table of Cases Cited. 



Walker r. Seigel (12 N. B. R. 394; 29 

Fed. Cas. 49), 38. 
Walker v. Towner (4 Dill. 165; 29 Fed. 

Cas. 57), 112. 
Wallace v. Loomls (97 U. S. 146), 405. 
Warford v. Noble (19 Am. Law Reg. 

44; 29 Fed. Cas. 227), 100. 
Warford v. Noble (2 Fed. Rep. 202), 

100. 
AVariug v. Buchanan (19 N. B. R. 

502; 29 Fed. Cas. 228), 201, 266, 

341. 
Warner v. Cronkhite (6 Hiss. 453; 29 

Fed. Cas. 243), 152. 
Warner v. Spooner (3 Fed. Rep. 890), 

285. 
Warren v. Del., L. & W. R. Co. (7 N. 

B. R. 451; 29 Fed. Cas. 271), 361. 
Warren v. Uarber (1 Hughes, iiOT; 20 

Fed. Cas. 275). 27!». 
Warren v. Moody (122 U. S. 132), 274. 
Warren v. Tenth Nat. Bank (9 

Blatchf. 193; 29 Fed. Cas. 286), 

190. 
Warren v. Tenth Nat. Bank (10 

Blatchf. 493; 29 Fed. Cas. 287), 

258, 275, 361. 
Warren v. Tenth Nat. Bank (5 Ben. 

395; 29 Fed. Cas. 284), 275, 276. 
Watson T. Citizens' Savings Bank (2 

Hughes, 200; 29 Fed. Cas. 427), 

30. 
Watson V. Lemar (29 Fed. Cas. 424 

[1842]), 343. 
Webb V. Sachs (4 Saw. 158; 29 Fed. 

Cas. 523), 57, 62, 258, 265, 275, 

370. 
Webster v. Woolbridge (3 Dill. 74; 29 

E'ed. Cas. 560), 330. 
Wehl V. Wall (3 Fed. Rep. 93), 372. 
West Phil. Bank v. Dickson (95 U. S. 

180), 278. 
Whiston V. Smith (2 Low. 101; 29 Fed. 

Cas. 944), 322, 352. 
White V. Crawford (9 Fed. Cas. 371), 

233. 
White V. Howe (3 McLean, 291; 29 

Fed. Cas. 1019 [1842]), 147. 
White V. Jones (6 N. B. R. 175; 29 

Fed. Cas. 1020), 405. 
Whitman v. Butler (8 N. B. R. 487; 29 

Fed. Cas. 1063), 401. 
Wickham v. Valle (11 N. B. R. 83; 29 

Fed. Cas. 1145), 393. 
Wicks T. Perkins (1 Woods, 383; 29 

Fed. Cas. 1146), 323. 
Wight T. Condict (154 U. S. 666), 71. 



Wight y. Muxlow (8 Ben. 52; 29 Fed. 

Cas. 1174), 258, 277. 
Wilbur V. Wilson (29 Fed. Cas. 1197). 

330. 
Wilkins v. Davis (2 Low. 511; 29 Fed. 

Cas. 1248), 68, 69, 73, 82. 
Wilkinson v. Babbitt (4 Dill. 207; 29 

Fed. Cas. 1253), 308. 
Wilkinson v. Barnard (9 Ben. 249; 29 

Fed. Cas. 1254), 39. 
Williams v. Heard (140 U. S. 529), 

386. 
Williamson v. Colcord (13 N. B. R. 

319; 30 Fed. Cas. 9 [1875]), 891. 
Wills V. Claflin (92 U. S. 135), 182. 
Wilmot V. Mudge (103 U. S. 217), 123. 
Wilson V. Atlantic & St. L. R. Co. (2 

Fed. Rep. 459), 407. 
Wilson V. Brinkman (2 N. B. R. 468; 

30 Fed. Cas. 114), 341. 
Wilson V. Childs (8 N. B. R. 527; 30 

Fed. Cas. 116 [1873J), 832, am. 
Wilson V. City Bank (17 Wall. 473), 

257. 
Wilson V. Nat. Bank (3 Fed. Rep. 

391), 189, 378. 
Wilson V. Stoddard (4 N. B. R. 254; 30 

Fed. Cas. 225 [1870]), 267. 
Winchester v. i-ieisneli (j.±9 U. S. 450; 

12(i V. S. 278). 39. 
Winsor v. Kendall (3 Story, 507; 30 

Fed. Cas. 320 [1844]), 272. 
Winsor v. JUcLeOan (2 Storv. 492; 30 

Fed. Cas. 323 [1843]), 398. 
Winter v. Railway Co. (2 Dill. 487; 30 

Fed. Cas. 329 [1873]), 64. 
Wisner v. Brown (22 U. S. 214), 110. 
Wiswall V. Campbell (93 U. S. 347), 

194. 
Withrow V. Fowler (7 N. B. R. 239; 80 

fed. Cas. 402 [laTZi), 2i9. 
Witt V. Hereth (6 Biss. 474; 80 Fed. 

Cas. 404 [1875]), 258. 
Wolf V. Stix (99 TJ. S. 1), 155, 156. 
Wood V. Bailey (21 Wall. 640), 188. 
Wood V. Owings (1 Cranch, 239), 274. 
, Wood V. Wright (4 Fed. Rep. 511), 
I 387. 
Woods V. Buckewell (2 Dill. 38; 30 
I Fed. Cas. 531 [1872]), 190. 
Woolfolk V. Murray (10 N. B. R. 540; 
I 30 Fed. Cas. 600 
I Woolfolk V. Nesbit (154 U. S. 650), 
I .370. 
Wright V. Filley (1 Dill. 171; 4 N. B. 
R. 610; 30 Fed. Cas. 672 [1870]), 
59. 



lii 



Table cp Cases Cited. 



Wright V. Johnson (8 Blatchf. 150; 4 
N. B. R. 626; 30 Fed. Cas. 678 
[1871]), 213. 

Wylie V. Smith (2 Woods, 673; 30 Fed. 
Cas. 732 [1875]), 286. 

Y. 

Yancy v. Cothran (32 Fed. Rep. 687), 

113. 
Yeatman v. Savings Institution (95 

U. S. 764), 349, 398. 
York's Case (1 Abb. [U. S.] 503; 4 

N. B. R. 479; 30 Fed. Cas. 814 

[1870]), 164, 192. 



Zahm T. 

Cas. 
Zarppas' 

Fed. 
Zeiber v, 

239; 

104. 
Zep"nnk 

154. 
Zuba V. 

239; 

306. 



Fry (9 N. B. R. 546; 30 Fed. 

904 [1874]), 259, 405. 
Case (4 Law Rep. 480; 30 
Cas. 916 [1842]), 107, 155. 

. Hill (ISaw. 2(jb: 8 .\. B. R. 

30 Fed. Cas. 917 [1870]), 

V. Card (11 Fed. Rep. 295), 

Hill (1 Saw. 268; 8 N. B. R. 
30 Fed. Cas. 917 [1870]), 



ABBREVIATIONS. 



Abb. (U. S.) Abbott's United States Beports. 

Alb. L. J Albany Law Journal. 

Amer. Law Reg American Law Register. 

Ben Benedict's District Court Reports. 

Blss Bissell's Reports. 

Blatchf Blatchford's Circuit Court Reports. 

Bond Bond's Reports. 

Brun. Ool. Cas Brunner's Collected Cases. 

Chi. Leg. News Chicago Legal News. 

Cin. Law Bui Cincinnati Law Bulletin. 

Cin. Law J Cincinnati Law Journal. 

Cliff Clifford's Beports. 

Crabbe Crabbe's Reports. 

Cranch C. C Cranch's Circuit Court Reports. 

Deady Deady's Reports. 

Dill Dillon's Circuit Court Reports. 

Fed. Cas Federal Cases. 

Fed. Rep Federal Reporter. 

Flip Flippin's Beports. 

Law Rep Law Reporter. 

How Howard's United States Supreme Court Reports. 

Hughes Hughes' Reports. 

Law Rep Law Reporter. 

Leg. Int Legal Intelligencer. 

Low Lowell's Decisions. 

McLean McLean's Reports. 

N. B. R National Bankruptcy Register Reports. 

N, J.'' Law J New Jersey Law Journal. 

N. Y. Leg. Obs New York Legal Observer. 

Pa. St Pennsylvania State Reports. 

Penn. L. J Pennsylvania Law Journal. 

Saw Sawyer's Reports. 

Story Story's Reports. 

U. S United States Supreme Court Reports. 

Wall Wallace's United States Supreme Court Reports. 

Wall. Sr Wallace's Reports (Circuit Court). 

West. L. J Western Law -Journal. 

Woodb. & M Woodbury and Minot's Reports. 

Woods Woods' Reports. 

Woolw Woolworth's Circuit. Court Reports. 



EDITOR'S NOTE. 



The act of Congress " To establish a uniform sygtem of bank- 
ruptcy throughout the United States," approved July 1, 1898, is a 
departure, and, in some of its provisions, a radical departure from 
previous statutes upon that subject either in the United States or 
Great Britain. It is the purpose of this volume to give the text 
of the present law, and under each section syllabi of such decisions 
by the Supreme, Circuit and District courts of the United States 
as will aid in construing it. 

The intelligent practitioner will not fail to realize that decisions 
under a statute should be interpreted in the light of its language; 
and it is reasonable to request that this guiding principle shall be 
borne in mind in applying the opinions that are digested in this 
volume. For the most part, these decisions were rendered under 
the Act of 1867, and in other cases, the fact is stated or made to 
appear from the year in which the decision was rendered, which is 
added to the note. The text of previous laws of the United States 
on the subject of bankruptcy, and the several acts amendatory 
thereof, with the dates of their approval, is appended, and will be 
found of assistance in giving effect to the decisions here sum- 
marized. 

It will be noted that the officer known as the " register " under 
the Act of 1867 is now designated as " referee," and that the 
duties devolved upon the " assignee " by the provisions of that law 
are to be performed substantially by a " trustee," under the pres- 
ent act. 

It has been sought to arrange the notes under the sections to 
which they respectively apply. This work has been attended with 



4 Editor's Note. 

great difficulty, and any failure to perform it satisfactorily is not 
to be charged wholly to the editor. For example: Section 3 
defines acts of bankruptcy, and of these voluntary preferences 
form an important part; but that subject i^ treated in section 60, 
and again in sections 67 and 70. So actions by trustees to set 
aside fraudulent transfers are referred to in several sections; and 
this is true of other provisions. To meet this difficulty, which 
rendered a perfect classification impossible, cross-references will 
be found; and an unusually comprehensive index will serve as a 
further guide. 

It will be observed that in repeated instances there is a conflict 
between the decisions here compiled. It is quite alien to the pur- 
pose of this work to weigh, reconcile or distinguish such opinions. 
The reader will bear in mind that for the most part the rules of 
equity jurisprudence govern proceedings in bankruptcy, and will 
apply the principle that in such cases the decision is limited by the 
particular facts in the case. I^othing is here attempted except a 
reference to the authority. 

It is not to be predicated of any work of this character that 
it will be free from imperfections; but the conviction is coniidently 
expressed that the opinions of the federal courts on the subject of 
bankruptcy have been exhaustively collated and accurately digested, 
and that the work will be of considerable assistance to the bench 
and bar, and equally to students, in advising them of the estab- 
lished principles of jurisprudence respecting this important subject. 

The editor desires to acknowledge the assistance of Hon. Alex. 
C. Botkin, chairman of the Commission to Revise and Oodify the 
Criminal and Penal L^ws of the United States, who rendered 
such services as his official duties would permit in the preparation 
and arrangement of the notes. 

New York, Dec. 20, 1898. 



INTRODUCTORY. 



The etymology of the word " bankruptcy " carries us to Florence 
when it occupied a prominent place among the commercial cities of 
the world. It was the custom there, when a merchant failed tO' pay 
his debts, to break his bench or counter, and to that usage is to be 
traced the derivation of the word that has come to be attached to 
systems of legislation that possess no slight importance in the 
history of the race. 

It should be here stated, however, that laws respecting insolvency, 
or the willful refusal of debtors to discharge their obligations, are 
older than the word. Such ordinances date back at least to the 
Draconian code, which was in force six centuries before the 
Christian era, when Florence was a village of huts on the marshes 
of the Amo. The Twelve Tables dealt with this subject with char- 
acteristic severity, and among other provisions permitted creditors 
to dismember the body of their debtor. 

But " bankruptcy " has a more restricted signification. Its 
germinal principle is to be found in the cessio bonormn of the 
Roman law during the time of Oaesax. Under its more humane 
provisions, the debtor who surrendered all of his goods to his 
creditors was relieved of the harsh penalties of the older systems, 
and, in the course of time, they were further mitigated by dis- 
charging him of his obligations. This is the distinguishing feature 
of modem bankruptcy. 

The first English law on this subject was enacted in 1542 during 
the reign of Henry VIII. It was essentially a penal statute. 
Debtors who fied the kingdom or concealed themselves were made 
criminals, and their effects were seized and distributed among their 



6" Intboductobt. 

creditors witkout extinguishing their obligations. These provisions 
were applied to aU who " craftily obtaining into their hands great 
substance of other men's goods, do suddenly flee to parts unknown, 
or keep their houses, not minding to pay, or. return to pay, but at 
their own wills and pleasures consume the substance obtained by 
credit from other men for their own pleasure and delicate living, 
against all reason, equity and good conscience." 

Under this statute the administration of the estates of bankrupts 
was devolved immediately upon the Lord Chancellor and other 
high officers. This tended to fix a principle that it may be profit- 
able to call to the attention of the reader, viz., that jurisdiction un- 
der laws respecting bankruptcy was exercised in conformity to the 
rules of equity. The practice was preserved after the adoption of 
the first amendment, which occurred in the time of Elizabeth. It 
made an important change in procedure by authorizing the Lord 
Chancellor to appoint commissioners who should take possession of 
the property of the bankrupt and dispose of it for the benefit of 
creditors. 

As we have stated, the Court of Chancery retained its super- 
visory jurisdiction, and equitable principles still obtained in the 
administration of estates. But the Statute of Elizabeth effected 
two departures from the previous law that were of very considerable 
moment. By the first of these, the law was restricted in its opera- 
tion to traders; and this feature persisted in the legislation of 
England until 1861, and was copied in the first bankruptcy act 
adopted in the United States, and, indeed, in the law of 1841, 
though in the latter, the meaning of the word was enlarged to in- 
clude bankers and some other classes. 

Again, in the Statute of Elizabeth, we first find the term, " acts 
of bankruptcy." Certain acts and practices were designated upon 
the commission of which a debtor could be declared a bankrupt, and 
such adjudication was fundamental to the authority of the com- 
mission to seize his property and distribute it. Vari-ous changes. 



Intkoductoey. ij 

have been made from time to time as to what constitutes sufficient 
grounds for such a decree, but we have no knowledge of any law in 
England or this country that does not make some " act of bank- 
ruptcy " a prerequisite to the exercise of the jurisdiction in involun- 
tary proceedings. 

It would scarcely be of interest to trace the evolution of pro- 
cedure through the successive laws of England. The next im- 
portant change in the history of the system was effected by the 
Statute of Anne in the year 1706. It relieved bankruptcy of the 
character that had been imposed upon it by previous statutes, that 
of being a statutory crime, for which the debtor's person, as well as 
his property could be seized; but it did much more. It provided 
that when the debtor should have surrendered all of his property 
to the commission, and complied with all of the requirements of the 
law, he should receive a certificate of conformity, and that this cer- 
tificate, upon being confirmed by the Lord Chancellor, should 
operate as a discharge of his person, and any property that he might 
subsequently acquire, from all debts owing by him at the time of his 
bankruptcy. 

This humane enactment has been followed in all subsequent legis- 
lation on the subject. It recognized that the object of the 
system is two-fold: (1) To dedicate the property of an insolvent 
debtor to the ratable payment of his debts; and (2) to grant 
him a discharge from his existing obligations, to the end that he 
may be restored to the activities of life, freed from the burdens 
visited upon him by previous misfortunes in business. It may be 
justly remarked that there is nothing more to be accomplished by 
any law on the subject; all other provisions are matters of detail 
more or less effectively designed to accomplish these ends. 

The English act of 1825 was principally a codification of existing 
laws that were scattered through the statute books of more than 
three centuries in confusion and chaos. 



8 Ikteoductobt. 

Bari apparent, nantes in gurgite vasto. 
At the same time, it introduced some amendments. These were 
partly directed to the establishment of more efficient methods for 
the discovery of assets and the realization of the full value of the 
bankrupt's estate. A provision was also inserted for the adjustment 
and proof of contingent and unliquidated claims, which were ex- 
eluded under previous laws. But the most important of the amend- 
ments effected by the act of George IV was the establishment of 
voluntary bankruptcy. Upon this subject, Mr. E-obson, in his 
" Treatise on the Law of Bankruptcy," says : 

This statute also contained a provision enabling a trader to be accessory 
to his own bankruptcy, by authorizing a commission to issue at the in- 
stance of a creditor upon a declaration of Insolvency by the debtor; or, 
in other words, it authorized a concerted bankruptcy, which had 
previously been regarded as a fraud on the bankrupt law. The prin- 
ciple of this provision was still further recognized by subsequent statutes, 
to the extent of allowing a debtor to petition for an adjudication against 
himself. The policy of allowing a debtor to petition for adjudication 
against himself has been much canvassed, and was not authorized by 
the Bankruptcy Act, 1869, although It allowed a declaration of insolvency 
to be filed by a debtor as the foundation of an adjudication against him 
on the petition of a creditor; and also proceedings to be instituted by a 
debtor for the liquidation of his affairs In the same manner as If he had 
become bankrupt 

In the act of which we are speaking (1825), we find the first in- 
troduction of the practice of relieving the estate of bankrupts from 
the jurisdiction of the courts by compositions. It provided that the 
commission might be superseded when a specified majority of cred- 
itors, in number and amount, signified their willingness to accept a 
certain percentage of their claims. This law was infirm in accom- 
plishing the end sought, and unjust in its operation in that it did not 
telease the debtor from the claims of dissenting creditors. 

The law of 1831 established the Court of Bankruptcy, consisting 
originally of four judges and six commissioners. The judges were 
constituted a court of review, and provision was made for an ap- 
peal from it to the Lord Chancellor, and a limited appeal from him 



Introductory. 9 

to the House of Lords on matters of law and equity. It may be 
deserving of remark in this connection that our District Court, in 
the exercise of its jurisdiction in bankruptcy, is a distinct court. It 
was so decided under the law of 1867, and it does not appear that 
there is anything in the present act that affects this condition. 

We have now witnessed the successive introduction in the laws of 
England of the essential principles of modern bankruptcy. It can 
not be desirable for the American reader to follow step by step the 
subsequent legislation that has mainly been addressed to reforming 
the procedure. The statute of 1861 was the earliest to repeal the 
provision which confined the operation of the law to traders. The 
present law is that originally enacted in 1883, and amended in 1890. 
It is more severe than some of its predecessors in the conditions 
upon which a debtor is entitled to receive a discharge. 

It would not be practicable, even if it were profitable to consider 
at length, the legislation of other countries on this subject. The 
house committee on the judiciary of the Fifty-fourth Congress, in 
a report of notable value, as the result of exhatistive researches, 
gave a list of twenty-nine countries that have bankruptcy laws, 
and this roster included all of the great nations of the earth, and 
many of the smaller ones, from Germany with a population of 
fifty millions, to Costa Rica with only two hundred thousand. The 
report adds: 

The committee did nat ascertain whether or not there is a bankruptcy 
law in Chile, Colombia, Dominican Eepublic, Hawaii, Japan, Korea, Peru, 
Syria, Switzerland, or Venezuela. 

Aside from China and the United States, and possibly Japan, there are 
no countries of any considerable Importance but what have bankruptcy 
laws. 

In Guadeloupe there is no relief whatever for a bankrupt. 

In Siam " there are no bankruptcy laws as we understand them. 
When a man's assets fall short of his liabilities, he either compounds with 
his creditors or leaves the country hurriedly. If taken, his own person 
and those of his family may be held until the debt be paid." 

In China " the various foreign nationalities, ececept the United States, have 
bankruptcy laws which are enforced against their nationals, those of 



10 - Inteoductory. 

Germany being very strict, the others perhaps less so. * * * There 
never was such a law in existence among the Chinese as a bankruptcy 
law." 

"All delinquents [in China] pass into the dishonored class and are soon 
put under process of coercive termination of a business career, and are 
subject to punishment by bamboo blows." 

" The laws against bankrupts [in China] are theoretically very severe, a 
failure of $1,500 to $5,000 entailing banishment, and from $5,000 upward 
summary decapitation. No distinction is made between fraudulent bank- 
ruptcy and unavoidable ones." 

In Russia " the right to resume depends upon the good will of the 
creditors. If a compromise is effected, the bankrupt may at once resume, 
but a dissatisfied creditor, by a monthly payment of $2.25, can keep the 
bankrupt imprisoned until the debt is paid. Fraudulent bankrupts are 
punished by banishment to Siberia. There are no relief acts in bank- 
ruptcy." 

In Liberia " when a person in business fails he must maJie an assign- 
ment of all his property, except one bed, one table, two chairs, cooking 
utensils, and so much wearing apparel as is privileged from execution, 
for the benefit of his creditors and * * * make oath that his assign- 
ment is true and correct; and must enter into bond, with good sureties, 
and he can not resume business for three years after the assignment." 

When a person fails in Switzerland he loses his civil rights. 

Legislation in the United States respecting insolvent debtors lias 
been attended with great difficulty and no slight confusion on ac- 
count of our peculiar system of States, and the dual sovereignty 
consequent thereupon. The Constitution conferred upon Congress 
the power to pass uniform laws on the subject of bankruptcies; but 
it remained for the courts to determine what ejBfect this provision 
has upon the authority of State legislatures. In the case of Sturges 
V. Crowinshield (4 Wheaton, 122), the right of a State to pass a 
bankrupt law was considered, and this has since been recognized as 
the leading authority on the question. 

In 1811, the State of New York had passed a law " for the benefit 
of insolvent debtors and their creditors," which provided for the dis- 
charge of the debt upon a surrender by the debtor of his property; 
and it was contended that this was in effect a bankrupt law, and as 
such was not within the legislative power of the state under the 
federal Constitution. Chief Justice Marshall, delivering the opin- 



Intkoductoky. 11 

ion of the court, pointed out the close relation between bankrupt 
laws and insolvent laws, and the difficulty of defining the distin- 
guishing characteristics of each. He held, however, that the dif- 
ference was not material, and that the states had, in the absence of 
legislation by Congress, the power to enact bankruptcy laws. 

This proposition has ever since been followed. Insolvency laws, 
varying widely in their provisions, have found places on the statute 
books of most of the states. So long as there is in force no act of 
Congress on bankruptcy, these laws are allowed full effect, except, 
of course, that they can have no efficacy as to creditors outside the 
jurisdiction of the states in which they are respectively enacted. 
When, however. Congress passes a bankrupt act, its effect is to sus- 
pend the operation of state laws that conflict therewith, or tend to 
withdraw the administration of the estates of bankrupts from the 
federal courts. In other words, the power of Congress over the 
subject, when exercised, is supreme and exclusive. 

The first law of Congress under the authority conferred by the 
Constitution was passed in 1800. It represents the exact stage that 
the legislation of the English Parliament on the subject had reached 
at the date of its passage; that is, between the Statute of Anne and 
the Statute of George IV. It provided only for involuntary pro- 
ceedings, as it was twenty-four years later that the law was amended 
in England so as to permit a debtor to be adjudged a bankrupt on 
his own petition. Again, it was limited in its operation to traders. 

It may be deserving of remark in passing that the question was 
once mooted whether it was competent for Congress to legislate 
upon the bankruptcy of others than traders. It was contended in 
behalf of the negative of this question that such a limitation ex- 
isted in the laws of England when the Constitution was adopted, and 
that it attached to the power vested in Congress. Mr. Hotchkiss, in 
his valuable article on " Bankruptcy Laws, Past and Present," men- 
tions that in 1817, Judge Livingston expressed a doubt on this sub- 
ject. Later, however, the doubt was solved by conclusive decisions 



13 Ijstteoductory. 

to the effect that the authority of Congress over bankruptcies em- 
powered it to pass laws applicable to all classes of persons that it 
should choose to embrace within their provisions. 

The law of 1800 was in operation only a little over two years, 
being repealed in 1803. It was thirty-eight years later that the 
next act was passed. The panic of 183*7 had filled the country 
with commercial wrecks, and there was a strong sentiment, which 
operated slowly, but at length effectively upon Congress in favor 
of legislation for the relief of debtors. The result was the statute 
of 1841. It was limited to traders, but, as already stated, the word 
was made to include bankers, brokers, factors, underwriters and 
marine insurers. It also introduced the principle of voluntary 
bankruptcies, which had been established in England by the law of 
1825. 

The statute of 1841 was repealed by the same Congress that 
passed it. Wliatever its effect may have been in accomplishing the 
objects for which it was designed, it served the useful purpose of 
eliciting from the bench opinions of great value in fixing the funda- 
mental principles of banliruptcy jurisprudence. Thereafter for a 
quarter of a century, unfortunate debtors were left to such relief 
as the insolvency laws of the states could afford them, and these 
came to be the agencies of monstrous frauds, aside from the infirm- 
ities and inequalities that were inseparably incident to their limited 
operation. 

It required another financial crisis to stimulate Congress to ac- 
tion. This occurred in 1866, and a year later there was enacted 
the only bankrupt act that has remained in force for any consider- 
able period. It was little else than a copy of the insolvency law of 
Massachusetts, which had been on the statute books of that state 
for thirty years, a fact that greatly served to ripen its provisions 
and proceedings. Nevertheless the act of 1867 was subjected to 
repeated amendments, which were codified, with radical changes, 
in 1874. As thus re-enacted it will be found in the Revised Stat- 



Introbuctort. 13 

utes of 1878, though many of its sections are there dismembered, 
in the interest, supposably, of a more orderly arrangement of its pro- 
visions. 

A schedule of the titles of these acts and the dates of their ap- 
proval, is here given: 

" An act to establish a uniform system of bankruptcy through- 
out the United States." Approved March 2, 1867. 14 Stat. L. 
517. 

" An act in amendment of an act entitled ' An act to establish a 
uniform system of bankruptcy throughout the United States, ap- 
proved March 2, 1867.' " Approved July 27, 1868. 15 Stat. L. 
227. 

" An act to amend an act entitled ' An act to establish a uniform 
system of bankruptcy throughout the United States,' approved 
March 2, 1867." Approved June 30, 1870. 16 Stat. L. 173. 

" An act in amendnient of the act entitled ' An act to establish 
a uniform system of bankruptcy throughout the United States.' " 
Approved July 14, 1870. 16 Stat. L. 276. 

" An act to amend an act entitled ' An act to establish a uniform 
system of bankruptcy throughout the United States.' " Approved 
June 8, 1872. 17 Stat. L. 334. 

" An act to amend an act entitled ' An act to establish a uniform 
system of bankruptcy throughout the United States, approved 
March 2, 1887.' " Approved February 13, 1873. 17 Stat. L. 436. 

" An act to declare the true intent and meaning of the act ap- 
proved June 8, 1872, amendatory of the general bankrupt law." 
Approved March 3, 1873. 17 Stat. L. 577. 

" An act to amend and supplement an act entitled 'An act to 
establish a uniform system of bankruptcy throughout the United 
States,' approved March 2, 1867, and for other purposes." Ap- 
proved June 22, 1874. 18 Stat. L. 178. 

" An act to correct errors and supply omissions in the Revised 
Statutes of the United States." Approved February 18, 1875. 18i 
Stat. L. 320. 



14 Introductoky. 

" An act concerning cases in bankruptcy commenced in the Su- 
preme Courts of the several territories prior to the 22d day of 
June, 1874, and now undetermined therein." Approved April 14, 
1876. 19 Stat. L. 33. 

" An act to perfect the revision of the Statutes of the United 
States, and of the statutes relating to the District of Columbia." 
Approved February 27, 1877. 19 Stat. L. 252. 

" An act to repeal the bankrupt law." Approved June 7, 1878. 
20 Stat. L. 99. 

The law of 1867, as the several acts are called that were built 
up on the statute enacted in that year, was very voluminous and 
comprehensive. It defined at great length what should be 
deemed to constitute acts of bankruptcy, and included among them 
defaults in the payment of commercial paper for a certain period. 
The granting of discharges was guarded with severe conditions, and 
in operation many debtors, after surrendering their property for 
the benefit of their creditors, were denied a release from their ob- 
ligations. While this doubtless aided in the prevention of frauds, 
it can not have failed to work harshly in many instances. 

The main sources of complaint, however, were not addressed to 
the features just mentioned. The first was that the execution of 
the law was often attended with the most serious and disastrous 
delays. The administration of estates was, in some cases, protracted 
over a term of years, greatly to the disadvantage of creditors as a 
matter of course, and equally to the annoyance of the debtor when 
he was thereby prevented from securing his discharge. It is 
scarcely profitable to inquire at this time whether this was due to 
the law itself, or to the delinquencies of those to whom its admin- 
istration was intrusted. 

A.nother grievance was the excessive fees and expenses of admin- 
istration. An examination of the schedule of allowances to officers 
will scarcely convey the impression that they were disproportionate 
to the services; but it is quite conceivable that they were often mul- 



Introductory. 16 

tiplied to an outrageous extent. The payment of attorneys' fees 
from the fund to be distributed rested in the discretion of the court; 
and it is reasonable to believe that judges are not so far removed 
from the infirmities common to humanity but that there were 
numerous instances of favoritism to the serious prejudice of the 
rights of creditors. At the same time, there is presumably good 
reason for the remark of Judge Dillon, quoted elsewhere in this 
volume, that creditors were themselves often chiefly to blame, in 
their lack of vigilance and activity, for the extortionate expenses of 
administering estates. 

The law of 186Y was repealed by an act that took effect on the 
1st of September, 1878. It was not many years later before an 
agitation commenced for another bankruptcy act; but it made slow 
progress in exciting any popular sentiment in that behalf. Mr. 
Jay L. Torrey, of the St. Louis bar, was employed by certain com- 
mercial bodies to frame a law, and he bestowed very diligent and 
intelligent labors upon the performance of that duty. The bill 
which he drafted was introduced in several successive Congresses, 
but always to encounter opposition of the most formidable char- 
acter. 

While the bill was drawn with creditable precision, and may be 
justly called a scientifi.c system of bankruptcy, it was regarded by 
many as manifesting more consideration for creditors than debtors. 
This view operated effectively on the fears of many Congressmen, 
and there was little prospect that it could secure favorable action. 
At all events, while it elicited debate of considerable interest, it 
made slight progress toward a place upon the statute books. Again 
a panic interposed, and the. distresses that followed proved an in- 
fluence of great power in affecting public sentiment. 

At the extra session of the Fifty-fifth Congress, on- the 22d of 
March, 1897, Senator Lindsay, of Kentucky, introduced the 
Torrey bill, and it was referred to the committee on the judiciary. 
On the following day, the committee reported it back, to the Senate, 



16 iNTKODUCTOKY. 

and its consideration commenced. It was debated from time to 
time until the 22d of April. On that day, an amendment in the 
nature of a substitute was offered by Senator Nelson, of Minnesota, 
and was agreed to by a vote of 34 to 22. The bill as thus 
amended thereupon passed the Senate with only eight votes in the 
negative. 

The Nelson substitute provided for voluntary bankruptcy to all 
petitioning debtors, except corporations, owing debts to the amount 
of $200, and for involuntary bankruptcy in proceedings against 
bankers, brokers, merchants, traders and manufacturers owing debts 
to the amount of $500, corporations being here also expressly ex- 
cepted. It limited acts of bankruptcy to two, viz., fraudulent 
transfers and voluntary preferences while insolvent, whereas the 
Torrey bill enimierated no less than nine. All the provisions of the 
latter that had provoked criticism for their supposed severity to 
debtors were carefully eliminated. 

On April 23, 1897, the bill as passed by the Senate was sent to 
the House of Representatives and referred to the committee on the 
judiciary, where it remained without action until the second session 
of the Tifty-fifth Congress. On December 6, 1897, Hon. D. B. 
Henderson, of Iowa, chairman of the committee on the judiciary, 
introduced the Torrey bill in the House, and it was referred to the 
same committee. Ten days later a majority of the committee re- 
ported the Senate bill with a recommendation that all after the 
enacting clause be stricken out, and that the Torrey bill, with 
amendments, be substituted. Four members of the committee 
presented a minority report adverse to the substitution. 

The proposed amendments to the Torrey bill were eighty-three 
in number, and some of them of a very radical character. The 
suspension of the payment of conunercial paper for thirty days, as 
an act of bankruptcy, was stricken out. The provision was inserted 
requiring petitioning creditors in involuntary proceedings to give a 
bond for the protection of the alleged bankrupt as to costs and dam- 



Introduotobt. II? 

ages occasioned by tke wrongful institution of such, proceedings. 
More liberal provisions were inserted respecting arrests, discharges, 
offenses and liens, and some reduction of the fees of officers was also 
made. 

The debate proceeded until February 19, 1898. Then Mr. 
Underwood, of Alabama, moved to strike out the involuntary 
features of the bill, so as to confine its operation to the adjudication 
of debtors upon their own petitions. The amendment was defeated 
by a majority of 18, and the Henderson bill was thereupon agreed 
to, yeas 153, nays 114. Mr. Terry, of Arkansas, moved to rer 
commit, with instructions to the committee to report amendments 
striking out the involuntary provisions and limiting the operation 
of the act to a period of two years from its passage. The motion 
was lost, and the bill, as amended, passed the House by a vote of 
159 to 125. The record shows that the opposition came almost ex- 
clusively from the West and South. 

What may be called for convenience the Henderson bill was sent 
to the Senate, and on March 3, 1898, was disagreed to by that body 
and a conference requested. Senators Hoar, Nelson and Lindsay 
were appointed conferees on the part of the Senate, and Messrs. 
Henderson, E^y and Terry, on the part of the House. On June 
15, 1898, the conference committee, Mr. Terry dissenting, reported 
the bill with amendments of considerable importance. This report 
was agreed to on June 24th by the Senate by a vote of 43 yeas and, 
13 nays, and on June 28th by the House, yeas 134, nays 53. The 
bill was approved by the President on the 1st of July, 1898. 

It is not deemed desirable to enter upon an analysis of the act; 
but it may not be out of place to call attention to a few of its 
features. The basis of bankruptcy may be said to be insolvency. 
In the course of some hundreds of years the courts have settled 
the meaning of that word to be the condition of a debtor who is uii. •■ 
able to pay his debts as they mature. The new law sacrifices this 
definition and expressly enacts a new one, namely: "A person 



18 ISTTEODUCTOBT. 

shall be deemed insolvent within the provisions of this act when- 
ever the aggregate of his- property, exclusive of any property which 
he may have conveyed, transferred, converted, or removed, with 
intent to defraud, hinder, or delay his creditors, shall not, at a fair 
valuation, be suilicient in amount to pay his debts." It is to be 
feared that this definition may afEord further work for the courts. 

The acts of bankruptcy, as divided and numbered in the law 
itself, are five, but they are in fact reducible to three, viz. : fraudu- 
lent transfers, voluntary preferences (by the conveyance of prop- 
erty or suffering legal proceedings), and a general assignment for 
the benefit of creditors. It is also made an act of bankruptcy for 
a person to have " admitted in writing his inability to pay his debts 
and his willingness to be adjudged a bankrupt on that ground;" but 
that contemplates only the institution of voluntary proceedings by 
the debtor himself. The act of 1867 specified ten acts of bank- 
ruptcy, and the law of 1841, five. 

The provisions respecting voluntary bankruptcy are limited to 
natural persons, and corporations are expressly excluded from their 
benefit. Involuntary proceedings are confined to corporations " en- 
gaged principally in manufacturing, trading, printing, publishing, 
or mercantile pursuits." This may be supposed to have been in- 
tended to exclude railroad companies; but it may be questioned to 
which of these classes mining companies, for example, can be re- 
ferred. Farmers and wage-earners are expressly excepted from 
persons who are subject to adjudication as bankrupts on the petition 
of their creditors. 

A notable feature of the present law is the jealousy with which 
it guards the jurisdiction of state courts. Under the act of 1867 
it was finally determined that assignees in bankruptcy, by reason 
of their official or representative character, could maintain actions 
in courts of the United States to recover property belonging to the 
estate, though it should be added that this conclusion was not 
reached without some conflicts of opinion on the part of the federal 



Introductoey. '19 

judiciary. The second paragrapli of section 23 of the act of 1898 
provides that such suits can only be brought in the courts in which 
the bankrupt might have brought them. 

It follows that in the absence of the conditions upon which the 
jurisdiction of federal courts vests, such as diversity of residence, 
the trustee is relegated to the courts of the states. It will be of 
interest to observe whether any evils will result from this provision. 
It is clearly impossible for Congress to impose jurisdiction upon 
tribunals constituted by the authority of the states. If — though it 
is not to be presumed that the danger is considerable — a state 
com^ should refuse to entertain an action brought by a trustee in 
bankruptcy, he would be left without a forum and emasculated of 
means to collect the assets of his bankrupt. 

We disclaim any purpose in the above to criticise the law or to 

predict any failure to realize its useful and beneficent purposes. 

Our conclusions can be expressed in the language of Mr. Hotchkiss 

in the article previously mentioned: 

Such is the latest product of bankruptcy legislation, genealogically- 
examined. Starting with the Torrey bill, notable for its too harsh pro^ 
visions, proceeding through the Nelson bill, as inadequate in procedure 
as it was lacking in a broad grasp of the dangers to commercial morality, 
which had to be avoided, and finally developing Into a compromise be- 
tween the latter and the Henderson substitute, a measure which seemed 
to find the golden mean, it goes on the books as a law for temporary 
relief, not for permanent control. Many assert that this is as it should 
be. The crying need for its passage was that the unfortunates, who 
have been In bondage to debts and judgments born of the late period of 
depression might be free again; and the country will quickly feel the 
effects of the restored energy of the tens of thousands who have gone 
down in recent wrecks. So far the law is expressive not only of our, 
humanity, but of our commercial common sense. 



THE BANKRUPTCY LAW. 



OHAPTER I. 

Definitions. 

Section 1. Meaning of Words and Phrases. — (a.) The words and 
phrases used in this Act and in proceedings pursuant hereto shall, 
unless the same be inconsistent with the context, be construed as 
follows: 

(1.) "A person against whom a petition has been iiled " shall include 
a person who has filed a voluntary petition; 

(3.) "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 Territories, and the 
Supreme Court of the United States; 

(4.) " Bankrupt " shall include a person against whom an involun- 
tary 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.) " Corporations " shall mean all bodies having any of the powers 
and privileges of private corporations not possessed by individuals or 
partnerships, and shall include limited or other partnership associa- 
tions organized under laws making the capital subscribed alone respon- 
sible for the debts of the association; 

(7.) " Court " shall mean the court of bankruptcy in which the 
proceedings 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; 



22 The Bakkruptcy Law. 

(9.) " Creditor " shall include anyone 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 " com- 
mencement of proceedings," or " bankruptcy," with reference to time, 
shall mean the date when the petition was 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 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 Statics or the Congress of the United States as a hohday 
or as a day of public fasting or thanksgiving; 

(15.) A person shall be deemed insolvent within the provisions of 
this Act whenever the aggregate of his property, exclusive of any prop- 
erty which he may have conveyed, 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 lof directors or trustees, or 
other similar controlling bodies of corporations; 

(20.) " Petition " shall mean a paper filed in a court of bankruptcy 
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 bank- 
ruptcy by a debtor therein named; 



Definitions. 23 

(21.) " Eeferee " shall mean the referee who has jurisdiction of the 
case or to whom the case has been referred, or anyone acting in his 
stead; 

(33.) " Conceal " shall include secrete, falsify, and mutilate; 

(33.) " Secured creditor " shall include a creditor who has security 
for his debt upon the property of the bankrupt of a nature to be assign- 
able 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; 

(34.) " States " shall include the Territories, the Indian Territory, 
Alaska, and the District of Columbia; 

(25.) " Transfer " shall include the sale and every other and differ- 
ent mode of disposing of or parting with property, or the possession of 
property, absolutely or conditionally, as a payment, pledge, mortgage, 
gift, or security; 

(26.) " Trustee " shall include all of the trustees of an estate; 

(37.) " Wage-earner " shall mean an individual who works for wages, 
salary, or hire, at a rate of compensation not exceeding one thousand 
five hundred dollars per year; 

(38.) Words importing the masculine gender may be applied to and 
include corporations, partnerships, and women; 

(39.) Words importing the plural number 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 persons or things. 

(15) Judge Baldwin of the district court of Nevada charged a jury under 
the act of 18S7, as follows: " If you believe from the evidence that "W.'s 
property, if sold on that day " (the day when the alleged act of bank- 
ruptcy was committed), " would not have produced enough to pay his 
debts, then I charge you as a matter of law, that he was insolvent within 
the meaning of the Bankrupt Act." In re Wells, 3 N, B. R. 371; 29 Fe6. 
Cas. 637. 

Assets, in the meaning of the Bankrupt Act of 1867, are proceeds of the 
bankrupt's property which come into the hands of the assignee and are 
applicable to the payment of the bankrupt's debts. In re Wilson, 2 
Hughes, 228; 30 Fed. Cas. 97 (1875). 

The term " persons interested " in the Act of 1841 was held to mean 
those who have a direct interest in the matter Immediately in controversy, 
and not merely a remote and contingent interest. Dutton et al. v. Free- 
man, 5 Law Rep. 447; 8 Fed. Oas. 175 (1842). 



34 The Bankruptcy Law. 

CHAPTEE II. 

Ckeation of Couets of Banehuptcy and Theik Jukisdiction. 

§ 2. That the courts of bankruptcy as hereinbefore defined, viz., the 
district 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 respective territorial limits as now estab- 
lished, 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 had their principal place of 
business, resided, or had their domicile within their respective ter- 
ritorial 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 prop- 
erty within their jurisdictions, or who have been adjudged bankrupts 
by courts of competent jurisdiction without the United States and have 
property within their jurisdictions; 

(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 limited 
periods by receivers, the marshals, or trustees, if necessary in the best 
interests of the estates; 

(6.) Bring in and substitute additional persons or parties in pro- 
ceedings in bankruptcy when necessary for the complete determination 
of a matter in controversy; 



COUETS OF BaNKEUPTCY — JuEISDICTION. 25 

(7.) Cause the estates of bankrupts to be collected, reduced to money 
and distributed, and determine controversies in relation thereto, ex- 
cept 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 fully 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 in- 
structions 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 dis- 
charges 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 judg- 
ments in addition to those specifically provided for as may be necessary 
for the enforcement of the provisions of this Act; 

(16.) Punish persons for contempt committed before referees; 

(17.) Pursuant to the recommendation of creditors, or when they 
neglect to recommend the appointment of trustees, appoint trustees, 
and upon complaints of creditors, remove trustees for cause upon hear- 
ings and after notices to them; 

(18.) Tax costs, whenever they are allowed by law, and render judg- 
ments therefor 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; and 

(19.) Transfer cases to other courts of bankruptcy. 

Nothing 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. 

Residence and Place of Business. 

To justify a petitioner in commencing proceedings in a district otlier 
tlian ttiat in whicli he resided, under the Act of 1841, it was necessary 
that he should have a fixed and notorious employment in such district. 
In re Kinsman, 1 N. Y. Leg. Obs. 309; 14 Fed. Oas. 643 (1843). 



36 The Bankeuptcy Law. 

A debtor must reside within the United States to give tlie court juris- 
diction of voluntary or involuntary proceedings in banliruptcy. In re 
Burton et al., Ben. 324; 4 Fed. Oas. 863. 

The banlirupt had carried on business in New York for two months 
prior to the proceedings, and for the same two months in Massachusetts. 
It was held that the district court of New York had jurisdiction of his 
petition. In re Foster, 3 Ben. 386; 9 Fed. Cas. 521. 

Residence in different states is not necessary to give jurisdiction to a 
court of bankruptcy over a suit by the assignee, even though the defend- 
ant is not a party to the proceedings in bankruptcy. Atkinson v. Purdy, 
Crabbe, 551; 2 Fed. Cas. 112 (1844). 

A petition is properly filed in the district where the bankrupt had been 
carrying on business for six months previous, notwithstanding it was not 
his place of residence. In re Bailey, 2 Ben. 437; 2 Fed. Cas. 392. 

A petitioner in New York failed to allege residence in his petition, and 
it appeared on the examination that he lived with his father in New 
Jersey, and kept books for a firm in New York City. The register refused 
an adjudication for the want of jurisdiction, and his action was approved 
by the court. In re Magie, 2 Ben. 369; 16 Fed. Cas. 406. 

The petition showed on its face that the bankrupt resided out of the 
district. Nearly a year afterward, the ijetitioner sought to have the peti- 
tion amended so as to show that the alleged bankrupt in fact resided 
within the district. The application was denied. In re Freudenfels, 9 
Fed. Cas. 810. 

The bankrupts appeared in involuntary proceedings, and a decree of 
adjudication was entered with their consent. Subsequently, a creditor 
who had not joined in the petition moved to dismiss the proceedings, and 
in that behalf showed that the bankrupts had never resided or carried 
on business in the state where the proceedings were commenced. It was 
held that the court was without jurisdiction, and that the proceedings 
must be vacated. Fogarty v. Garrity, 1 Saw. 233; 9 Fed. Cas. 330. 

A debtor against whom involuntary proceedings were commenced on 
the 21st of January, 1868, had not carried on business anywhere during 
the six months previous. From May 1, 1867, to December 7 of the same 
year, he resided in Boston, and from that time until the commencement 
of proceedings, at New York. The proceedings were commenced in New 
York, and an adjudication had by default; but the question of residence 
having been raised upon the discharge, it was held tliat the court had 
no jurisdiction. In re Lelghton, 4 Ben. 457; 15 Fed. Cas. 265. 

The bankrupt had resided in New Jersey for more than six months 
before the filing of his petition, but had a desk in New York where he 
kept his books and papers, and was engaged in closing up the affairs of 
a former partnership of which he had been a member. He was not en- 
gaged in any other business. The district court for the southern district 
of New York held that it had no jurisdiction over his petition. In re 
Little, 3 Ben. 25; 15 Fed. Cas. 599. 

A railroad company was chartered both in Massachusetts and Connecti- 
cut. Proceedings in bankruptcy were commenced in the former state and 



CouKTS OF Bankruptcy — Jurisdiction. 27 

an adjudication entered. After the filing of tlie petition, but before the 
adjudication, another creditor commenced proceedings in Connecticut. 
The petitioner in the proceedings in Massachusetts made an application 
to the district court in Connecticut asking leave to appear and defend 
against the petition in that state. The district court denied the applica- 
tion, but the circuit court decided that it should have been entertained, 
and that whether the company was to be regarded as one corporation or 
two corporations, the court in Massachusetts should have been allowed 
to exercise the jurisdiction which it had acquired. In re Boston H. & B. 
K. Co., 9 Blatchf. 101, 409; 3 Fed. Cas. 951. 

A merchant, who had resided and done business In New York for twenty 
years, failed, and thereupon sold his residence in New York and removed 
with his family to New Jersey. Two years later, during which time he 
had been engaged as a clerk in New York, he filed his petition in bank- 
ruptcy in the southern district of New York. It was held under the Act 
of 1867 that the petition was properly filed in that district. In re Belcher, 
2 Ben. 468; 3 Fed. Cas. 79. 

A creditor residing in one state proved his debt in proceedings in bank- 
ruptcy in another state. Thereafter he was ordered to appear before the 
register to be examined respecting his claim, which he failed to do. Held, 
that he was subject to the jurisdiction of the court by reason of his hav- 
ing proved his claim without respect to his residence; but that if he could 
not attend personally without hardship, the court would order his ex- 
amination before a register at his place of residence. In re Kyler, 2 Ben. 
414; 14 Fed. Cas. 887. 

A debtor who was born in Boston, and had lived there the greater part 
of his life, was domiciled for some time in California; then went abroad 
for eleven months, and thereafter returned to Boston. Within two 
months after his return, he filed a petition in bankruptcy in the district 
of Massachusetts. The court held that his residence in that state was 
resumed in a legal sense when he left California without intending to 
return, and for the purpose of resuming his residence at Boston. In re 
Walker, 1 Low. 237; 29 Fed. Cas. 1. 

W. removed to Montana with a stock of goods, leaving his family at St. 
Louis. He remained in Montana for ten months with the exception of a 
business trip to his former home, and then returned to St. Louis. Two 
months later, a petition in bankruptcy was filed against him in the eastern 
district of Missouri. The court held that Montana was his place of resi- 
dence during the six months preceding the filing of the petition. In re 
Watson, 4 N. B. R. 613; 29 Fed. Cas. 422. 

An assignee In bankruptcy can only recover property by a proceeding 
in another district by a plenary suit, and the defendant must be an in- 
habitant of, or to be found in the latter district, at the time of serving 
the writ, to give the district court jurisdiction. Shainwald v. Lewis, 5 
Fed. Rep. 510. 

A debtor residing In Massachusetts was arrested for debt In New 
Brunswick. He gave bail, and later surrendered himself and was im- 



28 The Bankeuptcy Law. 

prisoned. Later, he filed his petition in banlcruptcy in Massachusetts, 
and thereafter was charged in execution under the proceedings in New- 
Brunswick. Judge Lowell held that this was not an arrest " during the 
pendency of the proceedings in bankruptcy " under the Act of 1867, as the 
charge in execution related back to the surrender; also that as both the 
debtor and the creditor were residents of Massachusetts, the court of 
bankruptcy might enjoin the creditor from proceeding in the arrest. 
Hazleton v. Valentine, 1 Low. 270; 11 Fed. Gas. 942. 

A conflict between rival claims to funds in the hands of the assignee 
in bankruptcy was held to be determinable in a suit in the district court, 
although both claimants were residents of the same state, the suit being 
considered as auxiliary to the original proceedings in bankruptcy, and, 
therefore, within the jurisdiction of the court. In re Sabin, 18 N. B. R. 
154; 21 Fed. Oas. 120 (1878). 

Residence, etc., of Partnerships. 

Under the Act of 1841 petitions could be filed in the district where the 
bankrupt resided, or in that in which he had his place of business. Any 
member of a firm could commence proceedings in the district of his resi- 
dence, or where the firm carried on its business; but the court that first 
acquired jurisdiction had exclusive jurisdiction over all the partners and 
their property, joint and separate. Ex parte Hall, 5 Law Rep. 269; 11 
Fed. Gas. 196 (1842). 

An adjudication in bankruptcy was entered against a firm on the peti- 
tion of one partner. The other partners resided outside of the district, 
and had no place of business within it. The court vacated the adjudica- 
tion for want of jurisdiction, except as to the petitioning partner. In re 
Martin, 6 Ben. 20; 16 Fed. Gas. 875. 

In proceedings of Involuntary bankruptcy against a firm, the petition 
set up that the three partners had resided in the district for the previous 
six months. On the application for a discharge, it was shown in oppo- 
sition that one of them had not resided in the district for that period. 
Held, that the court could not grant a discharge to any of them. In re 
Beal, 9 Ben. 223; 2 Fed. Gas. 1119. 

The petitioners were copartners, and at the time the debts were con- 
tracted were doing business in the state of New York, but one of them 
resided in the eastern district of New York, and was not engaged in busi- 
ness when the petition was filed. The petition was filed in the southern 
district of New York. Held, that the partner residing in the eastern 
district of New York must file his petition in that district. In re Pritchard 
et al., 1 N. B. R. 297; 19 Fed. Gas. 1242. 

A petition in involuntaiy bankruptcy against a firm was filed in the 
southern district of Ohio. It appeared that while one of the partners lived 
In that district, the only place of business of the firm was in Michigan. 
Held, that the petition could only be filed in the latter district. Cameron 
V. Oanieo, 9 N. B. R. 527; 4 Fed. Oas. 1128. 



Courts of Bankkuptcy — Jurisdiction. 29 

Where one of two partners resided iti the United States and the other 
In Canada, it was held that the court could adjudge the former a bank- 
rupt, but not the latter. In re Burton et al., 9 Ben. 324; 4 Fed. Gas. 863. 

The court entertained jurisdiction of a petition in bankruptcy by one 
member of the firm who resided in the district, when the other members, 
who resided in another district, refused to unite after being requested, 
and when it appeared that the copartnership assets had come into the 
hands of the assignee. In re Penn et al., 5 Ben. 89; 19 Fed. Gas. 151. 

Where two partners resided in different states, and each had filed a 
petition in bankruptcy In his own state. Judge Lowell ordered the pro- 
ceedings to be stayed in the case in which the second petition was filed. 
In re Smith, 1 N. B. R. 214; 22 Fed. Gas. 397. 

The court that first acquires jurisdiction of an estate in bankruptcy has 
exclusire jurisdiction, and other members of the same copartnership 
cannot institute proceedings in another court. In re Greenfield, 5 Ben. 
552; 10 Fed. Gas. 1162. 

Three partners resided In the southern district of New York and con- 
ducted business there. Two of them, as another firm, also carried on 
business In the northern district of New York. The former firm was 
adjudged bankrupts, and the assignee took possession of all their estate. 
Two weeks later a petition was filed against the other firm In the northern 
district. Held, that the latter firm was dissolved by the adjudication of 
the former; that its firm indebtedness would be discharged by the pro- 
ceedings In the first case; that its creditors would be entitled to a pref- 
erence over other creditors so far as the firm assets would pay the same, 
which would be recognized by the proceedings in the southern district; 
that creditors of the latter firm could not vote for assignee In the previous 
case, but might oppose the confirmation, or apply for his removal, and 
that the proceedings in the latter case should be stayed, while -the pro- 
ceedings in the southern district were pending. In re Leland et al., 5 
Ben. 168; 15 Fed. Gas. 2T5. 

[See notes to|5.] 

Jurisdiction, over Corporations. 

The court of bankruptcy may make an order upon subscribers to the 
stock of a bankrupt corporation without notice of the proceeding. Sanger 
V. Upton, 91 U. S. 56; TurnbuU v. Payson, 95 id. 418. 

The court of bankruptcy made an assessment upon the unpaid sub- 
scriptions to the stock of the bankrupt corporation. It was held that Its 
action was conclusive, and not subject to collateral attack. Michener v. 
Payson, 13 N. B. R. 49; 17 Fed. Gas. 250. 

The court of bankruptcy is vested with all the powers of the officers 
and stockholders of a bankrupt corporation in making assessments or 
calls for unpaid subscriptions to stock. Upton v. Hansbrough, 3 Blss. 
417; 28 Fed. Gas. 839. 

The court of bankruptcy can make an assessment upon the stockholders 
of a bankrupt corporation for unpaid stock, and such assessments should 
be enforced in actions by the assignee. The action of the court is not 



30 The Banketjptct Law. 

subject to collateral attack in the suits to enforce the collection of such 
assessments. Payson v. Stoever, 2 Dill. 427; 19 Fed. Gas. 27. 

The court of bankruptcy has the powers of a court of equity to make 
an assessment against the stockholders of an insolvent insurance com- 
pany, to return unearned premiums, and to equalize payments between 
stockholders where some have paid more than their just proportion; and 
may In proper cases allow interest on claims. In re Rep. Ins. Co., 3 Biss. 
452; 20 Fed. Cas. 544. 

A court of bankruptcy does not lose its jurisdiction over a corporation 
by reason of the fact that the state has an interest in its property as a 
guarantor of its bonds. In re Greenville & a R. Co., 5 Chi. Leg. News. 
124; 10 Fed. Cas. 1180. 

An action was brought by an assignee in bankruptcy to collect unpaid 
subscriptions from the stockholders of a bankrupt corporation. Held, 
that the question whether the call was for more than was necessary to 
pay the debts of the company could not be tried in such an action; neither 
was it competent to show that the agents and officers of the company 
had represented to their holders at the time of the purchase that the stock 
was nonassessable. Upton v. Hansbrough, 3 Biss. 417; 28 Fed. Cas. 839. 

The power of the United States district court in bankruptcy to vrind 
up insolvent corporations was held not to be exclusive under the Act of 
1867. Chandler v. Siddle, 3 Dill. 477; 5 Fed. Cas. 450. 

The adjudication of a corporation in bankruptcy terminates the juris- 
diction of state courts under laws authorizing them to wind up its affairs. 
The court further held that there is no question of comity In such case, 
but only one of jurisdiction. Watson v. Citizens' Savings Bank, 2 Hughes, 
200; 29 Fed. Cas. 427. 

Proceedings had been commenced under the laws of Louisiana to wind 
up the affairs of an insolvent bank. Later, creditors of the bank filed a 
petition in bankruptcy. It was held that the state law was superseded by 
the Bankrupt Act, and that the jurisdiction of the state court terminated 
with its decree declaring the forfeiture of its charter. Thornhill et al. v. 
Bank of Louisiana, 3 Ni B. R. 435; 23 Fed. Cas. 1135; s. c, 1 Wood, 1; 
23 Fed. Cas. 1139. 

A court of bankruptcy will not compel a receiver of a joint-stock bank, 
appointed by a state court under the laws of the state, to deliver the 
assets of the bank to an assignee in bankruptcy. Goodrich et al. v. 
Remington, 6 Blatchf. 515; 10 Fed. Cas. 611. 

Where parties were Induced to purchase the stock of a corporation 
through fraud and misrepresentation, they cannot repudiate the contract 
In defense of an action for unpaid subscriptions after paying assessments 
and participating in meetings of stockholders until the company became 
Insolvent. Upton v. Jackson, 1 Fllpp. 413; 28 Fed. Oas. 844. 

A state court issued an order dissolving a corporation, without juris- 
diction. Subsequently, the corporation filed a voluntary petition in bank- 
ruptcy, and an adjudication was had. It was held that this would not be 
set aside on the ground of a prior order of the state court; and It was 



CouETS OF Bankruptcy — Jueisdiction. 31 

further decided that there is no presumption of jurisdiction in a state 
court respecting proceedings for the voluntary dissolution of corporations 
under the laws of the state. In re Pensacola Lumber Oo., 8 Ben. 171; 19 
Fed. Cas. 197. 

When proceedings in banliruptcy against a railroad company were com- 
menced the railroad was in the hands of receivers appointed by state 
courts. The district court refused to interfere with their possession. 
Alden v. H. & E. R. Co., 5 N. B. R. 230; 1 Fed. Cas. 328. 

A court of banliruptcy has jurisdiction to enjoin proceedings to wind 
up a savings bank under the laws of the state, notwithstanding they were 
commenced prior to the filing of the petition. In re Citizens' S. Bank, 9 
N. B. R. 152; 5 Fed. Cas. 788. 

A receiver for an insolvent corporation had been appointed under the 
laws of the state. Subsequently, a petition in bankruptcy was filed, and 
an order to show cause was served on the managing officer of the cor- 
poration. On the following day, the state court entered a judgment dis- 
solving the coi-poration. About a week later an adjudication was had in 
the bankruptcy proceedings. It was held that the court had jurisdiction 
to make the adjudication. Piatt v. Archer, 9 Blatchf. 559; 19 Fed. Cas. 
822. 

[See notes to §§ 4 and 47.] 

Appointment of Receivers. 

A court will appoint a receiver of mortgaged premises of the bankrupt 
alleged to have been fraudulently conveyed, notwithstanding the banlt- 
rupt has relinquished possession. McLean v. LaFayette Bank et al., 3 
McLean, 508; 16 Fed. Gas. 262 (1845). 

Where attorneys for the opposite parties are present in court, a receiver 
may be appointed without notice. Id. 

An injunction may be granted forbidding parties to collect rents from 
real estate in which the bankrupts have a legal or equitable interest, and 
a receiver appointed to collect and account for such rents. Keenan v. 
Shannan et al., 9 N, B. R. 441; 14 Fed. Cas. 177. 

A court will not appoint a receiver of mortgaged property of the bank- 
rupt after the appointment of an assignee. In re Bennett, 2 Hughes, 156; 
3 Fed. Cas. 206. 

After adjudication, and before the election of an assignee, a receiver 
may be appointed for the temporary custody of the estate; but such a 
receiver cannot maintain an action to recover property transferred by the 
bankrupt in fraud of the law, nor can the assignee be substituted and 
permitted to prosecute a suit so begun. Lansing v. Manton, 14 N. B. R. 
127; 14 Fed. Cas. 1129. 

A receiver was appointed in bankruptcy proceedings to take possession 
of certain property. Instead, he took possession of other property which 
never belonged to the bankrupt. The owner brought a suit against the 
receiver for trespass, and another in replevin against his custodian. In 
the latter suit, the defendant appeared and judgment was rendered 
against him. In proceedings to punish the owner of the property for 
contempt, the court held that after the custodian had appeared in the 



33 The Bankeuptcy Law. 

state court It was too late to complain tliat the suit was in contempt of 
the authority of the court of bankruptcy; also, that the receiver was not 
sued in his official capacity, but as an individual, and that he was not 
entitled to the protection of the court of bankruptcy. In re Young, 7 
Fed. Rep. 855. 

On a bill to set aside a voluntary assignment made by the bankrupt, the 
assignee having been enjoined from interfering with the property in ques- 
tion, the appointment of a receiver by the bankruptcy court is not only 
proper, but necessary. Sedgwick v. Place, 3 Ben. 360; 3 N. B. K. 139; 21 
Fed. Gas. 986 (1869). 

Where a voluntary assignment had been made, and afterward the as- 
signors became bankrupts, a special receiver having been appointed, it 
was held that the assets collected should be distributed directly by the 
receiver, and not through the assignee in bankruptcy. Sedgwick v. Place, 
3 N. B. R. 302; 21 Fed. Gas. 999 (1869). 

Injunctions and Chancery Jurisdiction. 

The Act of 1841 gave the district court of the United States the juris- 
diction of courts of equity as to matters arising in bankruptcy. Ex parte 
Foster, 2 Story, 131; 9 Fed. Gas. 508 (1842). 

The bankrupt law clothes the district courts, sitting as courts of bank- 
ruptcy, with all the powers of courts of equity. ' Ex parte Norwood, 3 
Biss. 504; 18 Fed. Gas. 452 (1873). 

A court of bankruptcy can exercise the same power over judgment 
creditors that a state court of equity could exercise over such creditors if 
the debtor were not a bankrupt. Fowler v. Dillon et al., 1 Hughes, 232; 
9 Fed. Gas. 616. 

The provision of the Judiciary Act of 1793 which forbids federal courts 
to grant injunctions without notice to the adverse party was held not to 
apply to proceedings in the district court under the Bankrupt Act of 1867. 
Ex parte Donaldson, 1 N. B. R. 181; 7 Fed. Gas. 881. 

Under the Act of 1841, Judge Story held that in the exercise of its 
general chancery jurisdiction, the district court could grant an injunction 
without notice in bankruptcy proceedings. Ex parte Garlton, 5 Law Rep. 
120; 5 Fed. Gas. 86 (1842). 

An injunction restraining certain creditors from interfering with the 
property of the bankrupts was made on petition. On proceedings for 
contempt, the court held that it had jurisdiction to issue the injunction 
in the manner employed. In re Ulrich et al., 6 Ben. 483; 24 Fed. Oas. 511. 

A court of bankruptcy will not interfere by injunction to prevent parties 
from ascertaining claims to property of the bankrupt which has been 
sold in the course of proceedings. Adams v. Crittenden, 17 Fed. Rep. 42. 

The bankruptcy court on the application of the assignee will enjoin the 
prosecution of a suit against him commenced without leave of that court. 
Lloyd V. Ball, 77 Fed. Rep. 365 

A motion will not be entertained to punish a party for contempt in 
violating an injunction granted under section 40 of the Act of 1867, after 
adjudication. In re Moses, 6 N. B. R. 181; 17 Fed. Gas. 889. 



Courts of Bankruptcy — Jurisdiction. 33 

In granting an injunction against third parties on a petition in in- 
voluntary banlsruptcy, tlie court said that it could only remain in force 
until adjudication, and that a separate bill for an injunction must then be 
filed. In re Kintzing, 3 N. B. R. 217; 14 Fed. Oas. 644. 

Injunction will be granted to restrain the disposition of property by an 
individual assignee of a banlsrupt only in case of actual, imminent danger 
to banlirupt's property, and not as a mere preventive against possible 
waste or misappropriation. Ex parte Nightingale, 1 N. Y. Leg. Obs. 8; 
18 Fed. Cas. 238. 

The petitioning creditor set forth a conspiracy to embezzle the estate 
of the banlirupt. The court granted an injunction before adjudication, 
but required security to be given to cover all possible losses in case the 
creditor failed to establish good cause for the proceeding. In re Smith, 1 
N. Y. Leg. Obs. 249; 22 Fed. Cas. 411 (1843). 

Judge Deady decided that under section 1 of the Act of 1867 the district 
courts had equity jurisdiction over all things to be done by virtue of 
banliruptcy, and that it was not necessary to resort to plenary suits, as 
they might proceed on petition; further, that the Act of March 2, 1793, 
requiring notice, did not apply to applications for injunctions in banli- 
ruptcy proceedings. In re Wallace, Deady, 433; 29 Fed. Cas. 65. 

The banliruptcy court has jurisdiction of a suit in equity to establish 
a trust in funds of the bankrupt's estate fraudulently appropriated; and 
objections to the bill will not be sustained because the fraudulent assignee 
of the funds is not made a party. Shainwald v. Davids, 69 Fed. Rep. 687. 

The district court, as a court of banlcruptcy, is clothed with all the 
powers of a court of equity, and if, after adjudication, the banlirupt 
refuses to account for his assets or surrender his property when ordered 
so to do by the court, he may be committed for contempt. The power to 
punish for contempts, however, should be sparingly exercised, and only 
in cases where there can be no doubt of its propriety. In re Salliey, 11 
N. B. R. 423; 21 Fed. Cas. 235 (1875); 11 N. B. R. 516; 21 Fed. Cas. 239 
(1875). 

Upon a petition in involuntary banliruptcy an injunction was issued 
agaiust M., to whom it was claimed that property of the debtors had been 
fraudulently conveyed, restraining him from maliing any transfer or dis- 
position of the goods so conveyed. Subsequently he was charged with 
contempt in violating this order. The court refused to take any action 
upon the contempt proceedings until the proper issues were made up by a 
suit at law or bill in equity against M. Creditors v. Cozzens et al., 3 
N. B. R. 281; 6 Fed. Cas. 793. 

Until an assignee is appointed, a petition for an injunction against the 
sale of real estate can only be filed by the bankrupt. In re Bowie, 1 
N. B. R. 628; 3 Fed. Cas. 1067. 

Under section 4 of the Act of 1867, it was held that upon the filing of a 
petition in involuntary bankruptcy, the district court, upon the applica- 
tion of the petitioner, could enjoin the debtor and his grantee from con- 
veying or disposing of any property once owned by the debtor and claimed 
3 



34 The Bankeuptoy Law. 

to have been fraudulently transferred by him and concealed, and that 
such an injunction should not be dissolved except upon proof that such 
action was not in fraud of creditors. In re Abbott, 1 Hask, 250; 1 Fed. 
Cas. 15. 

Where creditors of the bankrupt, prior to proceedings In bankruptcy, 
'filed a bill In equity for an injunction forbidding him to dispose of certain 
goods, it was held that the bill was nothing more than a petition, applica- 
jtion, or other proceeding under the Act. In re Fendley, 10 N. B. R. 250; 
8 Fed. Cas. 1137. 

Under section 5063, R. S., it was held that the court of bankruptcy had 
power to determine the question of title to property claimed by him and 
others on a petition filed by him, where all the parties interested appeared 
and asked for a determination. Adams v. Collier, 122 V. S. 82. 

In Involuntary proceedings, the court granted an injunction forbidding 
:the debtor to collect accounts or dispose of their property, but refused 
to extend It to parties who had not been served with notice of the applica- 
tion. In re Calendar, 5 liaw Rep. 129; 4 Fed. Cas. 10i5. 

A petition in involuntary bankruptcy was filed February 5th, and on the 

same day, an Injunction was Issued forbidding the bankrupts and one D. 

from interfering with the property of the debtors, etc., " until the further 

order of the court." The injunction was served on D. February 14th. 

On the 19th, the debtors were adjudged bankrupts. D. had commenced 

a foreclosure suit against one of the bankrupts before the filing of the 

petition, and in that suit a decree was entered on the 12th of February, 

and on the 8th of March, he caused the property to be sold. The court 

decided that D. had not been guilty of contempt, and that the injunction 

having been issued under section 5024, R. S., did not operate after the 

adjudication, notwithstanding Its language. In re Irving et al., 8 Ben. 

463; 8 Fed. Cas. 108. 

[For an important opinion, afflrming the authority of the district court under the Act 
of 1898 to grant an injunction against the sale of property under process of a State court 
until a petition in banliruptoy can be filed against the debtor, see notes to section 71.] 

TtLrisdiction, Without the District. 

In the case cited. Judge Dillon considered, without deciding, the ques- 
tion whether process in bankruptcy can be served on parties interested 
outside of the district In which the proceedings are pending. Markson v. 
Heaney, 1 Dill. 497; 16 Fed. Cas. 769'. 

A subpoena in a suit in equity brought by an assignee is an original 
process within the eleventh section of the Judiciary Act, and there is no 
express authority In the Bankrupt Act of 1867, for the service of such a 
subpoena outside of the district where the suit is brought Jobbins v. 
Montague et al., 5 Ben. 422; 13 Fed. Cas. 644. 

A register in Vermont ordered a bankrupt to produce certain books and 
papers, which order was disobeyed, and the facts were certified to the 
district court where an order was made adjudging the bankrupt guilty 
of contempt and directing him to deliver the books and papers or be com- 
mitted to jail In default. The bankrupt was arrested in New Hampshire 
and committed to jail in Vermont. It was held that the order of the 
district court was proper and valid; but that the arrest in New Hamp- 



Courts of Bankruptcy — Jurisdiction. 35 

shire was illegal and the imprisonment in Vermont in pursuance of such 
arrest was also illegal. In re Allen, 13 BlatcUf. 271; 1 Fed. Cas. 436. 

In proceedings pending in New York an order was made upon a party to 
show cause why certain transfers should not be set aside. The order 
was served in Illinois. The party thus served appeared by attorney. 
Later, the attorney aslced that his appearance be withdrawn on the 
ground that it liad been made by mistalie. The court denied the applira- 
tion, and held that it had jurisdiction over the party in Illinois to malie 
the order prayed tor. In re Ulrich et al., 3 Ben. 355; 24 Fed. Cas. .^10. 

An order was made requiring the bankrupt to appear before the register 
at his office in St. Paul. The order was served on the bankrupt in 
Chicago. A motion was made for a warrant of arrest to bring him before 
the court and answer for a contempt in disobeying the order. The court 
'held that, except In case of personal service of the order within its juris- 
diction, it had no power to institute proceedings for contempt. The court 
intimated, however, that as it was a case of voluntary bankruptcy, lie 
would refuse to grant a discharge to the bankrupt; also that if it was de- 
sired he would designate a register in Chicago before whom the examina- 
tion could be had. In re Hodges, 11 N. B. R. 3C9; 12 Fed. Cas. 281. 

While pi'oceedings in bankruptcy were proceeding in Louisiana, a suit 
was commenced against the bankrupts in New Yorli, and the bankrupts 
applied in the district court of the latter state for an injunction staying 
proceedings in that state. It was held that no court of bankruptcy but 
that in which the proceedings were pending could grant such an order. 
In re Richardson et al., 2 Ben. 517; 20 Fed. Cas. 606. 

Where proceedings in bankruptcy were commenced in one state and 
subsequently in another, the court that first acquired jurisdiction by the 
filing of the petition was held to have the right to proceed to a final deter- 
mination. In re Brown, 19 N. B. R. 270; 4 Fed. Cas. 336. 

" Every district court of the United States has jurisdiction and au- 
thority to make all lawful orders and decrees in bankruptcy, although 
the original petition in bankruptcy was filed in another district, provided 
that the relief asked is such as cannot be given by the district court 
where the petition was originally filed, because the persons or property 
sought to be affected by the order or decree are beyond the reach of its 
process, and where they are within the reach of the process of the dis- 
trict court whose aid is thus invoked." McGehee et al. v. Hentz et al., 16 
Fed. Cas. 103. 

Judge Nelson, of the district court of Minnesota, decided that an as- 
signee in bankruptcy cannot commence an action for the recovery of 
assets in a United States district court other than that in which the bank- 
ruptcy proceedings are pending. Lamb v. Damron, 7 N. B. R. 509; 14 
Fed. Cas. 094. 

It is not contempt of the court of bankruptcy for adverse claimants 
of property situated in other districts to notify the custodians not to 
deliver the same to the assignee. In re Litchfield, 13 Fed. Rep. 863. 

" Where the necessary parties are before a court of equity, it is im- 
material that the res of the contrpversy, tvhether it be real or personal 



36 The Bankeuptoy Law. 

property, is beyond the territorial jurisdiction of tlie tribunal. It has 
the power to compel the defendant to do all things necessary according 
to the lex loci rei sitae which he could do voluntarily to give full effect 
to the decree against him." Phelps v. McDonald, 99 U. S. 298. 

Less than four months before the commencement of proceedings in 
bankruptcy In Louisiana, certain creditors in New York brought an action 
against the bankrupts, and securing service by publication, attached 
money due the bankrupts from parties in the latter state. In due course, 
judgment was entered in their favor. The proceedings in bankruptcy in 
Louisiana resulted in a composition by the terms of which the bank- 
rupts were restored to the possession of their property, and authorized to 
collect debts for the benefit of the creditors. Thereupon, they commenced 
a suit in the district court of New York to restrain the attaching cred- 
itors there from proceeding under their judgment. The court heldi that 
as no assignee had been appointed the suit could not be maintained, 
and that while the attaching creditors were bound by the composition 
as to claims against the bankrupts in personam, their rights in rem against 
the property attached were not impaired. McGehee et al. v. Hentz et al., 
16 Fed. Gas. 108. 

Courts of Bankruptcy and State Courts. 

A court of ban'ziruptcy will respect the construction of a state law 
placed upon it by the courts of that state, but decisions of the supreme 
court of the United States control as to questions of general juris- 
prudence. Crooks V. Stuart et al., 7 Fed. Rep. 800. 

The supreme court held that the jurisdiction conferred on federal 
courts in suits by the assignee under the Act of 1867 was concurrent with 
that of state courts in suits of which they had full cognizance. Eyster 
V. Gaff, 91 TJ. S. 521. 

A state court is not divested of its jurisdiction over an action to en- 
force a specific lien on property of the debtor by the subsequent com- 
mencement of proceedings in bankruptcy. Kimberling v. Hartly et al 
1 Fed. Kep. 571. 

The adjudication of a state court between rival claimants to a certain 
fund will be respected, notwithstanding it involves a decision affecting 
the legal rights of the parties under the Bankruptcy Act. Van Kleeck v. 
Miller et al., 19 N. B. R. 484; 28 Fed. Gas. 1025. 

The enforcement of a judgment in an action in a state court, com- 
menced after the commencement of proceedings, may be restrained by 
the district court of a district other than that in which the bankruptcy 
proceedings were pending. In re Tifft, 19 N. B. R. 201; 23 Fed. Gas. 1213. 

A decree by a United States court directed a voluntary assignee to 
turn over the property of the bankrupt, except certain moneys which 
he claimed to have disbursed. Held, that a state court could entertain 
jurisdiction of a suit to compel the assignee in bankruptcy to account 
for the excepted fund. Neill v. Jackson et al., 8 Fed. Rep. 144. 



COUKTS OF BaNKKUPTCY JURISDICTION. 37 

Referring to the Act of 1841, the supreme court said that its iiurpose 
was to seciue a prompt and effectual administration of tlie estate of the 
bankrupts by the courts of the United States without the assistance of 
the courts of the states. Ex parte Christy, 3 How. 282; Morton v. Boyd, 
Id. 426. 

A state court bad jurisdiction of an action by an assignee in bank- 
ruptcy to vacate conveyances made by the bankrupt before the com- 
mencement of the proceedings as fraudulent against creditors. McKeuna 
V. Simpson, 129 U. S. 506. 

A mortgage may be foreclosed in a state court notAvlthstandlng the 
equity of redemption has been conveyed- by the assignee in bankruptcy_ 
of the mortgagor, and the state court may also determine whether the 
mortgagee's claim was against the land or the fund in the assignee's 
hands. Adams v. Crittenden, 133* U. S. 296. 

The court of bankruptcy will stay an action in a state court to recover 
a provable debt until the question of discharge is determined, and that 
without respect to whether the debt would or would not be released by 
the discharge. In re Rosenberg, 3 Ben. 14; 20 Fed. Cas. 1194. 

Proceedings were commenced in a state court by one of two partners 
to terminate the partnership and for an account, and a receiver was ap- 
pointed. Subsequently, the other partner filed a petition in bankruptcy, 
claiming that the partnership was insolvent and" asking- that it be de- 
clared bankrupt. Held, that the bankrupt court had jurisdiction notwith- 
standing the proceedings in the state court. In re Noonan, 5 Chi. Leg. 
News, 557; 18 Fed. Cas. 298. 

Held, that the district court as a court of bankruptcy has jurisdiction 
over incumbrances on the property of the bankrupt, and authority to 
determine their validity, extent and priority. In the exercise of this 
jurisdiction, the district court will proceed by injunction upon the par- 
ties, and not against the state courts themselves. Ex parte Christy, 3 
How. 292. 

A state court which has obtained jurisdiction of property by execution 
will not be restrained by the United States court from selling the same, 
but this rule does not apply to proceedings against bankrupts. Buddells 
V. Simonton, 3 Biss. 322; 20 Fed. Cas. 1325. 

Where a sheriff seized property under an execution on a judgment ob- 
tained before the filing of the petition in bankruptcy, the district court 
will not order such property to be taken out of his hands until the writ 
is set aside for cause shown, and upon proper proceedings. In re Shuey, 
9 N. B. R. 526; 22 Fed. Gas. 45. 

Where a bankrupt Is arrested on a capias ad satisfaciendum from a 
state court, application for discharge from arrest should be made in the 
first Instance to the state court; tills to avoid possible conflict of juris- 
diction. In re O'Mara, 4 Biss. 506; 18 Fed. Cas. 690. 

In March, a debtor was lodged in jail on a judgment for a tort. In 
July, he filed his petition in bankruptcy, and on the January following, 



38 The Bankeuptcy Law. 

he received his discharge. Judge Drummond held that he must be re- 
leased from custody. In re Simpson, 2 N. B. E. 47; 22 Fed. Cas. 170. 

After proceedings In bankruptcy were commenced, a creditor's suit 
in the state court was brought, the bankrupt, his assignee, and his wife 
being made parties. The suit was settled by the wife signing, under 
moral duress, and pressure, an agreement to relinquish three-fourths 
of her interest In lands Inherited from her father; the agreement not 
being recorded as deeds were required to be, but being ratified by the 
state court. It was held that the proceeding In the state court -nas 
coram non judice, and that the bankruptcy court had exclusive juris- 
diction In the premises, and that the right of the wife who had a " speci- 
fic claim " was not affected by the state court proceeding. In re Ander- 
son, 23 Fed. Eep. 482. 

A. was sued in a state court and his account in a bank attached. He 
released the money by giving a bond, and then delivered the amount to 
a third person to secure his sureties. More than a year afterward, pro- 
ceedings in bankruptcy were commenced against him. It was held 
that the assignee could not have an injunction against further proceed- 
ings in the state court, and could not take possession of the money as 
assets of the estate. In re Aubrey, 17 N. B. R. 287; 1 Fed. Cas. 315. 

It was held under the Act of 1867 that only the circuit or district 
court of the district in which the bankruptcy proceedings were pending 
could enjoin the prosecution of a suit in a state court of another state to 
foreclose a mortgage on the bankrupt's property, commenced after the 
filing of the petition. Markson et al. v. Heaney, 1 Dill. 497; 16 Fed. 
Cas. 760. 

The bankrupt court has jurisdiction over the property of a bankrupt, 
although proceedings have been instituted in a state court for the ap- 
pointment of a receiver of the bankrupt's property. If the property has 
not been vested by law in such receiver. In re Nolan, 8 Ben. 550; 18 Fed. 
Cas. 296. 

Paramount power of congress to establish uniform laws on bank- 
ruptcy throughout the United States is expressly given by the Con- 
stitution, and when congress has exercised this power, state legislation 
and the jurisdiction and action of the state courts must yield to tlie 
paramount authority of the national government. It was held in this 
case that although proceedings under the state insolvent laws had been 
instituted, and receivers had taken charge of the property of the allesed 
bankrupt before bankruptcy proceedings were Instituted, superior juris- 
diction existed in the bankruptcy court to administer the estate. In re 
Safe Deposit Inst, 7 N. B. E. 392; 21 Fed. Cas. 139 (1872). 

The bankrupt had given an order to certain creditors qu a general 
fund In the hands of state officers. The latter had refused to accept it. 
The court of bankruptcy restrained the holders of the order from prose- 
cuting a bill in equity against the ofiicers in a state court, and further 
held that the bankrupt himself, before proceedings, and the assignee, 
after his appointment, is a necessary party to such a suit. Walker v. 
Seigel et al., 12 N. B. R. 394; 29 Fed. Cas. 49. 



Courts of Bankruptcy — Jurisdiction. 39 

The wife of the bankrupt brought suit in a state court against parties 
who were in possession of a sealed package which she claimed to own. 
The state court refused to substitute the trustees in bankruptcy for the 
defendants, and the trustees thereupon brought a suit in the court of 
bankruptcy to determine the ownership of the package and for an in- 
junction to restrain the wife from proceeding in the state court. The 
court granted the injunction. Wilkinson et al. v. Barnard et al., 9 Ben. 
249; 29 Fed. Cas. 1254. 

A creditor's bill had been filed against the bankrupt, and a receiver ap- 
pointed. The court held that the proceedings in bankruptcy supersede 
all proceedings for the administration of the assets of the debtor, sub- 
ject only to priorities which are obtained by any creditors by the use of 
diligence, which are to be respected, and which should be paid in the 
order of priority according to whatever rights have been obtained. In 
re Whipple, 6 Biss. 516; 29 Fed. Cas. 928. 

A creditor may prosecute an attachment suit in a state court to juag- 
ment and levy, in the absence of objection by the assignee in bankruptcy. 
Mattocks V. Ferrington, 2 Hask. 331; 16 Fed. Cas. 1147. 

One of three partners petitioned to have the copartnership adjudged 
bankrupt. The two other partners answered that before the filing of 
the petition a judgment was entered in a state court dissolving a partner- 
ship and appointing a receiver. It was held by Judge Blatchford th;it 
the state court had acquired jurisdiction of the three copartners and 
their copartnership property. The court, therefore, refused to adjudicate 
the two opposing partners as bankrupts. In re Oehninger, 8 Ben. 487; 18 
Fed. Cas. 594. 

If a bankrupt is restrained of his liberty under process of a state court 
in violation of the laws of the United States, the United States district 
court would, under the provisions of the Act February 5, 1867, have 
power to release him on haieas corpus. In re Seymour, 1 N. B. R. 29; 
1 Ben. 348 (1867). 

Judge Blodgett held under the Act of 1867 that a state court has juris- 
diction of an action by an assignee in bankruptcy to collect assets of the 
bankrupt. Clark v. Ewing, 3 Fed. Rep. 83. 

A court of bankruptcy is not bound by allegations in a complaint, made 
by a party to the proceedings, in a suit in a state court. In re Williams et 
al., 6 Biss. 233; 29 Fed. Cas. 1318. 

As a general rule, the coure of bankruptcy will not interfere where 
other courts have assumed full jurisdiction of property upon which liens 
are claimed to exist. In re Taliafero, 3 Hughes, 422; 23 Fed. Cas. 674. 

A general creditor's suit in chancery cannot be brought in another 
court than the court of bankruptcy against the bankrupt after his ad- 
judication. In re Anderson, 2 Hughes, 378; 1 Fed. Oias. 831. 

A judgment in a state court is conclusive upon an assignee in bank- 
ruptcy when he appears and defends in the action. Winchester v. Heis- 
kell, 199 U. S. 450; 120 Id. 278. 



40 The Bankruptcy Law. 

It was held that the assignee being made a party had no authority 
to consent to a decree in a state court in a suit prosecuted in conflict 
with the jurisdiction of the banla-uptcy court. In re Anderson, 23 Fed. 

Bep. 482. 

Under section 1 of the Act of 1867, one of the powers conferred upon 
the court in banliruptcy was the " ascertainment and liquidation of liens 
and other specific claims." This was held to refer only to cases where 
the claims had not been previously determined by other competent 
tribunals. The Ironsides, 4 Biss. 518; 13 Fed. Cas. 103. 

H. had failed to obey an order of the state court on proceedings supple- 
mentary to execution and an order had been issued for him to show 
cause why he should not be punished for contempt. Subsequently pro- 
ceedings in involuntary bankruptcy were commenced against him. The 
court held that it was not a proper case for an injunction against the 
proceedings for contempt. In re Hill, 2 N. B. R. 140; 12 Fed. Cas. 49. 

A court of bankruptcy has no jurisdiction to correct or annul a judg- 
ment rendered in a state court. In re Dunn, 2 Hughes, 160; 8 Fed. Cas. 
93. 

Justice Bradley decided that a receiver in possession of mortgaged 
property under an order of a state court, before the commencement of 
proceedings in bankruptcy, can only be dispossessed by the payment and 
redemption of the mortgage. The court in bankruptcy having ordered 
such property to be taken from the hands of the receiver and sold, the 
sale was set aside and the purchase money returned. Davis v. R. R. 
Co., 1 Woods, 661; 7 Fed. Cas. 164. 

A national bank held a second mortgage on certain property of the 
bankrupt, and the assignee desired to contest the right of the bank 
to take or hold such secui-ity. The court enjoined the mortgagee from 
foreclosing in a state court. In re Duryea, 17 N. B. R. 495; 8 Fed, Cas. 
131. 

After a composition had been confirmed, and the money was awaiting 
distribution, certain parties applied for a receiver of the amounts due 
three of the creditors, to ^vithhold them pending the result of proceed- 
ings in another court. The application was denied. In re Kolilsaat, 18 
N. B. R. 570; 14 Fed. Cas. 833. 

Upon the sale of certain premises by the assignee in bankruptcy, 
the bankrupt agreed with the purchaser to vacate them at a certain 
time, but failed to do so. An application by the purchaser to the court 
of bankruptcy for the delivery of possession to him was denied on the 
ground that the laws of the state afforded him an ample remedy as 
against a tenant holding over. In re Hale, 19 N. B. R. 330; 11 Fed. Cas. 
181. 

Under the Act of 1S41, the district court could issue an injunction 
against an attachment suit in a state court commenced before the pro- 
ceedings in bankruptcy. If the attaching creditor does not reside in 
the district, the injunction can be made against his agents and attorneys. 
In re Bellows, 3 Story, 428; 3 Fed. Cas. 138 (1844). 



CouETs OF Bankruptcy — Jurisdiction. 41 

Justice Miller expressed the opinion that the Act of 1867 did not give 
tlie federal courts exclusive jurisdiction of an action by an assignee in 
banlsruptcy, and added: " If the state courts failed to recognize his legal 
rights, a presumption not here to be indulged, he can, in the proper 
mode, bring the case from the highest court of the state to the highest 
court of the United States." Johnson v. Bishop, Woolw. 324; 13 Fed. Oas. 
732. 

B. and C. as copartners had been adjudged bankrupts and had ap- 
pealed to the circuit court. C. had brought suits against B., concerning 
the joint property and the proceedings in bankruptcy in a state court. 
The circuit court decided that it had no authority to issue a writ of 
prohibition to the state court forbidding further proceedings in such 
suits. In re Bininger et al., 7 Blatchf. 159; 3 Fed. Cas. 407. Later, the 
court refused to require C. to elect in which court he would proceed. 
7 Blatchf. 168; 8 Fed. Cas. 411. 

An assignee cannot maintain an action in the district court to recover 
possession of the property of a bankrupt from a sheriff whp holds it by 
an attachment issued out of a state court before the filing of the peti- 
tion. Johnson v. Bishop, Woolw. 324; 13 Fed. Cas. 732. 

A suit already pending in a state court in which the title to real 
estate surrendered by the bankrupt is in dispute will not be restrained 
by the district court; but the district court sitting- in bankruptcy m.ny 
restrain the parties from proceeding in the state court to take the prop- 
erty out of the possession of the assignee in bankruptcy. Hewitt v. 
Norton, 1 Wood. 68; 12 Fed. Gas. 71. 

A court of bankruptcy refused to grant an injunction against tlie 
foreclosure of a mortgage in a state court against a bankrupt where 
his assignee had repeatedly appeared, permitted the action to proceed, 
and did not object for more than two years, and where it was not cer- 
tain that the estate would be injured by the foreclosure. Augustine v. 
•McFarland, 13 N. B. R. 7; 2 Fed. Cas. 212. 

It was held by Justice Baldwin In an elaborate opinion that a dis- 
trict court of the United States has no power in any case to issue an 
injunction against the process of a state court. Dudley's Case, 1 Penn. 
L. J. 302; 7 Fed. Cas. 1150 (1842). 

When a mortgagee brings a suit in a state court to foreclose a mort- 
gage against the bankrupt, after adjudication, and the assignee in bank- 
ruptcy claims that it is void, the court of bankruptcy may restrain 
the foreclosure. In re Kerosene Oil Co., 3 Ben. 35; 14 Fed. Cas. 379. 
Upon appeal to the circuit court, Justice Nelson ordered that the petition 
of the assignee be amended and filed as a bill in equity, holding that 
the injunction could only be granted upon a plenary suit in chancej'y. 
Ibid., 6 Blatchf. 521; 14 Fed. Cas. 380. 

An action was brought in a state court to recover a debt alleged to 
have been contracted by fraud, and in that action the bankrupt was 
arrested and gave bail. He applied to the court of bankruptcy for an 
order discharging him from arrest and releasing his bail. The court 
affirmed its authority to grant the relief prayed for, provided his ar- 



4r3 The Bankhuptcy Law. 

rest was founded on a debt from which he would be released by a dis- 
charge in bankruptcy. In re Glaser, 8 Ben. 180; 10 Fed. Cas. 464. 

While proceedings in bankruptcy were pending, some of tne petition- 
ing creditors brought an action in a state court for the arrest of the 
bankrupts on the ground that they had fraudulently contracted their 
indebtedness, and had disposed of a large part of their property to de- 
fradd their creditors. The court of bankruptcy enjoined proceedings in 
this action pending the question of the discharge. In re Goldstein et 
al., 52 How. Pr. 420; 10 Fed. Cas. 569. 

A debtor arrested on process from a state court had applied for the 
benefit of the act for the relief of poor debtors. Before the hearing, 
he filed his petition in bankruptcy, and was adjudged a bankrupt. There- 
upon he filed a petition that he be released from arrest, and that being 
denied, subsequently filed a petition for an injunction against furtlier 
proceedings by the creditors in the state court. This petition was also 
dismissed. On appeal, the circuit court sustained the action of the lower 
court. Minon. v. Van Nostrand et al., Holmes, 251; 17 Fed. Cas. 454; 
s. c. 1 Low. 458; 17 Fed. Cas. 455. 

A court of bankruptcy will not stay proceedings in a state court to 
recover a debt incurred by fraud, which would not be affected by a dis- 
charge in bankruptcy. In re Leibenstein et al., 4 Chi. Leg. News, 309; 

15 Fed. Cas. 250. 

Parties may be enjoined by a court of bankruptcy from proceeding to 
judgment and execution in a state court during the pendency of pro- 
ceedings. Penny v. Taylor, 10 N. B. R. 200; 19 Fed. Cas. 194. 

Congress cannot impose duties on state courts, nor require them to 
entertain suits to carry out the objects of the Bankrupt Act. Mitchell 
V. Great Works M. & M. Co., 2 Story, 648; 17 Fed. Cas. 496 (1843). 

Under the Act of 1841 a state court had no jurisdiction of a suit by an 
assignae in bankruptcy to avoid a lien on the property of a bankrupt on 
the ground of fraud. McLean v. LaFayette Bank et al., 3 McLean, 185; 

16 Fed. Cas. 253 (1843). 

When a suit in a state court to enforce a lien will tend to draw to it 
the administration of the Bankrupt Act, a circuit court of the United 
States will restrain it by injunction. Ibid. 

An injunctional order was issued in bankruptcy proceedings restrain- 
ing a judgment creditor and all other persons from selling the property 
of the bankrupt on a judgment entered in a state court. Held, that the 
sheriff and judgment creditor were informed by the service of the order 
as to what they were forbidden to do, and the fact that they were not 
named would make no difference. In re Lady Bryan Min. Co., 6 N B. 
R. 252; 14 Fed. Cas. 928. 

Congress has no power to vest in state courts jurisdiction to carry into 
effect a bankrupt law. McLean v. LaFayette Bank et al., 3 McLean, 
185: 16 Fed. Cas. 253 (1843). 

A court of bankruptcy may enjoin the sale of property under an execu- 
tion issued from a state court before the filing of the petition in bank- 
ruptcy. In re Lady Bryan Min. Co., 6 N. B. R. 2.-i2; 14 Fed. Cas. 928. 



Courts of Bankruptcy — Jurisdiction. 43 

A decision by a court of banliruptcy that a transaction was a viola- 
tion of the banlirupt law is binding upon the state courts, and a party 
feeling himself aggrieved is bound to come into the court of bankruptcy 
for relief. In re Miller, 6 Biss. 30; 17 Fed. Cas. 293. 

The state court does not necessarily lose its jurisdiction of a common- 
law or equity suit simply because the plaintiff is an assignee in bank- 
ruptcy. Mitchell V. Great Works M. & M. Co., 2 Story, 648; 17 Fed. 
Cas. 496 (1843). 

Where a court of bankruptcy has ordered the sale of mortgaged prem- 
ises, a state court is ousted of jurisdiction of proceedings in foreclosure. 
In re Devore, 16 N. B. R. 56; 7 Fed. Cas. 570. 

One of three members of a dissolved firm commenced proceedings in 
a state court for a settlement of partnership affairs, and was himself 
appointed receiver of the partnership property in that action. Two 
months later, the other members of the firm filed a petition that the 
firm be adjudged bankrupt. It was held that the court of bankruptcy 
had jurisdiction over the partnership property, and that the third part- 
ner should be restrained from disposing of tlie assets pending adjudica- 
tion. In re Hathorn et al., 2 Woods, 73; 11 Fed. Cas. 822i 

A bankrupt in arrest under process from a state court in a civil action 
ex delicto cannot be released by the United States district court upon a 
petition for a writ of habeas corpus. In re Devoe, 1 Low, 251; 7 Fed. 
Cas. 565. 

When congress adopts substantially an insolvent law of one of the 
states as a Bankrupt Act, the federal courts are not bound by the de- 
cisions of the courts of that state in construing it. In re Knight, 2 Biss. 
518; 14 Fed. Cas. 752. 

The district court is bound to see that the assignee in bankruptcy 
is not forcibly dispossessed of the property belonging to the bankrupt 
that had come into his hands. So held in a case where property was 
taken from the possession of the assignee under a writ of replevin is- 
sued by a state court in a proceeding in which the assignee was not a 
party, and his title was not in controversy. In re Clark, 9 Blatchf. 379; 
5 Fed. Cas. 844. 

The rights of creditors will be determined by the Bankrupt Act, 
and not by a state law, when an adjudication has been had in bank- 
ruptcy, and the assignee under the state law has surrendered the prop- 
erty. In re Bonsfleld & Poole M. Co., 17 N. B. R. 153; 3 Fed. Cas. 1016. 

The circuit court, affirming the district court, decided that where one 
member of the firm had died, and his share in the partnership had 
gone into the hands of an administrator by virtue of proceedings in the 
probate court, and a petition had been filed against the firm, the court 
of bankruptcy would not take the estate out of the hands of tlie ad- 
ministrator. In re Daggett, 8 N. B. R. 287, 433;. 6 Fed. Cas. 1107, 1108. 

After adjudication, a bankrupt was taken into custody by the sheriff 
on a judgment against him for costs in an action in a state court. The 



44 The Bankkuptoy Law. 

court of bankruptcy orderud bis cliscbarge. In re Borst, 2 N. B. R. 
171; 3 Fed. Cas. 913. 

Section 1 of the Act of 1867 conferred on the district court power to 
enjoin proceedings in a state court by a creditor to enforce a lien 
on the property of the banlirupt When there is nothing to be done but 
to ascertain an alleged lien, this power can be exercised summarily. In 
re Clark, 9 Blatchf. 372; 5 Fed. Cas. 841. 

A decree of foreclosure was made after the filing of a petition in bank- 
ruptcy, but before the service of an injunction upon the mortgagee in 
the bankruptcy proceedings. After adjudication, the mortgaged prop- 
erty was sold, and thereupon the assignee sought to have the sale and 
the mortgage itself set aside on the ground of usury. The court decided 
that the decree of the state court barred the right of the assignee to raise 
the question of usury, and denied the application. Cutter v. Dingee, 8 
Ben. 469; 6 Fed. Cas. 1078. 

AVhere mortgaged property is in the possession of receivers appointed 
by a state court, the district court has no jurisdiction over a petition 
by the mortgagee for a sale of the property by the assignee in bank- 
ruptcy. Bradley et al. v. Healey, Holmes, 451; 3 Fed. Cas. 11.53. 

A court of bankruptcy is not authorized to vindicate the title of the 
purchaser to lands sold by the assignee. That is left to the state courts. 
Briggs V. Stephens, 7 Law Rep. 281; 4 Fed. Cas. 124 (1844). 

The bankrupt was sued for a debt in a state court after the commence- 
ment of the proceedings. Thereafter a composition, including the debt 
upon which he was sued, was confirmed. He applied to the state court 
for leave to plead the composition as a defense, which application was 
refused. Subsequently he applied to the court of bankruptcy to enjoin the 
creditor from intei'fering with his property for the Indebtedness on the 
judgment, which in the meantime had been entered in the state court. 
The court of bankruptcy decided that it had no power to issue such an 
injunction. In re Nebenzahl et al., 9 Ben. 243; 17 Fed. Cas. 1269. 

Upon the filing of a petition in bankruptcy, an injunction was Issued to 
restrain the sale of the debtor's property on execution. The bankrupts 
had joined issue on the allegations in the petition, and demanded a jury. 
Thereupon they made a motion to dissolve the injunction on the merits. 
The court refused to dispose of the issues on a motion, notwithstanding 
the property was perishable, and further held that it had no power to sell 
the property until it came into the possession of the court. In re Metzler, 
1 Ben. 356; 17 Fed. Cas. 240. 

The holder of a chattel mortgage was enjoined from taking possession 
of the mortgaged goods. He had knowledge of the injunction, but it 
had not been served upon him. He was held guilty of contempt in bring- 
ing an action of replevin and recovering possession of the property. In 
re Feeny, 1 Hask. 304; 8 I'ed. Cas. 1124. 

Judge Hughes, of the district court of Virginia, used this language: 
" It would be too great stretch of the jurisdiction of this court to take 
a, fund from the estate of a decedent, not in bankruptcy, to pay the debt 



CouETS OF Bankruptcy — Juhisdiction. 45 

of a partnership, not in banljruptcy, on the single ground that the banls- 
rupt himself was one of that firm." The decision was affirmed by tlie 
circuit court on appeal. In re Frazier, 2 Hughes, 293; 9 Fed. Cas. 735. 

Funds in the hands of the assignee awaiting distribution cannot be 
garnished by process from a state court. In re Bridgman, 2 N. B. R. 
252; 4 Fed. Cas. 112. 

In the exercise of its power to ascertain and liquidate liens upon a 
bankrupt's property, the court of banliruptcy may enjoin a creditor from 
enforcing a judgment in a state court; but it will not interfere after the 
sale of the property under execution on such a judgment; In re Fuller, 
1 Saw. 243; 9 Fed. Cas. 978. 

" No doubt can be entertained of the power of a bankruptcy court to 
control the estire estate of the bankrupt, both contingent and actual, 
whether it be not or be the subject of litigation in other courts, and 
in whatever stage of litigation. Whether, therefore, a bankruptcy court 
can exercise its jurisdiction over such part of the bankrupt's estate as 
may be the subject of litigation In other courts, or be covered by liens 
equal to or exceeding its value is not a question of power and right, but 
only of discretion." In re Addison, 8 Hughes, 430; 1 Fed. Cas. 167. 

M. was adjudged a bankrupt on the ground that he had transferred some 
of his goods to B. with intent to give him a preference. Immediately 
upon adjudication, the marshal seized the property transferred to B., 
and turned it over to the assignee, who sold it. B. brought an action 
against the marshal and the assignee to recover damages for taking the 
property. The district court enjoined B. from proceeding in this action, 
and on appeal to the circuit court. Judge Drummond sustained its ac- 
tion, and used this language: "Although it might be unpleasant to 
interfere with the state court, still when the law could not be properly 
administered by the bankrupt court, owing to the interference of the 
state court, and its determination to adjudicate on the rights of parties 
and property, as in this case, then the bankrupt court ought not to 
hesitate to assert Its authority." In re Miller, 6 Biss. 30; 17 Fed. Cas. 
293. 

After proceedings in bankruptcy had been commenced, the mortgagees 
of certain real estate belonging to a bankrupt took possession of it with 
a view to foreclosure under the statute. The court decided that he 
must apply to the court in which the proceedings in bankruptcy were 
pending, which, under the Act of 1867, has exclusive jurisdiction over the 
property. Hutchins v. Muzzy Iron Works, 8 N. B. K. 458; 12 Fed. Cas. 
1076. 

In a suit by an assignee in bankruptcy, the district cDurt refused to 
examine into the validity of a judgment confessed by the bankrupt in 
a state court, the jurisdiction of which was not denied. Atkinson v. 
Purdy, Crabbe, 551; 2 Fed. Uas. IIZ (1844). 

It was held that the Act of 1867 did not impair the provision of the Act 
of March 3, 1703, forbidding injunctions to restrain proceedings in state 
courts. Campbell's Case, 1 N. B. R. 165; 4 Fed. Cas. 1153. 



46 The Bankeuptcy Law. 

The Law of 1841 was held not to authorize the court to release a bank- 
rupt from artc^ before discharge. In re Comstocli, 5 Law Rep. 163; 6 
Fed. Cas. 231 (1842). 

An action of replevin for the alternative remedy of securing the value 
of the goods vrlll be stayed pending the question of the bankrupt de- 
fendant's discharge. In re Cohen, 19 N. B. R. 133; 6 Fed. Cas. 14. 

It vs^as held to be a contempt of court for a sheriff: and mortgagee to 
levy on mortgaged property in the possession of the bankrupt under a 
decree of foreclosure, after an assignee had been appointed. Byrd v. 
Harrold et al., 18 N. B. R. 433; 4 Fed. Cas. 949. 

The court of bankruptcy loses jurisdiction after the discharge, and par- 
ties may then seek relief in state courts. Penny v. Taylor, 10 N. B. R. 
200; 19 Fed. Cas. 164. 

The respondents disobeyed an injunction forbidding them to proceed 
with an execution under a judgment from a state court. It was held that 
they were punishable for contempt. In re Atkinson, 7 N. B. R. 143; 2 
Fed. Cas. 96. 

State courts are not bound to take judicial notice of adjudications In 
bankruptcy by tne district court. Johnson v. Bishop, Woolw. £iz4; 13 
Fed. Cas. 732. 

While proceedings were pending, the bankrupt was arrested on pro- 
cess of a state court on a debt for which he was not entitled to a dis- 
charge because it was contracted in fraud. It was held that he was not 
entitled to release on habeas corpus. In re Alsberg, 16 N. B. R. 116; 1 Fed. 
Cas. 557. 

" The commencement of proceedings in bankruptcy transferred to this 
court the jurisdiction over the bankrupt, his estate, and all parties and 
questions connected therewith, and operated as a supersedeas of the pro- 
cess in the hands of the sheriff, and an injunction against all other pro- 
ceedings than such as might thereupon be had under the authority of 
this court until the question of bankruptcy shall nave been disposed 
of." Jones V. Leach et al., 1 N. B. R. 595; 13 Fed. Cas. 987. 

Under a provisional warrant, the marshal seized certain property 
claimed by a third person. The latter sued the marshal in a state court 
for trespass. The assignee appeared and asked for an injunction against 
the prosecution of the suit in a state court. The petition was denied, and 
it was held that the petitioning creditors were bound to defend the mar- 
shal in such action. In re Marks, 2 N. B. E. 575; 16 Fed. Cas. 764. 

An adjudication relates back and dissolves an attachment by a state 
court from the date of the filing of the petition. In re Preston, 6 N. B. 
R. 545; 19 Fed. Cas. 1291. 

The district court, as a court of bankruptcy, ordered a stay of pro- 
ceedings in a state court against a bankrupt, until the question of dis- 
charge could be determined. In re Reed, 1 N. B. R. 1; 20 Fed. Cas. 416. 

A court of bankruptcy cannot increase or decrease alimony decreed by 
a state court, notwithstanding it is a lien upon the bankrupt's estate. 
In re Garrett, 2 Hughes, 235; 10 Fed. Cas. 47. 



COUETS OF BaNKEUPTCY JuEISDICTION. 47 

Proceedings in bankruptcy will not oust a state court from its jurisdic- 
tion of a foreclosure case when the issues have been joined and the 
cause is ready for trial. The state court may then proceed to enter 
judgment and decree, and order the sale of the property. Getz et al. v. 
First Nat. Bank, 10 Fed. Cas. 273. 

It seems that a court of bankruptcy will allow a creditor to sue the 
bankrupt in a state court where his rights might be lost if a suit were 
not commenced forthwith. On such an application, the court of bank- 
ruptcy will not inquire whether the debt is one from which the bank- 
rupt would be relieved by his discharge. In re Ghirardelli et al., 1 Saw. 
343; 10 Fed. Cas. 275. 

Upon the filing of a petition in bankruptcy all the property of the bank- 
rupt is in the custody of the court. A mortgagee who proceeds there- 
after to foreclose in a state court is in contempt, and all proceedings 
thereunder are null and void. Phelps v. Sellick, 8 N. B. K. 390; 19 Fed. 
Cas. 463. 

A law to establish a uniform system of bankruptcies should not be 
construed to give exclusive jurisdiction to state courts of proceedings 
necessary to affect the purposes of the act, inasmuch as it is not within 
the power of congress to compel such tribunals to entertain suits brought 
by an assignee for the collection of the assets of the bankrupt. Goodall 
V. Tuttle, 3 Biss. 219; 10 Fed. Cas. 579. 

Proceedings had been commenced in a state court for the purpose of 
distributing the estate of an insolvent corporation, and a receiver had 
been appointed therein. This was held not to be a ground for dismissing 
a petition in involuntary bankruptcy. In re Green Pond B. Co., 13 N. 
B. R. 118; 10 Fed. Cas. 1178. 

A debtor who liad been arrested on process from a state court, and 
had been released on a bond to apply for the benefit of the insolvent 
laws of the state, subsequently filed a petition in bankruptcy. The 
court of bankruptcy refused to stay the proceedings in the state court 
before a discharge. In re Rank, Crabbe, 493; 20 Fed. Cas. 273 (1842). 

A court of bankruptcy having secured jurisdiction of an insolvent 
corporation, the assignee may maintain a suit in equity to set aside 
the transfer of the property to a receiver appointed by a state court. 
Piatt V. Archer, 9 Blatchf. 559; 19 Fed. Cas. 822. 

The district court will maintain its jurisdiction as against that of 
state courts, in matters arising under the Bankrupt Act, when it is 
necessary to protect its officers. _ Main et al. v. Glen, 7 Biss. 86; 16 Fed. 
Cas. 503. 

Justice Field affirmed a decision of the district court for Nevada to 
the effect that a court of bankruptcy can enjoin the sale of property by a 
sheriff under a judgment obtained in a state court before the commence- 
ment of proceedings in bankruptcy, and can also declare the judgment 
of a state court void if it was an unlawful preference under the Bank- 
rupt Act In re Malory, 1 Saw. 88; 16 Fed. Cas. 549. 

A landlord who evicted the bankrupt by summary proceedings in the 
State courts after the commencement of proceedings in bankruptcy was 



48 The Bankeuptcy Law. 

held to be in contempt of the court of bankruptcy, as the possession of 
the bankrupt after the commencement of proceedings was the posses- 
sion of the court. In re Steadmau, 8 F. B. K. SW; ?2 Fed. Cas. 1155. 

A bank which had been enjoined from foreclosing a mortgage agamst 
the bankrupt in a state court, asked that the injunction be modified so 
that it might proceed to the entry of judgment. The motion was denied 
by the court of bankruptcy for the reason that the rights of the raort- 
gagee would be fully protected when the property was sold under the 
direction of the court. In re_ Duryea, 7 N. B. R. 495; 8 Fed. Cas. 131. 

When an executor recovers money in bankruptcy proceedings for the 
estate of his decedent, the probate court, and not the court of bank- 
ruptcy, is the proper tribunal to control its distribution. In re Major, 2 
Hughes, 215; 16 Fed. Cas. 526. 

' JuTisdiction Generaliy. 

"The bankruptcy court is the special creature of statutory law, and 
all of its jurisdiction is derived from the act which creates it." Jobbins 
V. Montague et al., 6 N. B. R. 509; 13 Fed. Cas. 648. 

Article I, section 8 of the Constitution gives congress plenaiy power 
over the subject of bankruptcy, without respect to the laws in force in 
England when the Constitution was adopted. Silverman's Case, 1 Saw. 
410; 22 Fed. Cas. 135. 

Held, that congress under the power conferred by the Constitution 
over bankruptcy has authority to destroy existing contracts and release 
liens. In re Smith, 8 N. B. R. 401; 22 Fed. Cas. 399. 

The jurisdiction of the United States district court to sell real estate in 
satisfaction of liens is concurrent and not exclusive. In re Bowie, 1 N. 
B. R. 628; 3 Fed. Cas. 1067. 

The court obtains full and complete jurisdiction for all purposes what- 
soever by the petition, whether voluntary or involuntary, adjudication, 
and warrant. In re Archenbrown, 11 N. B. R. 149; 1 Fed. Cas. 1084. 

Judge Deady of the district court of Oregon said of the Act of 1867: 
" Such a statute is not to be construed strictly, as if it were an obscure 
and special penal enactment, and this was the sixtecith and not the 
nineteenth century. The act estu.blishes a system, and regulates in all" 
their details the relative rights and duties of debtor and creditor. Such 
an act must be construed — as indeed should all acts — according to the 
fair import of its terms with a view to effect its objects, and to promote 
justicfe.' " In re Muller et al., Deady, 513; 17 Fed. Cas. 971. 

A voluntary bankrupt under the Act of 1841 applied to the district 
court of Missouri, after an adjudication in due form, for a full discharge 
from all his debts under the provisions of said act. In denying the 
petition, .Judge Wells said: "The court regrets tliat an imperious sense 
of duty compels it to declare that the act of congress, so far as it under- 
takes to discharge a debtor from debts contracted before the passage 
of the act, without payment, nnd to discharge his future acquisitions 
of property from liabilities for those debts, without the consent of a 



CouKTS OF Bankruptcy — Jubisdiction. 49 

given majority of his creditors, is unconstitutional." In re Klein, 2 N. Y. 
Leg. Obs. 185; 14 Fed. Cas. 719. On appeal to tlie circuit court, Justice 
Catron, reversing the district court, pointed out the difference between 
the English and the American systems of bankruptcy; showed that 
voluntary banliruptcy was recognized by the laws of the states before 
the adoption of the Constitution; that this practice was meant to be 
recognized by the constitutional provision on the subject, and thereupon 
decided that the voluntary features of the Act of 1841 were not uncon- 
stitutional. Ibid, 1 How. 277, n.; 14 Fed. Cas. 716. 

The question of jurisdiction can be raised at any stage of an action, 
and the defendant is not barred by appearing and answering. Jobbins 
V. Montague et al., 6 N. B. E. 509; 13 Fed. Cas. 648. 

When a petition discloses a want of jurisdiction, the consent of the 
parties cannot cure the defect, and the court should talie notice of the 
point of its own motion. Hopliins v. Carpenter, 18 N. B. E. 339; 12 Fed. 
Cas. 492. 

A person not interested in the bankruptcy proceedings may by petition 
have his rights in property in custody of the bankrupt court determined 
by that court. The proper parties being made, such proceeding is plenary, 
and binds all parties. In re Anderson, 23 Fed. Eep. 482. 

In the case cited the supreme court considered without deciding whether 
the jurisdiction of the district court as a court of bankruptcy over all 
the property of the bankrupt is exclusive. Norton v. Boyd, 3 How. 426. 

When all parties appear and seek the determination, the court of bank- 
ruptcy has power to determine the title of property in dispute between 
the assignee and others. So held under section 5063, E. S. Adams v. 
Collier, 122 U. S. 382. 

Held, under the Act of 1867 (§ 4970, E. S.), that the district court 
has jurisdiction of a suit by creditors against the assignee of a bank- 
rupt member of a partnership to procure an adjudication of their debts 
and their right of priority as against individual creditors. 

" The moment U. filed his voluntary petition to be declared a bank- 
rupt, all the property, in possession or in action, which he included on 
his inventory and schedules came, by the effect of the bankruptcy law, 
into the prehensory power of the court as fully as if it was in the actual 
and visible presence of the court; consequently it is under its pro- 
tection and within its exclusive control." Byrd v. Harrold et al., 18 N. 
B. E. 433; 4 Fed. Cas. 949. 

The district court, sitting as a court of bankruptcy, is always open, and 
may vacate orders and decrees at any time upon a proper showing. 
Boutwell V. Allerdice, 2 Hughes, 121; 3 Fed. Cas. 1020. 

It was held that section 1 of the Act of 1867 did not authorize the fore- 
closure of a mortgage on the bankrupt's estate by the summary juris- 
diction of the district court. In re Casey, 10 Blatchf. 376; 5 Fed. Cas. 
279. 

Under the Act of 1841 the court of bankruptcy had jurisdiction of an 
action by an assigree to recover a balance due from a consignor to the 



50 The Bankeuptot Law. 

bankrupt as broker at the time of the flUng of the petition in bankruptcy. 
Kelly V. Smith et al., 1 Blatchf. 290; 14 Fed. Cas. 271 (1848). 

The trustees named in a deed of trust given to secure the payment of 
promissory notes cannot sell the property after an adjudication in bank- 
ruptcy against the mortgagor, except by leave of the court of bank- 
ruptcy. Dooley v. Virginia M. & F. I. Co., 2 Hughes, 847; 7 Fed. Cas. 
912. 

A court of bankruptcy may proceed summarily against the sureties on 
a forthcoming bond, notwithstanding the assignee had previously brought 
an action on the bond resulting in a verdict for the defendant, which 
was set aside and a new trial granted. In re Mayo, 4 Hughes, 384; 16 
Fed. Cas. 1262. 

A decedent, by a codicil to his will, named two persons as executors 
for the purpose only of carrying on his business as a banker. They 
qualified as executors and conducted the business until they were obliged 
to suspend. A petition in bankruptcy was filed against them. It was 
held that this was not a trust that could be administered under the 
Bankrupt Act of 1867. Graves et al. v. Winter et al., 9 N. B. E. 357; 10 
Fed. Cas. 999. 

The United States district court for the southern district of New York 
decided that an assignee in bankruptcy under the laws of Great Britain 
could maintain an action in that court to collect assets of the bankrupt 
to the same extent that the bankrupt himself could have sued if no 
bankruptcy had taken place. Hunt et al. v. Jackson, 5 Blatchf. 349; 12 
Fed. Cas. 924. 

Justice Story held that where a petition had been filed on the day 
that the Act of 1841 was repealed the court could take jurisdiction, and 
maintain it to the close of the proceedings. In re Richardson et al., 2 
StoiT, 571; 20 Fed. Cas. 699. 

A court of bankruptcy cannot compel a bankrupt after discharge to 
execute papers necessary to the conveyance of his property. In re Nich- 
ols, 1 Fed. Rep. 842. 

In deciding a case that arose in 1837, under the Bankrupt Act of 
1800, the United States district court for Pennsylvania held that the 
district judge had power to supersede a commission of bankruptcy under 
the act mentioned without the express grant of such power; that the 
effect of such a supersedeas was to place the bankrupt and his estate 
in the same position they would have been in if no proceeding had been 
commenced, and that a supersedeas will not be revoked to allow a peti- 
tioner to prove debts many years after it was granted, except on a strong 
showing to rebut the presumption that the debts had been paid. In re 
Morris, Crabbe, 70; 17 Fed. Rep. 785 (1837). 

By stipulation, certain mortgaged property of the bankrupt was sold 
by the marshal, and the proceeds paid into court The court held that 
by this agreement, the assignee on one hand, and the mortgagee on the 
other, submitted their matters in dispute to the district court upon a 
petition to be filed and waived their respective rights to institute pro- 



CouETS OF Bankruptcy — Jurisdiction. 51 

ceedings In equity or at law, either in the district or circuit court. In re 
Masterson, 4 N. B. K. 553; 16 Fed. Gas. 1084. 

Where a forthcoming bond was given In bankruptcy proceedings, It 
was held that the district court might order the goods or the value thereof 
to be delivered to the court by the obligors. Kosebaum v. Garnett, 3 
Hughes, 662; 20 Fed. Cas. 1193. 

An adjudication of bankruptcy under the Act of 1867 is conclusive 
as to the insolvency of the petitioner and that he owed more than $300, 
but not that he is within the jurisdiction of the court othervrise. In re 
Goodfellow, 1 Low. 510; 11 Fed. Cas. 594. 

It is competent for a court of bankruptcy to order the seizure of tlie 
bankrupt's property while In the possession of another claiming to own 
the same. Felbelman v. Packard, 109 U. S. 421. 

Held, under the Act of 1841, that there Is no distinction in a court of 
bankruptcy between an order of the judge and an order of the court, 
the act of the judge being the act of the court. In re Mott, 6 Fed. Rep. 
685. 

In composition proceedings, before adjudication, a court of bankruptcy 
has no jurisdiction to determine questions of title between the alleged 
bankrupt and persons who were not parties to the proceedings. In re 
Waitzf elder et al., 18 N. B. R. 260; 28 Fed. Oas. 1343. 

It appeared from the books of the bankrupts that they ought to have 
turned over $50,000 worth of property, and they did in fact turn over 
$18,000 worth. Upon an examination, the district court found that they 
had concealed $7,700, and ordered them to pay that sum to the assignee. 
On review, the circuit court affirmed the order. In re Peltasohn, 4 Dill. 
107; 19 Fed. Cas. 126. 

On the question of the authority of the district court as a court of 
bankruptcy to sell the bankrupt's real estate free from incumbrances, 
the cou-t, construing the Act of 1867, used this language: " The power 
Is given by the first section of the Bankrupt Act by which the jurisdic- 
tion of the court is extended ' to the ascertainment and liquidation of 
the liens and other specific claims ' In the bankrupt's assets ' to the ad- 
justment o*" the priorities and confiicting interest of all parties,' and ' to 
the marshaling and disposition of the different funds and assets so as 
to secure the rights of all parties to the due distribution of the assets 
among all the creditors.' Under the Bankrupt Act of 1841, less com- 
prehensive and explicit provisions were held by the supreme court to 
confer this power." In re Rhodes, 20 Fed. Cas. 652. 

The jurisdiction of a court of bankruptcy is subject to collateral attack 
in another court. Adams et al. v. Tarrell, 4 Fed. Rep. 796. 

The court refused to set aside an adjudication on the ground that the 
petition showed a want of jurisdiction, and held that the point should 
be raised on the application for a discharge. In re Penn et al., 4 Ben. 
99; 19 Fed. Cas, 151. 

[See notes to §§ 9, 11, 18 and 23.] 



53 The Bankeuptcy Law. 



CHAPTEK III. 

BANKEtrPTS. 

§ 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 
he concealed or removed, any part of his property with intent to hinder, 
delay, or defraud his creditors, or any of them; or 

(3.) 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 affected 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. 

(b.) A petition may be filed against a person whp is insolvent and 
who has conunitted an act of bankruptcy within four months after the 
commission of such act. Such time shall not expire until four months 
after: The date of the recording or registering of the transfer or assign- 
ment 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 permitted, 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 
instituted 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 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 word "insolvent" as used in this Act is defined in section 1, clause 15. This definition 
destroys the pertinence of a large number of decisions to the effect that insolvency consists of 
a present Inability to pay one's debts as they mature to the ordinary course of business. 



Bankrupts. 53 

(d.) Whenever a person against whom a petition has been filed as 
hereinbefore 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 testi- 
mony 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 shall 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 petitioner 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 dismissed, to the respondent, his or 
her personal representatives, all costs, expenses, and damages occasioned 
by such seizure, taldng, 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 dam- 
ages shall be fixed and allowed by the court, and paid by the obligors 
in such bond. 

Fraudtilent Payments and Transfers. 

A payment which was otherwise an act of bankruptcy is none the less 
so because it was made upon a fiduciary debt. In re Dibblee et al., 3 Ben. 
283; 7 Fed. Cas. 651. 

The payment by an insurance company to insurees of unearned 
premiums is not such a preference as to support a petition for involuntary 
bankruptcy. Knickerbocker Ins. Co. v. Comstock, 9 N. B. H. 484; 14 
Fed. Cas. 751. 

A bank certified a check on the promise of the drawer that he would 
make his account good during the day. It was held that this created 
simply the relation of debtor and creditor, and that the payment oi the 
debt after insolvency was an act of bankruptcy. Payne et al. v. Solomon, 
14 N. B. R. 162; 19 Fed. Cas. 12. 

An insolvent corporation made a payment of rent to preserve a lease 
of great value. The payment was held to be an act of bankruptcy under 
the Act of 1867, notwithstanding it was made in good faith, and was 



54 The Bankkuptct Law. 

for the best interests of the company. In re Merchants' Ins. Co., 3 
Biss. 162; 17 Fed. Cas. 41. 

Where the petition charged a payment to one creditor by an insolvent 
debtor with intent to give a preference, a mere denial of the intent is 
not sufficient. The debtor must show with what intent he made such 
payment. Failing' in that, judgment may be given against him as upon 
a failure to answer. Silverman's Case, 1 Saw. 410; 22 Fed. Cas. 135. 

An insolvent debtor being indebted to a railroad company for freight, 
paid it in full by furnishing lumber. This was held to be a preference 
and an act of bankruptcy. Farrin v. Crawford et al., 2 N. B. K. 602; 
8 Fed. Cas. 1084. 

An insolvent debtor who gives a preference to a creditor commits an 
act of bankruptcy, however innocent the preferred creditor, or the per- 
son to whom the transfer or payment is made, may be. In re Drummond, 
1 N. B. E. 231; 7 Fed. Cas. 1108. 

Payments for life insurance by an insolvent debtor were held to be 
unlawful; otherwise, as to insurance upon a house and furniture in pur- 
suance of covenants in a lease. In re Kosenfeld, 2 N. B. R. 116; 20 Fed. 
Cas. 1198. 

A conveyance that is made with the Intent to prefer one creditor, but 
in operation would delay all creditors, is an act of bankruptcy. In re 
Williams et al., 1 Low. 406; 29 Fed. Cas. 1322. 

A transfer by one member of a firm of his Individual property with 
intent to prefer a firm creditor, or to defraud firm creditors, will not 
support involuntary proceedings against the firm. In re Williams et al., 
1 Low. 406; 29 Fed. Cas. 1322. 

It was held not to be an act of bankruptcy for a debtor to turn over 
securities in fulfillment of a prior agreement that the proceeds of all 
overdrafts should be the property of the bank; but the law was held 
to be otherwise in the case of a mere promise to deliver such securities 
as he snould purchase with overdrafts. Payne et al. v. Solomon, 14 N. 
B. R. 162; 19 Fed. Cas. 12. 

A conveyance that was fraudulent at common law was an act of 
bankruptcy under the Law of 1841. Gassett et al. v. Morse et al., 21 
Vt. 627; 10 Fed. Cas. 79. 

A debtor settled with all of his creditors except one, whom he secured 
by a transfer of property on a promise that he should have a liberal 
extension of time to pay. Upon a petition filed by the debtor so secureu, 
the transaction was held to be an act of bankruptcy. Ecfort et al. v. 
Greely, 6 N. B. R. 433; 8 Fed. Cas. 279. 

A trader gave his father-in-law a chattel mortgage of his stock to in- 
demnify him as surety on a note. The mortgagor retained possession 
of the goods, and continued to sell them in the usual way. Two months 
later, the mortgagee took possession of the goods under the mortgage. 
It was held that the mortgage and the seizure of the goods wore both 
acts of bankruptcy. In re Foster, 18 N. B. R. 64; 9 Fed. Cas. 524. 



Bankrupts. 55 

The conveyance by a merchant of the whole of his property, not- 
withstanding it Is made for the equal benefit of all of his creditors, is an 
act of bankruptcy per se; but the rule is otherwise in case of a conveyance 
of a part of his property to a particular creditor, unless made in con- 
templation of banljruptcy, or to give the creditor a preference, Jones 
V. Sleeper, 2 N. Y. Leg. Obs. 131; 13 Fed. Cas. 1030 (1843). 

While negotiations were in progress for an extension, the debtors in- 
dorsed a bill of lading to a creditor for the equal benefit of all creditors, 
and for the purpose of protecting the property from attachment. This 
Avas held not to be an act of bankruptcy. Ex parte Potts et al., Crabbe, 
469; 19 Fed. C'as. 1199 (1&12). 

A firm operated a sugar plantation, which the members of the firm 
owned as joint tenants. For the pui-pose of defrauding the creditors of 
the partnership, they executed a mortgage to a third person without 
consideration. This was held to be an act of bankruptcy by the firm. 
Lastrapes et al. v. Blanc et al., 3 Woods. 134; 14 Fed. Cas. 1164. 

It is not an act of bankruptcy for a solvent debtor who did not con- 
template bankruptcy, to give a mortgage on personal property to secure 
a pre-existing debt, notwithstanding the mortgage was made with intent 
to give a preference. In re Dunham et al., 2 Ben. 488; 8 ^ed. Cas. 33. 

A conveyance of property for advances made about the same time was 
not an act of bankruptcy under tlie Act of 1867; otherwise wliere it was 
made some time before the advances. In re Pierson, 10 N. B. K. 107; 19 
Fed. Cas. 661. 

On the question whether a chattel mortgage given partly for an exist- 
ing debt and partly for advances to be made is an act of bankruptcy, 
Judge Lowell quoted, with approbation, the following from Eobison on 
Bankruptcy: " The weight of authority would seem to be in favor of a 
transaction of this sort not being an act of bankruptcy where the advance 
is made liona fide to enable the debtor to meet his engagements or carry 
on his business. Such an act may be, and in fact often is, the wisest 
course a trader can take to promote tlie interest of his creditors." Ex 
parte Ames; In re Macay et al., 1 Low. 561; 1 Fed. Cas. 746. 

Of a firm of four partners, one gave a fraudulent preference, and 
another assented to the transaction. The others dissented as soon as 
they heard of it. The court held that this was an act of bankruptcy on 
the part of the partner who made the assignment, and the one who 
consented to it; that the deed was void; that the partners who had not 
consented were not personally affected, and had not committed an act 
of bankruptcy; but that the firm and the partners, being insolvent, must 
be declared bankrupts under section 14 of the Act of 1841. Ex parte 
Galbraith, 1 N. Y. Leg. Obs. 5; 9 Fed. Cas. 1077 (1842). 

While the debtors were solvent they agreed to give collateral security 
for advances made subsequently, and after they became insolvent, they 
transferred the collateral. The court held that this was not an act of 
bankruptcy. Ex parte Potts et al., Crabbe, 469; 19 Fed. Cas. 1190 (1842). 

A mortgage of the present and future stock of a merchant to secure 



56 The Bankhuptcy Law. 

promised advances is prima facie fraudulent, and an act of bankruptcy 
even though It be a valid security. In re Holland, 2 Hask. 90; 12 Fed. 
Cas. 335. 

The fact that a debtor sold his property for the purpose of going into 
a new bu.siness, the sale being bona fide, did not constitute an act of bank- 
ruptcy under the Law of 18G7, though he kept the proceeds in money, 
and not in tangible property that could be seized on process. Fox v. 
Eckstein, 4 N. B. R. 373; 9 led. Cas. 626. 

In involuntary proceedings it appeared that while the alleged bank- 
rupts were negotiating for an extension of their paper, they ordered a 
piano for a customer who refused to receive it, and thereupon they 
returned it to the vendors. It was held that this was not a preference, 
or an act of bankruptcy. Done v. Compton et al., 2 N. B. E. 607; 7 Fed. 
Cas. 776. 

It is not an act of bankruptcy for an insolvent debtor to continue the 
sale of his stock at retail, and endeavor to make a settlement with his 
creditors. In re Hunger et al., 4 N. B. K. 295; 17 Fed. Cas. 986. 

Referring to section 44 of the Act of 1867, Judge Lowell said: "The 
statute seems to be directed against frauds upon the creditors as a body, 
and It does not refer the intent to the time of the purchase, but to that 
of the disposal of the goods out of the usual course of trade, and at that 
time the fraud could not injure one creditor more than the rest." U. S. 
V. Olark, 1 Low. 402; 25 Fed. Cas. 446. 

Where one partner retires from a firm and transfers his assets and lia- 
bilities to another, the transaction is not necessarily an act of bankruptcy 
on the part of the partnership, but the question to be determined is 
whether it was intended to give a preference to the individual over the 
firm creditors, or to place them on an equality, or in any way to operate 
as a fraud. Bx parte Shouse, Crabbe, 482; 22 Fed. Cas. (1842). 

Debtors, who were insolvent at the time, gave a chattel mortgage on 
tools and machinery to certain creditors. It was held that they had 
committed an act of bankruptcy within the meaning of section 39 of the 
Act of 1867. In re Rogers et al., 2 N. B. R. 397; 20 Fed. Cas. 1105. 

A loan of money in good faith on a mortgage out of which an insolvent 
debtor prefers certain creditors will not be considered as in fraud of 
the bankrupt law when it does not appear that the mortgagee was 
aware of such insolvency, or that an illegal preference was intended. 
In re Packard, 1 Low. 523; 18 Fed. Cas. 957 (1871). 

The execution of a chattel mortgage on the debtor's stock of goods with 
Intent to hinder, delay, and defraud his creditors was held to be an act 
of bankruptcy under the Act of 1867. In re McKibben, 12 N. B. R. 97; 
16 Fed. Cas. 210. 

It does not constitute an act of bankruptcy for one member of an in- 
solvent firm to transfer property of the firm to another member. In re 
Munn, 3 Biss. 442; 17 Fed. Cas. 989. 

The taking of security for a present loan to a debtor doing business 
is not in violation of the letter or spirit of the Bankrupt Act. Wads- 
worth V. Tyler, 2 N. B. R. 316; 28 Fed. Cas. 1320. 



Bankeupts. 57 

The term " fraudulent conveyance " may apply to a legal iraud, and 
not one Involving moral turpituue. Wakeman v. Hoyt, 5 Law Rep. 309; 
28 Fed. Cas. 1350. 

It was held not to be an act of bankruptcy for a debtor to sell his stock 
of goods when there was no proof that he was insolvent at the time, 
and the purchaser acted in good faith. In re Valliquette, 4 N. B. K. 3o7; 
28 Fed. Cas. 930. 

The intent is a question of fact, but if a note and mortgage executed 
by the bankrupt are fictitious, the only reasonable inference in the prem- 
ises is that it was given with intent to hinder and delay creditors, if not 
to defraud them. In re Ryan, 5 Leg. Gaz. 263; 21 Fed. Oas. 105. 

A sale by one insolvent partner to another of his interest in the firm 
for a sufficient consideration is not a fraud on creditors of the firm; 
the assets so transferred being still liable to the debts of the partnership. 
Russell V. McCord, 17 N. B. R. 508; 21 Fed. Cas. 51 (1878). 

The act charged in the petition was a conveyance by a railroad corpora- 
tion of its property in trust to secure bonds, the proceeds of which were 
to be applied to pay all its unsecured debts. Creditors were allowed to 
take the new bonds, or the proceeds thereof, at their option. The con- 
veyance was held not to be an act of bankruptcy. In re Union Pac. Co., 
10 N. B. R. 178; 24 Fed. Cas. 624. 

In the case cited. Judge Lowell expressed the opinion, though he did 
not expressly decide, that it would not be an act of bankruptcy for an 
individual debtor to mortgage his property for the payment of his debts 
ratably. Ibid. 

Prior to the commencement of proceedings, the bankrupt had sold and 
received the purchase price of certain real and personal property. Held, 
that a conveyance made after the commencement of proceedings was 
valid, and not a fraud upon the Bankrupt Act. Steadman v. Caswell et 
al., 2 Hask. 375; 22 Fed. Cas. 1160. 

A transfer of partnership property after Insolvency to pay a debt 
common to all the partners, and which was not a firm debt, was held 
to be an act of bankruptcy under the Law of 1867. In re Matot et al., 
16 N. B. R. 485; 16 Fed. Cas. 1109. 

Judge Brown, of the district court of Michigan, said: "The law is as 
well settled in bankruptcy as in equity that the party who has become 
a party to, assented, or taken benefit from a fraudulent conveyance is 
estopped thereby to claim the same as a fraud or an act of bankruptcy." 
In re Williams, 14 N. B. R. 132; 29 Fed. Cas. 1827. 

It is an evidence of fraud for an insolvent debtor to dispose of prop- 
erty otherwise than in the ordinary course of business. Webb v. Sachs, 
4 Saw. 158; 29 Fed. Cas. 523. 

An assignment for the benefit of creditors was signed by three of five 
partners personally, and in the firm name by one partner as attorney in 
fact without, as It was alleged, any power of attorney from the firm 
authorizing him so to do. The assignment having been set up in a petition 



58 The Bankbuptcy Law. 

by creditors in involuntary bankruptcy, certain other creditors asked 
for leave to contest tlie adjudication on the ground tliat the assignment 
was void. The motion was denied for the reason that it did not show 
that the other partners did not consent to the assignment. In re Law- 
rence et al., 10 Ben. 4; 15 Fed. Cas. 21. 

The Act of 1867 did not prevent an insolvent debtor from selling or 
exchanging his property before the commencement of proceedings against 
him if there was no intent to hinder, defraud or delay creditors. Cook 
V. Tullis, 18 Wall. 332. 

" The act of congress was designed to secure an equal distribution of 
the property of an insolvent debtor among his creditors, and any trans- 
fer 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." Toof V. Martin, 13 Wall. 40. 

Upon the dissolution of a partnership. Its entire effects were trans- 
ferred to the only solvent partner, who sold them in gross. This was 
held not to be an act of bankruptcy. In re Weaver, 9 N. B. R. 132; 29 
Fed. Cas. 485. 

An insurance company, after paying all its current expenses, made an 
assignment under the laws of Ohio of all its assets for the equal benefit 
of its creditors. Judge Sherman held, under the Act of 1867, that this 
was not an act of bankruptcy. Smith et al. v. Teutonia Ins. Co., 4 Chi. 
Leg. News, 130; 22 Fed. Cas. 685. 

A transfer by one member of a firm of his personal property will sup- 
port proceedings against him only, notwithstanding it was made to 
hinder, delay or defraud firm creditors, or to give a preference to one 
of them. In re Redmond et al., 9 N. B. R. 408; 20 Fed. Cas. 400. 

An assignment of all the property of a debtor for the equal benefit 
of creditors was held to be an act of bankruptcy under the Act of 1867. 
In re Randall et al., 1 Deady, 557; 20 Fed. Cas. 222. 

A voluntary assignment by a debtor under state laws, though made 
in good faith and embracing all of his property, and made for the equal 
benefit of all his creditors, was held to be an act of bankruptcy under 
the Act of 1867. Cragin v. Thompson, 2 Dill. 513; 6 Fed. Cas. (08. 

Ten months before filing his petition in bankruptcy, the bankrupt, being 
then unable to pay his debts, and having been sued for the same, made 
a general assignment for the equal benefit of all his creditors. On ex- 
amination, he swore that he had made the assignment in good faith and 
not in contemplation of bankruptcy; but the court held that the effect 
of the assignment being to hinder and delay his creditors, its execution 
was an act of bankruptcy, and a discharge was refused. In re Gold- 
schmidt, 3 Ben. 379; 10 Fed. Cas. 564. 

A chattel mortgage given to secure an existing Indebtedness, with in- 
tent to hinder and delay other creditors, was held to constitute an act 
of bankruptcy within the Law of 1867. In re Cowles 1 N B R 280- 
6 Fed. Cas. 672. 



Bankrupts. 59 

" Preferences throug^h Legal Proceedings." 

A warrant of attorney to confess judgment in contemplation of bank- 
ruptcy is not an act of banlsruptcy unless the debtor procures judgment 
to be entered and an execution to be issued. Barnes v. Bellington, 1 
Wash. C. C. 29; 2 Fed. Cas. 858 (1803). 

It Is not an act of banliruptcy to give a warrant of attorney for a 
consideration of equal value to the amount of the judgment confessed. 
In re Blabon et al. v. Hunc et al., 2 N. J. L. J. 179; 3 Fed. Cas. 493. 

It was decided under the Act of 1841 that the giving of a power of at- 
torney is not an act of banliruptcy unless done fraudulently, and that it 
was not fraudulent if given to a bona flde creditor, unless the debtor 
at the time contemplated an act of bankruptcy, or an application by 
himself to be declared a bankrupt. Buckingham v. McLean, 13 How. 
151. 

A warrant of attorney given to enable the debtor to continue his busi- 
ness, and without intent to defeat the operation of the Bankrupt Act, 
will not support a petition for an adjudication in bankruptcy. In re 
Leeds, 1 N. B. R. 521; 15 Fed. -Gas. 239. 

A confession of judgment for a present consideration followed by the 
issuance of an execution is not an act of bankruptcy unless the creditor 
has the assistance of the debtor. Clark v. Iselin, 21 Wall. 360. 

To avoid " suffering his property to be taken on legal process," under 
the Act of 1867, it was necessary for a debtor when he was sued to 
defend the action, or file his petition in bankruptcy. Fitch et al. v. 
McGie, 2 Biss. 163; Q Fed. Cas. 180. 

There must be active co-operation on the part of the debtor in aiding 
another to obtain a judgment and levy an execution to make it an act 
of bankruptcy. Jones v. Sleeper, 2 N. Y. Leg. Obs. 131; 13 Fed. Cas. 
1030 (1843). 

Mere inactivity of a debtor in permitting judgment on an honest debt 
to be recovered, without having encouraged the suit, is not an act of 
bankruptcy. Order of adjudication reversed. Wright v. Filley, 1 Dill. 
171; 4 N. B. R. 610; 30 Fed. Cas. 672 (1870). 

It was held to be an act of bankruptcy for an insolvent firm to permit 
one of the partners to secure a judgment by default, though the firm was 
lawfully indebted to him. In re Black et al., 2 Ben. 195; 3 Fed. Cas. 
495.. 

A. had secured a judgment in a state court against J., after which the 
latter conveyed all his real estate, of a value greater than the debt, to 
his sons. The court dismissed the petition of A. for an adjudication of 
bankruptcy against J., and held that A.'s remedy was to have the con- 
veyance set aside in a court of equity. Avery v. Johann, 3 N. B. R. 144; 
2 Fed. Cas. 251. 

It was an act of bankruptcy under the Act of 1841 for a trader to pro- 
cure himself to be arrested, or his goods to be attached. Wakeman v. 
Hoyt, 5 Law Rep. 309; 28 Fed. Cas. 1350 (1842). 



60 The Bankeuptct Law. 

Under the Act of 1841 it was held not to be an act of bankruptcy to per- 
mit a judgment to be entered in favor of a particular creditor, and an 
execution to be issued thereon, unless it was shown that the debtor was 
Insolvent at the time. In re Bonnet, 1 N. Y. Leg. Obs. 310; 3 Fed. Cas. 
854 (1843). 

Where the execution on a fictitious judgment rendered before the pas- 
sage of the bankrupt law was, after the passage of the Act, levied on 
property of the alleged debtor, it was held that the debtor by failing 
to take steps to have the judgment set aside, was guilty, being insolvent, 
of suffering his property to be taken on legal process with intent to 
defeat or delay the operation of the Act, and had thus committed an 
act of bankruptcy. It was stated, however, that the plaintiff In the 
fictitious judgment could assert his rights, if any he had, in defending 
a suit to be Instituted by the assignee in behalf of the bankrupt's estate. 
In re Schick, 1 N. B. R. 177; 21 Fed. Cas. 689 (1867). 

A debtor who voluntarily aids a creditor in perfecting an attachment 
of his goods which was previously incomplete, committed an act of 
bankruptcy within the terms of the Act of 1841. Fisher et al. v. Currier 
et al., 5 Law Rep. 217; Fed. Cas. 127 (1842). 

A debtor, being insolvent, or contemplating insolvency, who fails to 
file a petition in voluntary bankruptcy, and whose property is levied 
upon, was held to have " suffered his property to be taken on legal 
process " within the meaning of the Act of 1867. In re Dibblee et al., 
3 Ben. 283; 7 Fed. Cas. 651. 

A creditor levied on the property of the bankrupt in such a manner 
as to give himself a preference over other creditors. He then set up 
these facts in a petition for involuntary bankruptcy, on the ground that 
the debtor had " suffered his property to be taken on legal process." 
It was held that the petition could be entertained. Coxe et al. v. Hale 
et al., 10 Blatchf. 56; 6 Fed. Cas. 689. 

A debtor who procures the appointment of a receiver in a state court 
is chargeable with defeating and delaying the operations of the Bank- 
rupt Act. In re Bininger et al., 7 Blatchf. 262; 3 Fed. Cas. 412. 

The property of a debtor had been attached without his knowledge, 
and he had failed to have himself adjudged a bankrupt by voluntary 
proceedings. The court held that this omission could have no retro- 
active effect to supply the intent necessary to make the attachment an 
act of bankruptcy. In re Belden et al., 2 N. B. R. 42; 3 Fed. Cas. 82. 

Proceedings to wind up the affairs of an insurance company under the 
laws of Illinois, and the appointment of a receiver, were held to be an 
act of bankruptcy as constituting n taking on legal process. The failure 
of the company to file a voluntary petition in bankruptcy was Itself an 
act of bankruptcy, and the fact that the state court had first obtained 
jurisdiction of the parties and the property did not afCect the jurisdic- 
tion of the court In bankruptcy. In re Merchants' Ins. Co., 3 Biss. 162; 
17 Fed. Cas. 41. ' 

When a debtor finds himself insolvent, it is his duty to file a petition 
in voluntary proceedings. Failing In that, if some of his creditors take 



Bankrupts. 61 

his property by attachment or execution, he may be adjudged a biink- 
rupt for having suffered his property to be talien under legal process. 
In re Wells, 3 N. B. R. 371; 29 Fed. Cas. 637. 

Proceedings were commenced under the laws of the state dissolving 
a corporation and appointing a receiver, who took possession of its 
property. It was held that this constituted an act of bankruptcy on 
the part of the company in suffering its property to be taken on legal 
process. In re Washingon Marine Ins. Co., 2 Ben. 292; 29 Fed. Cas. 365. 

It was held not to be a suffering to take property under legal process 
for a debtor to remain passive during proceedings to collect a claim 
which was due, and to which there was no defense. National Bank v. 
Warren, 96 U. S. 539. 

The district court of California decided that the decision of the supreme 
court in Wilson v. City Bank of St. Paul, 17 Wall. 84, did not apply 
to the case where a debtor, hopelessly insolvent, fails to apply for the 
benefit of the Bankrupt Act, and suffers certain creditors to appropriate 
all of his assets. Hyde v. Corrlgan, 9 N. B. R. 466; 12 Fed. Oas. 1106^ 

Held, under the Act of 1867, that the entering of a judgment in pur- 
suance of a warrant of attorney within two months before the filing 
of a creditor's petition is not an act of bankruptcy within the provision 
of the statute. Balfour v. Wheeler, 18 Fed. Rep. 8ii6. 

It was held to raise a presumption of fraudulent Intent where a debtor 
gave a judgment note payable fn one day with the right to issue execu- 
tion therewith. Clarion Bank v. Jones, 21 Wall. 325. 

The alleged bankrupt had made a confession of Judgment to one of 
his creditors with Intent to give him a preference. He was insolvent 
at the time, but did not know that there was such a thing as the bank- 
ruptcy law. This was held to come within section 39 of the Act of 1867 
In that " he suffered his property to be taken on legal process." In re 
Oi-aft, 2 Ben. 214; 6 Fed. Cas. 698. 

Miscellaneous. 

The giving of a chattel mortgage by an infant is not an act of bank- 
ruptcy, being subject to his election to confirm or disafiirm when he 
comes of age. In re Derby, 6 Ben. 232; 7 Fed. Cas. 513. 

Judge Dillon held that " a person who is so unsound in mind as to 
be wholly incapable of managing his affairs cannot in that condition 
commit an act for which he can be forced into bankruptcy by his cred- 
itors against the objection of the guardian. Whether such person on the 
petition of himself or his guardian may, if insolvent, go into voluntary 
bankruptcy, the court gives no opinion." In re Marvin, 1 Dill. 178; 16 
Fed. Cas. 927. 

A corporation cannot commit an act of bankruptcy after being dis- 
solved, and a receiver appointed. The collection, under legal process, 
of an asset of a corporation by such receiver, more than six months 
after the dissolution of the corporation, does not constitute an act of 
baakruptcy; and cannot be the cause of proceedings in bankruptcy. The 



63 The Bankeuptcy Law. 

thirty-ninth section of the Act of 1867 required that the petition shall be 
brought within six months after the act of bankruptcy has been com- 
mitted. In re New Amsterdam Fire Ins. Co., 6 Ben. 368; 18 Fed. Gas. 34. 

An act which is not a fraud in itself may be a violation of the bank- 
rupt law, because it seeks to evade or avoid its provisions. Webb v. 
Sachs, 4 Saw. 158; 29 Fed. Cas. 523. 

Upon the service of process In involuntary proceedings the alleged 
banltrupt indorsed on a copy of the petition an admission of the truth 
of the averments contained therein, except as to those charging fraud. 
Before the hearing, he filed his voluntary petition in the same court, and 
an adjudication was had. Subsequently the court held that the adjudi- 
cation was of no effect, and entertained the proceedings in involuntary 
bankruptcy. In re Stewart, 3 N. B. R. 108; 23 Fed. Cas. 51 

Where one partner procures another to leave the state, the latter, but 
not the former, commits an act of bankruptcy. In re Terry, 5 Biss. 110; 
23 Fed. Cas. 852. 

When a deposition is relied upon to prove an act of bankruptcy it 
must show the fraudulent intent of the debtor in making the convey- 
ance complained of, but the omission can be supplied by a supplemental 
deposition. Cunningham v. C'ady, 13 N. B. R. 525; 6 Fed. Cas. 966. 

EfiPect will be given to the admission of a fact from which a fraudulent 
intent may be inferred, though the admission be qualified with a denial 
of such fraudulent intent. In re Sutherland, Deady, 344; 23 Fed. Cas. 
454. 

Held, under the Act of 1841, that it was not necessary that a prefer- 
ence should have been spontaneous to make it an act of bankruptcy. 
Van Kleeck et al. v. Thurber, 28 Fed. Cas. 1031 (1842). 

Justice Hunt said that acts or omissions that might be evidence of in- 
solvency or fraud in a strictly commercial community may possess less 
significance in the rural districts. Lakin v. First Nat. Bank, 13 Blatchf. 
83; 14 Fed. Cas. 959. 

A debtor who files a petition in voluntary bankruptcy thereby com- 
mits an act of bankruptcy, and a creditor cannot oppose the adjudication 
on the ground that he is really able to pay his debts. In re Fowler, 1 
Low. 161; 9 Fed. Cas. 614. 

Concealment of the debtor from creditors is not an act of bank- 
ruptcy, if it does not prevent the service of process. Barnes v. Belling- 
ton, 1 Wash. C. C. 29; 2 Fed. Cas. 858 (1803). 

Only acts of bankruptcy which are set up in the petition can be proved 
on the hearing. Ex parte Shouse, Crabbe, 482; 22 Fed. Cas. 27 (1842). 

Creditors are not protected by ignorance of the law when they have 
knowledge of facts showing that their debtor is insolvent. Martin v. 
Toof et al., 1 Dill. 203; 16 Fed. Cas. 907. 

Under the Act of 1867 there could be a constructive fraud, consisting 
of a violation of the terms of the law, without an actual fraud under 
section 12. In re Riorden, 14 N. B. R. 332; 20 Fed. Cas. 820. 

A mere omission by accident or mistake was held not to constitute a 
concealment within section 5021, R. S. In re Scott, 11 Fed. Rep. 133. 



Bankrupts. 63 

Insolvency alone is never an act of bankruptcy, and when an act 
of bankruptcy has been once committed, a debtor cannot be relieved 
frgm the legal consequences thereof except by lapse of time, or by ar- 
rangement with the creditors who have the right to sue on account of 
it. In re Ryan, 5 Leg. Gaz. 263; 21 Fed. Cas. 105. 

(a. — 2.) A large number of notes on the question what acts constitute a preference will be 
found under section 69. 
(d.) For notes on the examination of bankrupts, see section 21. 

[See notes to § 8.] 

§ 4. Who May Become Bankrupts. — (a.) Any person who owes 
debts, except a corporation, shall be entitled to the benefits of this 
Act as a voluntary bankrupt. 

(b.) Any natural person, except a wage-earner or a person engaged 
chiefly in farming or the tillage of the soil, any unincorporated com- 
pany, and any corporation engaged principally in manufacturing, 
trading, printing, publishing, or mercantile pursuits, owing debts to 
the amount of one thousand dollars or over, may be adjudged an in- 
voluntary bankrupt upon default of an impartial trial, and shall be 
subject to the provisions and entitled to the benefits of this Act. 
Private bankers, but not national banks or banks incorporated under 
State or Territorial laws, may lie adjudged involuntary bankrupts. 

(a.) Aliens residing in the United States were held to be entitled to 
the benefit of the Bankrupt Act of 1867. In re Boynton, 10 Fed. Rep. 
277. So held also by Judge Lowell. In re Goodfellow, 1 Low. 510; 11 
Fed. Cas. 594. 

An infant is entitled to the benefit of a bankrupt act, and the peti- 
tion may be filed in his own name. In re Book, 3 McLean, 307; 3 Fed. 
Cas. (1843). 

Under the Law of 1867, a married woman might become a voluntary or 
Involuntary bankrupt. In re Collins, 3 Biss. 415; 6 Fed. Cas. 113. 

A debtor against whom involuntary proceedings had been commenced 
made a composition with his creditors, but was unable to carry it out, 
and it was set aside. Thereupon, he filed his voluntary petition, and a 
decree of adjudication was had. The court stayed the former, and pro- 
ceeded with the voluntary proceedings. In re Flannigan, 5 Saw. 312; 9 
Fed. Cas. 239. 

A court of bankruptcy has no jurisdiction over a petition filed by an 
Infant, or to confirm an adjudication of bankruptcy previously made on 
a petition filed after the infant comes of age. In re Derby, 6 Ben. 232; 
7 Fed. Cas. 513. 

(b.) It is generally true that proceedings in involuntary bankruptcy are 
proceedings in rem, and this is especially true where the bankrupt is a 
corporation. Piatt v. Archer, 9 Blatchf. 559; 19 Fed. Gas. 822. 



64 The Bankruptcy Law. 

After an adjudication in bankruptcy by default, the bankrupt filed a 
petition claiming that he was insane when the debts of the petitioning 
creditor were incurred, and also at the time of the adjudication. The 
adjudication was set aside, and the bankrupt allowed to answer. In 
re Murphy, 10 N. B. K. 48; 17 Fed. Cas. 1080. 

In a case where one of two partners filed a petition in voluntary bank- 
ruptcy and prayed that the other partner might be adjudged a bank- 
rupt, alleging that he had refused to join in the voluntary petition, the 
court held that as to the latter the proceeding was one of involuntary 
bankruptcy. Midsker v. Bonebrake, 108 U. S. 66. 

Judge Gresham held that in Indiana a petition in bankruptcy could not 
be sustained against a married woman having no separate property, in- 
asmuch as she is still incompetent to contract by the laws of the state. 
In re Goodman, 5 Biss. 401; 10 Fed. Cas. 601. 

Where by the laws of the state a married woman was liable to an 
action for indebtedness contracted by her while living separate and 
apart from her husband, she may be adjudged a bankrupt for such a 
claim. In re Lyon, 2 Saw. 524; 15 Fed. Cas. 1192. 

A fire insurance company was held to be within the language of sec- 
tion 37 of the Act of 1867. In re Merchants' Ins. Co., 3 Biss. 162; 17 Fed. 
Cas. 41. 

A railroad company is " a business corporation " within the meaning 
of section 37 of the Bankruptcy Act of 1867. Adams v. Boston, H. & B. 
R. B. Co., Holmes, 30; 1 Fed. Cas. 90; Ala. & C. R. Co. v. Jones, 5 N. B. 
R. 97; 1 Fed. Cas. 275. 

Under the Act of 1867 the court of bankruptcy had authority to ad- 
judicate a railroad company bankrupt, and to administer its property. 
New Orleans, etc., B. Co. v. Delamore, 114 TJ. S. 501. 

It was held by District Judge Durell of Louisiana that railroad corpo- 
rations, in their character as branches of the great system of internal 
commerce, were not within the province of the bankrupt law, and not 
liable to be adjudged bankrupts. In re Oplousa & G. W. B. Co., 3 N. 
B. R. 31; 18 Fed. Cas. 751 (1869). 

Justice Clifford decided in the case cited that railroad companies, not 
being created for the administration of political or municipal authority, 
are private corporations; that congress has power to subject them to the 
provisions of a bankrupt act, and to authorize the transfer of their 
franchises. Sweatt v. Boston, H. & E. B. B. Co. et al., 3 OlifC. 339; 23 Fed. 
Cas. 530. 

Notwithstanding the practical difficulties in the administration in 
bankruptcy of a railway company, such corporations are not excluded 
from the operation of the Bankrupt Act. Winter v. Railway Co., 2 Dill. 
487; 30 Fed. Cas. 329 (1873). 

A railroad corporation was held to be subject to the operations of the 
Bankrupt Act, notwithstandinp; its claim that it belonged to a system of 
state improvements, and could not be considered a private corporation. 
Bankins et al. v. Fla., A. & G. O. B. R. Co., 1 N. B. B. (yil; 20 Fed. 
Cas. 274. 



Bankrupts. 65 

Under the Act of 1867, the petition for Involuntary bankruptcy against 

railroad company which failed to allege in the terms of the act (§ 39) 
that the company was a " banker, broker, merchant, trader, manufacturer 
or miner " was held defective; no proof of such, facts being- offered, the 
petition was dismissed. Ala. & O. R. R. Co. t. Jones, 5 N. B. R. 97; 1 
Fed. Cas. 275. 

Proceedings in bankruptcy against a railroad company were dismissed 
where the stockholders, who had purchased all the outstanding indebted- 
ness except a few small claims, desired it, and it appeared to be for the 
best interests of Wl parties. The court required, however, that the par- 
ties applying for the dismissal should give security for the payment of 
the objecting creditors. In re Indianapolis, O. & L. R. Co., 5 Biss. 287; 
13 Fed. Cas. 27. 

A state court had appointed receivers of an insurance company with 
authority to collect its assets, made perpetual an injunction against tlie 
further prosecution of business, and declared " that the said corpora- 
tion be, and the same is hereby, dissolved." It was held that notwith- 
standing this action, proceedings in bankruptcy might be maintained. 
In re Independent Ins. Co., Holmes, 103; 13 Fed. Cas. 18. 

The stockholders of a corporation had become individually liable for its 
debts under the provisions of the law of Rhode Island, and a judgment 
creditor filed a petition to have them adjudged bankrupts. The district 
court dismissed the petition, and the circuit court confirmed its decision, 
holding that the petitioner was restricted to the remedies provided by 
the law creating the liability. James v. Atlantic D. Co. et al., 11 N. B. R. 
390; 13 Fed. Cas. 300. 

That a corporation is not such as to be liable to bankruptcy proceedings 
is a fact that should appear by the pleading, and the objection is waived 
by an omission to so aver in the answer. In re Oregon Bulletin Printing 
Pub. Co., 13 N. B. R. 506; 18 Fed. Cas. 773 (1876). 

Held, that the petition in bankruptcy must show that the alleged bank- 
rupt corporation was such a corporation as was subject to adjudication 
under the terms of the bankrupt law. The omission of such averment 
renders the petition demurrable. Oregon Bulletin Printing Pub. Co., 3 
Saw. 614; 18 Fed. Cas. 783. 

[See notes under § 50.] 

Paetneeship. 

§ 5. Partners. — (a.) A partnership, during the continuation of the 
partnership business, or after its dissolution and before the final settle- 
ment 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. 

5 



66 The Bankkuptot Law. 

(e.) The court of bankruptcy which has Jurisdiction of one of the 
partners may have jurisdiction of all the partners and of the adminis- 
tration 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 appro- 
priated to the payment of the partnership debts, and the net proceeds 
of the individual estate of each partner to the payment of his individual 
debts. Should any surplus remain of the property of any partner after 
paying his individual debts, such surplus shall be added to the part- 
nership assets and be appUed 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 proportion 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 pre- 
vent 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 
partnership being adjudged bankrupt, the partnership property shall 
not be administered 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 expedi- 
tiously as its nature will permit, and account for the interest of the 
partner or partners adjudged bankrupt. 

When and by Wliom. Proceedings may be Instituted. 

Proceedings in bankruptcy may be maintained against a firm as long 
as there are undistributed joint assets, and joint liabilities. In re Gor- 
ham, 9 Biss. 23; 10 Fed. Cas. 823. 

As long as there are partnership debts outstanding, a firm that has 
been dissolved is subject to joint adjudication. In re Williams et al., 1 
Low. 406; 20 Fed. Cas. 1322. 

The fact that one of the members of a firm has been adjudged a bank- 
rupt will not prevent proceedings against the copartnership.. Hunt et 
al. V. Pooke et al., 5 N. B. E. 101; 12 Fed. Oas. 930. 



Bankrupts. 67 

It was necessary, under the Act of 1841, that all members of a firm 
should unite in a petition in voluntary bankruptcy. Ex parte Hartz et 
al., 1 N. Y. Leg. Obs. 39; 11 Fed. Gas. 722 (1842). 

On a voluntary petition in banliruptcy by a firm, the court can deter- 
mine who constituted the firm, and such a determination will stand until 
it is set aside. In re Griffith et al., 18 N. B. R. 510; 11 Fed. Gas. 38. 

As long as there is any unfinished business on the part of the firm, 
debts, or credits, or assets of any kind, it is within the province of the 
bankrupt court to settle it, and either of the partners, or a creditor, may 
come into the bankrupt court for that purpose. In re Noonan, 5 Chi. 
Leg. News, 5o7; 18 Fed. Gas. 298. 

Persons who have been adjudged banlu-upts as partners cannot there- 
after be heard to deny that a partnership existed. In re Gilbert et al., 
1 N. Y. Leg. Obs. 327; 10 Fed. Gas. 344. 

A petition against a firm will not be dismissed because one of the part- 
ners dies after the filing but before adjudication. Hunt et al. v. Pooke 
et al., 5 N. B. R. 101; 12 Fed. Gas. 930. 

The circuit court, affirming the district court, held that an adjudication 
of a firm in one district will not prevent proceedings in another district 
against another firm, some of the partners in which are members of the 
former firm. In re Jewett et al., 7 Biss. 473; 13 Fed. Gas. 591; s. c. in the 
district court, 7 Biss. 328; 13 Fed. Gas. 585. 

A married woman had Invested her separate property in a partnership. 
The court held that it was not necessary to make her husband a party to 
proceedings in involuntary bankruptcy against the firm. Lastrapes et al. 
V. Blanc et al., 3 Woods. 134; 14 Fed. Gas. 1164. 

A court of bankruptcy will not entertain a petition by one member of a 
firm which is filed for the purpose of harassing his partner. In re Hamlin 
et al., 8 Biss. 122; 11 Fed. Gas. 360. 

One of the members of a firm which has been dissolved, and its debts 
settled, cannot have an adjudication of bankruptcy against the firm on 
representations of his own fraud in making the settlement. In re Hamlin 
et al., 8 Biss. 122; 11 Fed. Gas. 369. 

' A firm of three members was dissolved by the retiring of one member. 
The others, after doing business for some time, filed their petition in 
bankruptcy. The third member objected to the proceedings, and it was 
held that the court had jurisdiction of the firm property on the petition 
of the two partners. In re Mitchell et al., 3 N. B. R. 441; 17 B"ed. Oas. 491. 

Under the Act of 1841 members of a dissolved firm could not apply for 
an adjudication in bankruptcy as to their joint debts where there was no 
partnership property within the jurisdiction of the court. Bx parte 
Hartz et al., 1 N. Y.- Leg. Obs. 39; 11 Fed. Oas. 722 (1842). 

A firm had been dissolved and one of the parties had assumed its debts 
and given a bond for their payment. Thereafter, he filed a petition 
against the firm. The creditors did not unite in the petition. The peti- 
tion was dismissed. In re Bennett et al., 2 Low. 400; 3 Fed. Gas. 209. 

Under the Act of 1867 the bankruptcy of one partner dissolved the 
partnership, and the assignee in bankruptcy became tenant in common 



68 The Bankbuptcy Law. 

with the solvent partner as to the "joint stock. Willdns v. Davis, 2 Low. 
511; 29 Fed. Gas. 1248. 

A decree of bankruptcy against a member of a firm dissolves the part- 
nership, and the partnership effects are vested in the assignee and the 
solvent partners as by a tenancy in common. Ex parte Norcross, 5 Law 
Rep. 124; 18 Fed. Oas. 300. 

A partnership had been dissolved, and one of the partners had under- 
taken to pay all the firm debts, but this agreement had not been assented 
to by the creditors. It was held that he could maintain a petition to 
have himself and his copartner adjudged bankrupt. In re Stowers et al., 

1 Low. 528; 23 Fed. Gas. 209. 

Under the Act of 186T the surviving partner could be adjudged a bank- 
rupt for acts done respecting the assets cf a former partnership, not- 
withstanding the individual estate of the deceased partner was sufficient 
to pay all the firm and personal debts. In re Stevens, 1 Saw. 397; 23 
Fed. Cas. 4. 

Where one partner obtained an adjudication against his firm which had 
been dissolved by the death of his copartner, it was held that the adjudi- 
cation was void. In re Temple, 4 Saw. 92; 23 Fed. Cas. 835. 

The business of a firm had been continued by the executors of a de- 
ceased partner. Proceedings in bankruptcy were commenced against the 
firm, and the real estate of the decedent sold. Held, that the purchaser 
acquired no valid title. Adams et al. v. Tarrell, 4 Fed. Eep. 796. 

Proceedings in bankruptcy against a firm does not give the court juris- 
diction over the separate estate of a deceased partner. So held under the 
Act of 1867 (section 12). Ibid. 

There must be an adjudication of bankruptcy against partners com- 
posing a firm, and an assignee must be appointed in such proceeding, 
before any step can be taken to reach in bankruptcy the partnership 
assets. In re Sheppard, 3 Ben. 347; 2 N. B. R. 172; 21 Fed. Cas. 1256 
(1869). 

When one partner's petition to have the firm adjudged voluntary bank- 
rupt on the ground of Insolvency, and the other partner denying the fact 
of a partnership, a verdict is rendered that a partnership existed,— after 
adjudication and in proceedings for discharge, it was held tliat the 
resisting partner should be deemed a voluntary bankrupt. In re Wilson, 

2 Low. 453; 13 N. B.' R. 253; 30 Fed. Gas. 97 (1875). 

When there are firm debts and firm assets the firm must be declared 
bankrupt by either voluntary or involuntary proceedings before any mem- 
ber of the firm can be discharged in bankruptcy from its liability. This 
does not apply to copartnerships previously terminated by bankruptcy, 
insolvency, assignment or otherwise. In re Wlnkens; 2 N. B. R. 349; 30 
Fed. Cas. 302 (1869). 

Where a petition against a firm named only two of three partners, it 
was held that the third partner could not be added, by amendment, after 
the testimony had been taken, and that no adjudication could be had 
against the firm. In re Pitt et al., 8 Ben. 389; 19 Fed. Cas. 745. 



Bankrupts. 69 

Partners Lave the right severally as well as jointly to institute volun- 
tary proceedings in banliruptcy wliereby they may be discharged from 
that partnership as well as their individual liability. In re Noonan, 5 
Chi. Leg. News, 557; 18 Fed. Cas. 298. 

A discharge in bankruptcy releases a member of a firm from his joint 
as well as his separate debts, and his partners are bound by the dis- 
charge as well as joint creditors. Willjins v. Davis, 2 Low. 511; 2& Fed. 
Cas. 1248. 

When there are no partnership assets to be collected and paid out, one 
member of a former partnership may, upon his individual petition, be 
discharged from all his debts, partnership and private. In re Marx, 16 
Fed. Cas. 763. 

It was held under the Act of 1841 that a firm is liable to be adjudged 
banlirupts upon acts committed prior to the passage of the law. Ex 
parte How et al., 1 N. Y. Leg. Obs. 1; 12 Fed. Oas. 853. 

On the motion of three bankrupts composing a firm for a discharge, 
creditors who opposed the discharge of two of them offered in evidence a 
decree In a suit brought against them by the assignee, and depositions 
by each of them In that suit; also proof of statements to other parties 
made by the third partner to the bankrupts. Judge Blatchford decided 
that each deposition was evidence against the deponent; that the decree 
was evidence against all of them, and that the deposition and statements 
of the third partner were not admissible against either of the other two. 
In re Leland et al., 8 Ben. 204; 15 Fed. Oas. 290. 

It was competent for a court of bankruptcy under the Act of 1807 to 
adjudge a pai-ty a bankrupt both as an individual and as the surviving 
partner of a firm. Briswalter v. Long, 14 Fed. Rep. 153. 

The fact that two firms were concerned together in a certain business 
entei-prise and kept a joint account in bank did not establish a copartner- 
ship between them, so that the holder of one of their checks could file a 
petition in bankruptcy against the members of both. In re Warner et al., 
7 N. B. R. 47; 29 Fed. Cas. 233. 

Certain persons who had formed themselves into an association failed 
to comply with the laws of the state respecting corporations, but con- 
tinued to do business as an association. It was held that they were liable 
as copartners, and that a creditor who had dealt with them in their sup- 
posed character as a corporation was not estopped from proceeding 
against them on their Individual liability. In re Mendenhall, 9 N. B. R. 
497; 17 Fed. Cas. 10. 

A petition in bankruptcy against a firm was resisted by one of the 
alleged members on the ground that he was a special, and not a general 
partner. The proof was that he had contributed a sum of money and a 
stock of goods under an agreement with his copartners that he should be 
a special partner only. It was held that this did not comply with the 
laws of New York on the subject of limited partnerships, and that he 
must be treated as a general partner. In re Merrill et al., 12 Blatehf. 221; 
17 Fed. Cas. 82. 



70 The Bankhuptcy Law. 

An adjudication against tiie ostensible members of a firm is binding on 
tlie partnership property, notwitlistanding a dormant partner is omitted. 
Metcalf V. Officer et al., 5 Dill. 565; 17 Fed. Cas. 174. 

Where one partner files a petition that the firm be adjudged bankrupt, 
another partner may oppose the adjudication by showing that the firm is 
not insolvent. In re Fowler, 1 Low. 161; 9 Fed. Cas. 614. 

A partnership creditor may proceed against one partner alone on a 
joint debt. In re Melick, 4 N. B. R. 97; 16 Fed. Cas. 132S. 

A partnership consisting of husband and wife may be adjudicated bank- 
rupts, and Judge Blodgett, of the district court of Illinois, intimated that 
there might also be an adjudication as to the wife individually. In re 
Klnkead, 3 Biss. 405; 14 Fed. Cas. 599. 

One member of a firm sold out his interest to a third person. There- 
after, the remaining partner filed a petition asking for an adjudication 
as to the firm and each of Its members. There was no joint property at 
the time of the application. It was held that section 36 of the Act of 
1867 did not authorize such a proceeding as to the firm or the retired 
partner. In re Hartough, 3 N. B. R. 422; 11 Fed. Cas. 707. 

One who was known to be a secret partner when the indebtedness was 
incurred may be adjudged a bankrupt on a petition against the firm, 
though entirely solvent, and though he had not himself committed any 
acts of bankruptcy. In re Ess et al., 3 Biss. 301; 8 Fed. Cas. 785. 

A partner who has retired from the firm may, nevertheless, be adjudi- 
cated a bankrupt with the other partners when the business was con- 
ducted in the old name, and he permitted himself to be held out as a 
member of the firm. In re Krueger et al., 2 Low. 66; 14 Fed. Cas. 868. 

C., S. and J. were members of a firm which had been dissolved. After 
dissolution, O. and S. filed a petition for an adjudication of bankruptcy 
of themselves and J. The only partnership asset was a right of action 
for an alleged tort. Held, under section 14 of the Act of 1867, that the 
claim was not one that passed to the assignee, and that the petition must 
be dismissed as to J. In re Crockett et al., 2 Ben. 514; 6 Fed. Cas. 836. 

Under the Act of 1867 it was held that the adjudication of a member 
of a firm, and of the firm, must be made on one petition, and that two 
petitions for such purpose could not be consolidated. In re Plumb, 9 Ben. 
279; 19 Fed. Cas. 886. 

When there are no assets of a copartnership to be administered, a 
member of a late copartnership may, upon his individual petition, be dis- 
charged from all his debts, copartnership as well as individual. In re 
Abbe, 7 A. L. Reg. (N. C.) 824; 1 Fed. Cas. 3. 

When a member of a firm is discharged on his individual petition he 
is not released from the partnership debts. Hudgins v. Lane et al., 2 
Hughes, 361; 12 Fed. Cas. 800. 

One member of a firm filed a petition in bankruptcy and took up on his 
schedules the assets and liabilities of the firm. An application of another 
partner to be made a party to these proceedings, and to have the firm 
adjudged bankrupt was allowed. In re Gorham, 9 Biss. 23; 10 Fed 
Cas. 823. 



Bankrupts. 71 

A creditor petitioned for an order to compel the bankrupts, who were 
partners, to amend their petition by Including others who were alleged to 
be copartners. The petition was dismissed, the court saying that it was 
an attempt under the guise of voluntary bankruptcy to accomplish in- 
voluntary bankruptcy. In re Harbough et al., 1& N. B. R. 246; 11 Fed. 
Cas. 476. 

After adjudication the bankrupt and his assignee filed a petition setting 
up that the bankrupt was a member of a firm with debts and assets, and 
praying that the other members might be brought in, and an adjudication 
had as to the firm. The court refused to dismiss the petition summarily, 
and ordered the other partners to answer. In re Kelley, 19 N. B. R. 326; 
14 Fed. Cas. 236. 

The court allowed a petitioner in voluntary bankruptcy to amend his 
petition so as to make it cover partnership as v/ell as personal debts. In 
re Bidwell, 2 N. B. R. 229; 3 Fed. Cas. 38S. 

Where only one partner had signed a petition under the Act of 1867, 
Judge Drummond said: "There is nothing that I can see in the bank- 
rupt law to prevent one partner from making his application for a dis- 
charge under the law from his individual debts, and from his debts as a 
copartner of a firm. It seems to be desirable that the nonjoining partner 
should know that the appUcation is made, leaving it optional that he 
come in if he pleases, or take any action he may choose. * * * The 
law does not require, nor does the rule (Rule 18) — and in fact the law 
seems to be otherwise — that before a member of a firm can be discharged 
under the bankrupt law, he must request the other members of the firm 
also to apply. The rule seems to give the option to that member of the 
firm who does not apply to join in the application and declares what the 
consequences shall be to nonjoinders. * * * Of course the petition 
must be amended and ask that the firm be declared bankrupt." In re 
Moore et al., 5 Biss. 79; 17 Fed. Cas. 661. 

The Interest of one of the members of a limited partnership was pur- 
chased by the other members. The other members having been adjudi- 
cated bankrupts, it was held that the assignee had no claim against the 
former partner. Wight v. Oondict, 154 U. S, 666. 

The firm of W. & N. bought out the firm of W. & B. and assumed its 
debts. W. & N. filed a voluntary petition, and asked that B. be included 
in the decree. The court held that this could not be done. In re Wallace 
et al., 12 N. B. R. 191; 29 Fed. Cas. 67. 

It is unnecessary to enumerate in detail the effects of the bankrupt 
partner in the petition. It is more convenient that this be done subse- 
quently before a commissioner. Ex parte Norcross, 5 Law Rep. 124; 18 
Fed. Cas. 300 (1843;. 

On the petition of a bankrupt who was a member of two firms, the 
court held that it had jurisdiction of his petition in favor of himself, and 
as against his copartners, to adjudicate upon himself and the firms. In 
re Smith, 16 Fed. Rep. 465. 



72 The Bankruptcy Law. 

Administration of Joint and Separate Estates. 

It was held that if one member of a firm applied for the benefit of the 
Bankrupt Act of 1841, if the firm were insolvent, the assignee took all 
of its effects. McLean v. Johnson et al., 3 McLean, 202; 16 Fed. Cas. 
251 (1843). 

Creditors of a firm, one member of which is dead, can enforce, by pro- 
ceedings in bankruptcy, the equitable obligation of the survivor to apply 
the joint estate to the payment of the partnership debts. In re Clap, 
2 Low. 168; 5 Fed. Cas. 814. 

Under the Act of 1841, where a firm and the individual members were 
bankrupts, the adjudication went against all of them, and their joint 
and separate property passed to the assignees. Fisher et al. v. Currier 
et al., 5 Law Rep. 217; 9 Fed. Cas. 127 (1842). 

An adjudication of one of the members of a firm upon his own petition 
does not give the assignee any title to the property of the firm. Hudgins 
V. Lane et al., 2 Hughes, 361; 12 Fed. Cas. 800. 

An assignee cannot deal with the joint proiDerty of a firm unless all 
the members are adjudged bankrupt. Crompton et al. v. Conkllng, 9 
Ben. 225; 6 Fed. Cas. 848. 

The fact that one partner is solvent while the others are insolvent 
does not entitle him to take goods out of the possession of the bank- 
rupt court, such possession being acquired through proceedings in bank- 
ruptcy against the insolvent partners. In re Shannahan, 6 Biss. 39; 21 
Fed. Cas. 1153 (1874). 

It was held under the Act of 1800 that where a separate commission 
was issued against one partner, only his interest in- the partnership 
property passed to the assignee. Harrison v. Sterry, 5 Oranch, 289. 

A debtor who was a member of two firms filed his individual petition 
in bankruptcy, entering on his schedules the assets and liabilities of 
both firms. After he had been adjudicated a bankrupt, the assignees 
petitioned the court to adjudge the two firms bankrupt. The other 
partners opposed the proceeding, and denied that their firms had com- 
mitted any act of bankruptcy. The court granted the motion of the 
assignees, holding that the separate petitioner could not be discharged 
of a portion of his liabilities merely, but if at all, it must be of all of 
them; and that this could not be done unless the debts of both firms 
of which he was a member were paid, or the firm assets administered 
in the court of bankruptcy. In re»Grady, 3 N. B. E. 227; 10 Fed. Cas. 904. 

The bankrupts were a firm that had in its hands assets of prior firms 
in which the plaintiff was a partner. After nearly two years he de- 
manded of the assignee in bankruptcy an account of his interest in the 
old firm. Ten years later, he brought this action to assert his right to 
administer its assets as the sole solvent partner. It was held that his 
right of action was barred by laches and by section 5057, Revised Stat- 
utes. Vetterlein v. Barnes, 6 Fed. Rep. 603. 

Under the laws of Massachusetts respecting limited partnerships, the 
court held that where the general partner in such a firm became bank- 



Bankrupts. 73 

rnpt, and the assets were not sufficient to pay the joint debts, his as- 
signee could recover from the special partner such sums as had been 
withdrawn by him during the continuance of the firm. Wilkins v. Davis, 
2 Low. 511; 29 Fed. Gas. 1348. 

Where one partner becojiies banljrupt, his assignee only talces that 
portion of the partnership assets which would belong to the bankrupt 
after payment of all the partnership debts; the solvent partners having 
a lien on all the partnership assets for the firm debts, and also for their 
own shares thereof before the separate creditor of the banlirupt can 
take anything. Parker v. Muggridge, 2. Story, 3.34; 18 Fed. Oas. 1148 
<1842). 

A firm was dissolved and the property divided between the partners. 
One of them sold an interest in his share to a third person and formed 
a partnership with him. The new firm contracted debts and became 
bankrupt. Before the adjudication a creditor of the old firm attached 
their property. It was held that the assignee in bankruptcy was entitled 
to the joint property of the new firm for the benefit of its creditors, and 
that only the balance was subject to attachment by creditors of the 
old firm. Crane v. Morrison et al., 4 Saw. 138; 6 Fed. Gas. 757. 

When one member of a firm, who is in possession of its assets, be- 
comes bankrupt, they are not assets in the hands ot the assignee, and 
if he gains possession of them he must account for the proceeds to the 
creditors of the firm. Jones et al. v. Newson et al., 7 Biss. 321; 13 Fed. 
Cas. 996. 

Under the Act of 1867 a creditor who had proved a debt against one 
member of a firm only could not participate in the election of an as- 
signee for the firm. In re Phelp et al., 1 N. B. E. 525; 19 Fed. Cas. 436. 

Under the Act of 1867, in the case of the separate bankruptcy of one 
member of a firm, a joint creditor had a right to prove his joint debt, 
and vote for assignee. In re Webb, 4 Saw. 326; 29 Fed. Cas. 495. 

Distribution of Assets, Etc. 

Where an individual partner fraudulently drew and deposited checks, 
and hypothecated them as securities for the benefit of the firm without 
first receiving the proceeds of such checks and hypothecations, the firm 
is liable for conversion. In re Ketchum et al., 1 Fed. Rep. 815. 

Where the members of a firm, more than four months before the com- 
mencement of proceedings in bankruptcy, conveyed to one partner all of 
their property, both joint and several, and he assumed the debts of the 
firm, it was decided that all the assets should be treated as the separate 
assets of such partner. In re Collier et al., 12 N. B. R. 266; 6 Fed. Gas. 
107. 

One partner gave another, whose interest he purchased, a bond and 
security to relieve him from the debts of the firm. The outgoing partner 
having been discharged under the Bankrupt Act of 1841, could still 
enforce the obligation to pay the partnership debts, and so also could the 
creditors for whose benefit the obligation was given. Hood v. Spencer 
et al., 4 McLean, 168; 12 Fed. Cas. 459. 



74 The Bankkuptoy Law. 

The assignee sought to have the proof of -a claim expunged on the 
ground that the alleged creditor was a partner of the bankrupt. In deny- 
ing the motion, the court said that one could be heard to deny his mem- 
bership of a fii-m In the absence of conduct so open and notorious that 
all the creditors believed him to be a partner, and gave credit to the firm 
on the strength of that belief. In re Goold, 2 Hask. 34; 10 Fed. Cas. 761. 

The creditors of a firm have the first right to be paid out of the part- 
nership estate, and equity will give relief against an attempt to defeat 
this right by transferring all the partnership assets to one member of the 
firm. Collins et al. v. Hood, 4 McLean, 186; 6 Fed. Cas. 129 (1846). 

A partnership debt is not entitled to a dividend out of the individual 
assets until the individual debts are paid in full. In re HoUlster, a Fed. 
Rep. 452. 

The bankrupt law provides for the primary payment of firm debts out 
of the partnership assets, and of Individual debts out of the separate 
assets of each partner; but it does not 'prescribe any rule or furnish any 
method for ascertaining the character of distributable assets. In re Zug, 
16 N. B. K. 280'; 30 Fed. Gas. 947 (1877). 

In this case title to real estate used for firm purposes and purchased 
with the firm's money w-as held in the proportion of four-fifths in one 
partner and one-fifth in another. Held, that agreeably to the law of 
Pennsylvania relating to real estate, the proceeds of the land in question 
should be regarded as assets of the individual members of the firm, and 
should be distributed accordingly. Ibid. 

It was decided under the Act of 1867 that where partners filed separate 
petitions, separate creditors have the first right in the distribution of the 
separate assets, whether there were any partnership effects or not. In re 
Morse, 13 N. B. B. 376; 17 Fed. Cas. 852. 

Under the Act of 180O a creditor of a partnership could prcfve a joint 
debt under a separate commission against one of the partners and re- 
ceive a full dividend. The court further held that the joint creditor 
could only be prevented from receiving his full dividend until the joint 
effects were exhausted by the intervention of equity. Tucker v. Oxley, 
5 Granch, 35. 

Justice Story used this language: " The whole fund in court belongs 
to the separate estate of the bankrupt W., and, of course, upon general 
principles of law as well as the positive enactment of the fourteenth 
section of the Bankrupt Act of 1841, chapter 9, the whole is in the first 
Instance to be applied to the payment of the debts due from him, and 
proved by his separate creditors; and as there is no surplus, joint cred- 
itors of the firm of which W. was a partner can take nothing." In re 
Williams, 5 Law Rep. 402; 29 Fed. Cas. 1321 (18421. 

Three of four partners settled by composition with the creditors of the 
firm. The fourth member was afterward, in another proceeding, ad- 
judged a bankrupt. It was held that the firm creditors were not entitled 
to share in the assets of the bankrupt on a footing with separate creditors, 
except as to the firm's paper on which the bankrupt was individually 
bound as indorser. In re Adams, 29 Fed. Rep. 843. 



Bankkupts. 75 

M. and S. were partners in a store. M. purchased' the Interest of S., 
Including bills receivable, and agreed to pay the debts of the firm. For 
more than a year thereafter he continued the business, buying a new 
stock, which was mingled with the old, and selling from both. He was 
then adjudged a bankrupt. The court held that the bankrupt's effects 
were to be regarded as his separate estate and subject to the payment 
of his Individual debts before any payments could be made on account 
of the old firm. In re Montgomery, 3 Ben. 567; 17 Fed. Cas. 618. 

The assets of a partner who continued to conduct the business under 
the firm name after dissolution, with the consent of his copartner, will 
be treated as joint assets. In re Morse, 13 N. B. E. 376; 17 Fed. Gas. 852. 

The surviving member of a firm continued to carry on the business after 
the death of his copartner, and with the consent of the latter' s admin- 
istrators. After continuing the business for some time, he was adjudged 
a bankrupt, and an assignee appointed to take possession of the property. 
It was held that the creditors whose claims had accrued before and after 
the death were entitled to share pro rata in the funds in the hands of the 
assignee; also that the administrators might prove against the estate of 
the surviving partner any claim they might have for the interest of the 
decedent in the copartnership. In re Mills, 11 N. B. R. 74; 17 Fed. Cas. 
894. 

Where the members of a firm after dissolution continue to treat each 
other as partners, such a dissolution can have no effect upon the rights 
of the creditors. In re McFarland, 10 N. B. R. 31; 16 Fed. Cas. 89. 

When the business of a dissolved partnership is continued in the firm 
name without change, and no notice is given of the dissolution, the prop- 
erty of the partnership will be treated in bankruptcy as assets of the firm. 
In re Tomes et al., 19 N. B. R. 36; 24 Fed. Cas. 24. 

A bankrupt firm had advanced money to an individual member beyond 
his share of the capital. The court allowed the assignee in bankruptcy to 
prove the claim of the firm against his separate estate, but restrained the 
assignee from applying any portion of his separate estate to the payment 
of the firm debt until all his separate creditors were fully satisfied. In 
re McLean et al., 15 N. B. R. 333; 16 Fed. Cas. 240. 

Two of the members of a firm had received its assets and assumed its 
debts. The creditor proved his claim in bankruptcy against these mem- 
bers of the firm, and shared In the dividends from their estate. He was 
allowed to prove the balance of his claim against the other partner in 
bankruptcy, and share equally with the other creditors of the latter. In 
re Pease, 13 N. B. R. 168; 19 Fed. Cas. 68. 

A partner having sued for a dissolution of the firm, and proceedings in 
bankruptcy having been begun against the firm, the partner could only 
claim, on the dissolution, his individual property, which would pass to 
the assignee for the payment of his personal debts. In re Clark et al., 4 
Ben. 88; 5 Fed. Cas. 835. 

Where all the partners are the same, and they carry on the same busi- 
ness under different partnership names, they are the same firm, and the 



76 The Bankkuptcy Law. 

assets of both nominal firms are equally applicable to the payment of all 
creditors. In re Williams et al., 3 Woods. 493; 29 Fed. Cas. 1329. 

Though the English courts have ruled to the contrary, it was held in 
this country under the Act of 1841 that where a firm and the several 
members thereof were declared bankrupt, a creditor who held a bill of 
exchange drawn by the firm and indorsed by one of the partners could 
share in dividends both from the joint estate of the firm and the separate 
estate of such partner. In re Farnum et al., 6 Law Rep. 21; 8 Fed. Cas. 
1057 (1843). 

One of four partners paid the entire indebtedness of the firm. Two of 
the other partners were insolvent, and the third was in bankruptcy. The 
partner who had paid the firm's debts was allowed to prove one-half of 
the amount paid against the bankrupt partner. In re Dell, 6 Saw. 344; 7 
Fed. Cas. 415. 

The holder of a draft drawn by one firm and accepted by another, 
where both were adjudged bankrupts, cannot share equally with the 
individual creditors in the separate assets of one who was a partner of 
both firms. In re Dunkerson et al., 4 Biss. 277; 8 Fed. Cas. 54. 

" Although, in the distribution of the general assets of a bankrupt, the 
partnership assets are to be first applied to the partnership debts, and the 
individual assets of any separate partner first applied to his individual 
debts, according to the terms of the bankrupt law, yet when a judgment 
has been obtained by a partnership firm against the members of a con- 
cern, such judgment operates as a several lien against the real estate of 
«ach partner, and if prior in point of time, a judgment obtained against 
an individual creditor of such partner is to be preferred to such subse- 
quent judgment; but the court is further of the opinion that when such 
partnership creditor can get satisfaction of any part of said judgment 
out of the partnership assets, the pro rata distribution to which such 
partnership creditor is entitled out of the partnership fund shall be first 
applied as a credit on said judgment against the separate partner, in 
relief of the fund of such separate partner for the benefit of the separate 
creditors." In re Lewis, 2 Hughes, 320; 15 Fed. Cas. 455. 

Where the individual creditor of two partners obtains separate judg- 
ments against each, and under executions thereon purchases the interest 
of each in the partnership before the commencement of proceedings in 
bankruptcy, it was held that the right of the assignee in bankruptcy of 
the partnership was superior to that of the execution creditor, and that 
the joint debts of the partnership had priority and must be first paid out 
of the partnership property. Osborne v. McBride, 16 N. B. R. '>t- 18 Fed 
Oas. 842 (1876). 

A firm consisting of two partners dissolved the partnership and subse- 
quently formed another partnership. It was held by Judge Blatchford 
that creditors of the first partnership were not entitled to prove their 
debts against the subsequent bankrupt firm. Debts against the old dis- 
solved firm are debts against each partner separately, and are not debts 
against the subsequent copartnership. See section 5121, R. S., title " Bank- 



Bankrupts. 77 

ruptcy " of the Act of 1867. In re Nims, 10 Blatchf. 439; 18 Fed. Cas. 
255. 

It was held that under the laws of Illinois a husband and wife might 
be partners in business. In the case of such a firm, the joint creditors 
are entitled to be paid out of the partnership assets in preference to the 
individual creditors of the husband. In re Kinliead, 3 Biss. 405; 14 Fed. 
Cas. 599. 

Where one member of a firm has no individual debts, creditors of the 
firm are entitled to his individual assets, and also to appear in opposition 
to a discharge. In re Leavitt, 1 Hasli. 194; 15 Fed. Cas. 122. 

Two merchants united their stocli of goods and agreed that their 
separate debts should be assumed by the firm thus organized. Subse- 
quently they became banlirupt. It was held that a separate creditor who 
had not consented to the arrangement, could not prove his claim against 
the joint estate. In re Isaacs et al., 3 Saw. 35; 13 Fed. Cas. 148. 

Separate creditors are not entitled to interest on their claims after 
adjudication as against joint creditors. In re Benson et al., 16 N. B. R. 
75; 3 Fed. Cas. 255. (Following the supreme court of Massachusetts in 
Thomas v. Mlnot, 10 Gray, 263.). 

The interest of members of a firm individually is only in the surplus 
after the payment of the partnership debts. In re Oorbett, 5 Saw. 206; 
6 Fed. Cas. 528. 

A creditor of a firm cannot participate in the individual assets of a 
bankrupt partner until his separate creditors are paid, if the other part- 
ners are solvent. In re Dunham, 1 Hasli. 495; 8 Fed. Cas. 35. 

All the debts of a partnership must be paid before a member of the 
firm can claim payment of a debt that accrued to him in the course of the 
business of the copartnership. Cory v. Clark, 2 N. J. Law J. 122; 6 Fed. 
Gas. 606. 

The assets of a firm will be applied to the payment of its debts without 
regard to the proportion in which the several partners have contributed 
to its capital. In re Low et al., 11 N. B. K. 221; 15 Fed. Cas. 1015 

A partnership was formed between a father and his infant son. The 
father furnished the stock in trade, and the son was to contribute his 
services, and each was to have a half interest. The original stock being 
exhausted, new goods were purchased. The court held that the new 
stock could not be seized by the father's creditors, but must be applied 
to the debts of the firm. In re Minor, 11 Fed. Rep. 406. 

D. >vas a member of the firms of D. & Co. and B. & D. The debts of 
the former firm exceeded its assets, but D. owned property in excess of 
his personal debts. B. & D. owed a bank over $16,000. The court ordered 
that the distribution be made as follows: That the personal debts of D. 
be paid out of his individual assets; that the joint assets of D. & Co. be 
distributed pro rata to the creditors of the firm, and that the individual 
assets of D., after satisfying his personal debts, should be distributed 
among all the creditors who had proved their claims and to whom D. at 
the time of the filing of the petition in bankruptcy was liable as a mem- 
ber of either firm. In re Dunkerson et al., 4 Biss. 323; 8 Fed. Cas. 55. 



78 The Bankettptcy Law. 

One partner sold out his interest to another and assumed the firm debts. 
He continued the business, and added to his stock by purchases. Pro- 
ceedings in banlsruptcy having been commenced, it was held that the 
joint creditors of the firm should share equally with the individual cred- 
itors without showing that they had first exhausted the personal estate 
of the retiring partner. In re Rice, 9 N. B. R. 373; 20 Fed. Cas. 654. 

When the assets of a bankrupt firm are absorbed in the payment of 
costs, joint and separate creditors must share equally in the separate 
assets of the several partners. In re McEwen et al., 6 Biss. 294; 16 Fed. 
Cas. 82. 

The members of a firm having been adjudged bankrupts, and a creditor 
holding their joint bond having proved his claim against them separately 
and not against the firm, the assets of the partnership not being sufficient 
to pay its debts, it was held that the creditor could receive a dividend 
out of the separate assets of the individual bankrupts. In re Bigelow et 
al., 3 Ben. 146; 3 Fed. Cas. 345. 

Creditors of a firm having a judgment against the two members of the 
firm jointly are not entitled to dividends in bankruptcy against the 
separate estate of each bankrupt pari passu with the separate creditors 
of each bankrupt. In re Berrian et al., 6 Ben. 297; 3 Fed. Cas. 283. 

C. had received a discharge on proceedings in involuntary bankruptcy 
against him alone. C. and H., as a firm, had given a promissory note in 
the firm name. A suit was commenced against them on the note, and C. 
set up his discharge in defense. It was held that if there was no partner- 
ship property, the discharge of C. released him from the debts of the firm; 
otherwise not. Crompton et al. v. Oonkling, 9 Ben. 225; 6 Fed. Cas. 848; 
Crompton v. Conkling et al., 15 N. B. R. 417; 6 Fed. Gas. 850. 

The firm had been dissolved, and one of the partners agreed to pay all 
of its debts. The partners were put into bankruptcy separately, and 
there were no joint assets. Held, that the firm creditors and the creditors 
of the partner who had assumed the debts were entitled to share equally 
in the estate of such partner. In re Downing, 1 Dill. 33; 7 Fed. Cas. 1005. 

The bankrupt's personal debts had been contracted on the strength of 
property invested in a partnership. The firm conveyed its property by a 
deed of trust to secure its indebtedness, and the bulk of the property was 
sold, but the partnership was not formally dissolved. Later, the bank- 
rupt filed his petition. The court decided that the individual and copart- 
nership creditors of the bankrupt should share equally. In re Goedde et 
al., 6 N. B. R. 295; 10 Fed. Cas. 524. 

Where a firm received the consideration for a note, but it was signed 
by the partners individually, it was held that the holders were entitled 
to dividends out of their separate estates. In re Bucyrus M. Co., 5 N. B. 
R. 303; 4 Fed. Cas. 584. 

Where there are no firm assets, and the partners are all insolvent, the 
debts of the firm and of the individual members can be proved and both 
classes of creditors will share equally in the estate. In re Knight 2 
Biss. 518; 14 Fed. Cas. 752. 



Bankeupts. 79 

" When a debt from one partner to the firm was incurred by the con- 
sent or privity of the other partners, proof of the joint creditors against 
the separate estate will not be admitted in a court of bankruptcy." In re 
McEwen et al., 6 Biss. 294; 16 Fed. Cas. 82. 

The claimant had obtained a divorce from her husband, and he and his 
partner had executed a bond for the payment of alimony. It was held 
that she was not entitled to be paid from the firm assets as against firm 
creditors. In re Roddin et al., 6 Biss. S77; 20 Fed. Cas. 1084. 

J. bought the interest of his partner in the firm of J. & B., which was 
indebted for some of the goods so sold to J. The firm had no assets. 
Proceedings of involuntary bankruptcy having been commenced against 
J., it was held that the creditors of the partnership were entitled to share 
on equal terms with the individual creditors. In re Jewett, 1 N. B. R. 
491; 13 Fed. Cas. 583. In a later case growing out of the same bank- 
ruptcy, it was held that B. could not receive dividends from the assignee 
on the notes which he received for his interest in the iBrm, until all the 
partnership debts were paid. In re Jewett, 1 N, B. R. 495; 13 Fed. Oas. 
594. 

The estate of the firm was exhausted in the expenses incurred in col- 
lecting it. The court decided, under section 36 of the Act of 1867, that 
the firm creditors could share equally with the individual creditors in the 
individual estate. In re Slocum et al., 22 Fed. Cas. 328. 

The rule that firm assets shall be first applied to the payment of firm 
debts, and individual assets to the payment of individual debts, except 
that when there are no firm assets the firm creditors shall share equally 
with individual creditors in the individual assets, applies where petitions 
have been filed against the partners separately. When firm assets are 
only sufficient to pay the costs and expense's of the proceeding, firm 
creditors have a right to share with individual creditors under the above 
rule; but neglect by the firm creditors to avail themselves of a fund 
whereby it was dissipated deprives them of this right. In re Litchfield, 
5 Fed. Rep. 47. 

While joint creditors have priority over separate creditors in firm 
assets, and separate creditors over joint, as to the individual assets of 
partners, yet when there are no partnership assets, the firm creditors 
are entitled to share in the separate assets; and where one partner has 
assumed the firm debts the firm creditor may share in his estate equally 
with separate creditors. In re Lloyd, 22 Fed. Rep. 28. 

Construing the Act of 1867 (sections 5075 and 5121, R. S.), Judge Deady 
held that the property of a partnership is to be first applied to a payment 
of the partnership debts, and the property of each partner to the pay- 
ment of his individual debts. In re Estes et al., 3 Fed. Rep. 134. 

Section 14 of the Act of 1841 was held to be simply the rule of equity 
as to the distribution of the assets of a partnership, and the individual 
members. In re Warren, 2 Ware, 322; 29 Fed. Cas. 266 (1847). 

Held, under the Act of 1867, that the rule that the property of a firm 
must be applied to the partnership debts, and the separate estate of the 



80 The Bankbuptcy Law, 

partners to their indlviclual debt., only applies when the joint estate as 
well as the separate estate is before the court for distribution. U. S. y. 
Lewis at al., 13 N. B. R. 33; 26 Fed. Cas. 920. 

In proceedings against a partnership, joint and individual assets are 
separate funds for the payment of joint and personal creditors respectively. 
Where there are balances of the separate estates, they should be added 
to the joint estate for the payment of joint creditors, and after these 
have been paid, if any balance remains, it should be divided among the 
partners. In re South Boston Iron Co., 4 Cliff. 343; 22 Fed. Cas. 812. 

Held, under the Act of 1867, that firm creditors cannot share in the 
individual estate of bankrupts when there are partnership assets. In re 
Smith et al., 13 N. B. R. 500; 22 Fed. Cas. 402. 

A firm " jointly and severally " guaranteed the payment of an obbga- 
tion. On the question whether it could be proved against the joint estate 
in bankruptcy, the court said: " The creditors are at liberty, therefore, to 
go to proof to show the liability of the bankrupt to the creditor to have 
been of a partnership character, and proceedings on the dividend will 
be stayed until the report of the commissioner and the judgment of the 
court thereon." Ex parte Miller, 1 N. Y. Leg. Obs. 38; 17 Fed. Cas. 292 
(1842). 

Act of 1841 construed. The provision devoting joint assets to firm 
creditors and separate estate to separate creditors was held not to apply 
where there were no joint assets. In re West, 30 Fed. Rep. 203. 

If there is any balance of partnership assets after deducting its share 
of the costs of the proceedings, the partnership creditors cannot share 
pari passu with the individual creditors in the distribution of the separate 
estates. In re Blummer, 12 Fed. Rep. 489. 

Where there are assets of a firm, the adjudication of a member of the 
copartnership does not discharge him from the firm liabilities. In re 
Plumb, 9 Ben. 279; 19 Fed. Cas. 886. 

Real estate purchased with partnership funds is treated as personal 
property, and is subject to the payment of firm debts as against a judg- 
ment creditor of an individual member of the firm. Marrett v. Murphey 
et al., 11 N. B. R. 131; 16 Fed. Cas. 782. 

Section 36 of the Act of 1867 contemplated that assets were to be 
marshaled between the joint and separate creditors of partners only when 
there were joint and separate assets, and proceedings had been instituted 
against the firm and the individual members. In re Downing, 1 Dill. 33; 
7 Fed. cas. 1005. 

A partnership desiring an extension of time, the individual members of 
the firm agreed to convey land to the creditor, the same to be sold and 
applied to the debt. The firm becoming bankrupt, it was held that the 
agi-eement was simply a security for the original firm debt, and that the 
debt was provable against the firm, and was not an individual debt. 
Gauss V. Schrader, 48 Fed. Rep. 816. 

Where there are both joint and separate debts proved on a separate 
petition, the latter must be paid first. In re Byrne, 1 N. B. R. 464; 4 Fed. 
Gas. 951. 



Bankrupts. 81 

Where there are firm assets, the creditors of a partnership cannot be 
allowed to prove their debts against the separate estate of a partner; and 
this is true without regard to the amount of the assets, or how they were 
produced. So held under the Act of 1841. In re Marwlcli, 8 Law Rep. 
169; 16 Fed. Cas. 929 (1845). 

The holder of commercial paper signed by a firm and indorsed by one 
of the members can prove his debt in bankruptcy against both the firm 
and the individual indorser, and share in the dividends of each estate. 
Emery et al. v. Canal N. Banlv, 3 Cliff. 507; 8 Fed. Cas. 644. 

A firm creditor is not estopped from asserting the liability of a special 
partner by an adjudication against the firm and the members in whose 
name the firm conducted its business. Abbendroth v. Van Dolsen, 131 
V. S. 66. 

An accommodation note indorsed by one member of a partnership for 
the benefit of a third person without the linowledge or consent of the 
other partner cannot be proved up against the firm. In re Irving et al., 
17 N. B. R. 22; 13 Fed. Cas. 110. 

A party purchased a note of a firm, and afterward proved it as a claim 
in bankruptcy against the signers alone. It was held that he could not 
recover from secret partners who belonged to the firm without his 
knowledge at the time of the purchase. In re Munn, 3 Biss. 442; 17 Fed. 
Cas. 989. 

A decree had been entered against a firm upon a joint obligation as 
sureties for a debt, and it was paid out of the firm assets. Later, the 
firm was dissolved, and one of the partners was indebted to another. 
The debtor partner having gone into bankruptcy, the solvent partner 
sought to be subrogated to the rights of the creditor of the firm under 
the decree mentioned against the Individual estate of the bankrupt part- 
ner. Held, that he could not be subrogated. In re Smith, 16 N. B. R. 
113; 22 Fed. Cas. 408. 

The bankrupts carried on business in different places under different 
names. Held, that the two firms were to be treated as one; that no 
notice was to be taken of the indebtedness of one firm to the other, and 
that the proceeds of the separate estates of the partners, after paying 
their individual debts, were to be added to the joint stock. In re Vetter- 
leln et al., 5 Ben. 311; 28 Fed. Cas. 1170. 

In a case where a trust fund had been invested in a partnership busi- 
ness, the copartner of the executor having knowledge of the source of 
the money, the court used this language: "When the copartnership 
as such received and used the fund with full knowledge of its character, 
the partnership became liable therefor. The creditors or beneficiaries 
could, therefore, pursue one or the other; the only doubtful proposition is 
whether they can pursue both." It was thereupon held that the parties 
entitled to the fund could prove their debts against the partnership, 
notwithstanding they had already proved it against the executor. In 
re Tesson et al., 9 N. B. B. 378; 23 Fed. Cas. 866. 

6. 



83 The Bankruptcy Law. 

Judge Bond held that a party holding the note of a firm indorsed by 
one of its members may prove his claim against both, and elect out 
of which fund it will be paid. Stephenson v. Jackson, 2 Hughes, 204; 
22 Fed. Cas. 1307 

Where the consideration for a note is treated as copartnership funds, 
it is a liability of the firm, though signed by the members with their 
individual names. In re Thomas et al., 8 Biss. 139; 23 p-ed. Oas. 923. 

Under the Law of 1867 a joint creditor could prove his debt against 
the separate estate of the bankrupt, vote for assignee, examine the 
debtor and appear in opposition to his discharge. He could not, however, 
participate in the distribution of separate assets as against separate 
creditors. Wilklns v. Davis, 2 Low. 511; 29 Fed. Cas. 1348. 

[For notes on the jurisdiction of courts of bankruptcy over partnerships as dependent on 
residence or place of business, see section S.] 

Exemptions. 
§ 6. Exemptions of Bankrupts. — (a.) 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 domicile for the six months or the greater 
portion thereof immediately preceding the filing of the petition. 

Homesteads. 

The rights of parties to a proceeding in bankruptcy are fixed as of 
the date of the adjudication; and if no homestead exemption could have 
been allowed at that time, the bankrupt could not claim any by virtue 
of subsequent laws. In re Kerr et al., 9 N. B. R. 566; 14 Fed. Cas. 386. 

The right to a homestead exemption may be forfeited by fraud. So 
where merchants purchased an additional stock of goods, and then 
traded their whole stock for a house and lot, it was held that they could 
not claim the premises as a homestead as against the assignee in bank- 
ruptcy. Pratt et al. v. Barr, 5 Biss. 36; 19 Fed. Cas. 548. 

The assignee in bankruptcy was ordered to intervene in a proceeding 
whereby the bankrupt had caused a homestead to be set apart to his 
family a few days before filing a petition, from which order an appeal 
was then pending. It was further decided that in the meantime the 
assignee could not take possession of the property. In re Moseley et al., 
8 N. B. R. 208; 17 Fed. Cas. 886. 

Property exempted as a homestead is not subject to the jurisdiction 
of a court in bankruptcy, and those who have claims against it must 
prosecute them in the state courts. This rule is not affected by the fact 
that the bankrupt had waived his right to the exemption. In re Bass, 
3 Woods, 382; 2 Fed. Cas. 1004. 

Where an assignee set aside certain property of the bankrupt as a 
homestead, and the bankrupt was not entitled to the exemption, the 
assignee was held responsible for his failure to sell the property for the 



Bankrupts. 83 

benefit of the creditors. In re Jackson et al., 2 N. B. R. 508; 13 Fed Cas 
■M3. 

Three days before a bankrupt firm went into bankruptcy, one of the 
partners took notes belonging to it and with them purchased a home- 
stead. It was decided that he could not retain it as exempt. In re 
Boothroyd, 14 N. B. R. 223; 3 Fed. Cas. 872. 

Where a creditor of the bankrupt was proceeding to sell certain real 
estate on an execution issued prior to the bankruptcy, the district 
court will not entertain a petition for an order setting it apart as a 
homestead, and an injunction against the sale of the property on the 
execution. The remedy of the bankrupt is in the state courts. In re 
Hunt, 5 N. B. R. 499; 12 Fed. Oas. 802. 

It is sufficient if a bankrupt claims his homestead exemption when 
the assignee applies for an order to sell the property. Bartholemew v. 
West et al., 2 Dill. 290; 2 Fed. Cas. 963. 

Under the laws of the state, the bankrupt was entitled to a home- 
stead exemption to the value of $500. The assignee sold the farm be- 
longing to the bankrupt, free from the homestead right. It was held 
that the bankrupt was entitled to $500 out of the proceeds. In re Beede, 
19 N. B. R. 68; 3 Fed. Cas. 62. 

A deed in which the wife joined, conveying the farm where the bank- 
rupt resided, was set aside at the suit of the assignee In bankruptcy 
as a fraud upon creditors. It was held that the giving of the deed did 
not bar the right of the wife to dower, or the right of the bankrupt to 
his homestead exemption. Cox v. Wilder et al., 2 Dill. 45; 6 Fed. Cas. 
684; reversing s. c. 5 N. B. B, 443; 6 Fed. Cas. 685. 

When a debtor made a conveyance which was afterward set aside as 
a preference under the Bankruptcy Act of 1867, it was held that the 
right to a homestead and dower both revived. In re Detert, 11 N. B. R. 
293; 7 Fed. Cas. 545. 

It was held under section 14 of the Act of 1867 that the bankrupt is 
entitled to a homestead out of lands mortgaged by him to secure a loan. 
In re Brown, 3 N. B. R. 250; 4 Fed. Oas. 334. 

The holder of a note waiving the exemption of a homestead must 
be paid out of the proceeds, if the homestead has been set apart with- 
out notice. In re Judkins, 2 Hughes, 401; 13 Fed. Cas. 1193. 

Where the bankrupt's right of homestead in the property on which 
he resides is cut ofC by a mortgage, the court in bankruptcy can order 
the bankrupt to deliver possession to the purchaser on a foreclosure sale 
without requiring him to bring a suit in ejectment. In re Betts, 4 Dill. 
93; 3 Fed. Cas. 314. 

A conveyance by the bankrupt of property occupied as a homestead to 
a trustee for the benefit of his wife was void as against the creditors. 
The court held that it was, however, good as between the husband and 
wife, and that the latter was entitled to a homestead allowance out of the 
proceeds. Smith v. Kehr et al., 2 Dill. 50; 22 Fed. Cas. 584. 



84 The Bankeuptcy Law. 

The humane policy of the exemption laws applies in bankruptcy. 
When, therefore, a state law allows a money exemption In lieu of home- 
stead, a bankrupt partner should be allowed the same out of the assets 
of a bankrupt partnership. In the case cited District Judge Shuman 
gives his reasons for reversing his previous rulings on the question. In 
re Rupp, 4 N. B. R. 95; 21 Fed. Oas. 215 (1870). 

The right of the wife and family to a homestead exemption is no title, 
lien or incumbrance upon the husband's property until it has been ap- 
propriated by a judgment. Hence jurisdiction over It passes, In case 
of bankruptcy of the husband, to the federal court. Woolfolk v. Murray, 
10 N. B. R. 540; 30 Fed. Oas. 600 (1874). 

The bankrupt having acquired a rural homestead, the fact that the land 
is subsequently included within the limits of a city by act of legislature 
cannot affect his homestead rights. In re Young, 15 N. B. R. 205; 30 
Fed. Gas. 835 (1876). 

A creditor having objected to the exemption of a homestead under the 
laws of the state on the ground that it exceeded in value the limitation 
of the statute, the court ordered it to be sold, the surplus in value above 
the limitation to be paid Into the general fund. In re Watson, 2 N. B. R^ 
570; 29 Fed. Gas. 421. 

Where a copartnership is insolvent, or is possessed of assets not more 
than adequate for the payment of its debts, one member of the firm, 
by retiring, cannot rightfully withdraw beyond the reach of creditors 
a portion of the assets by putting them in the shape of a homestead. A 
homestead so acquired will be subjected to the debts of creditors in 
bankruptcy. In re SauthofC, 16 N. B. R. 181; 21 Fed. Gas. 542 (1877). 

The wife of an Insolvent had contracted to purchase certain property 
and it was subsequently conveyed to her. Her husband, more than four 
months before the filing of the petition in bankruptcy, furnished $1,400 
as part of the purchase price. This was held to be a fraud upon his 
creditors. Under the Act of 1867, in a suit brought by the assignee, the 
husband was required to convey to him his interest in such homestead, 
less the amount that he was authorized by law to invest in the home- 
stead under the laws of the state. Johnson v. May et ux., 16 N. B. R. 
425; 13 Fed. Gas. 771. 

A petitioner in voluntary proceedings had sold, prior to filing his peti- 
tion, a homestead that was exempt under the laws of the state. It was 
held that he could not invoke the protection of the Bankrupt Act in 
favor of the vendee. In re Everett, 9 N. B. R. 90; 8 Fed. Gas. 906. 

Personal property which is subject to exemption under the laws of 
the state in lieu of a homestead will be set apart to the bankrupt, not- 
withstanding it had been levied upon under an execution. In re Peebles, 
2 Hughes, 394; 19 Fed. Gas. 94. 

A conveyance by a bankrupt and wife of their homestead was set 
aside by the assignee in bankruptcy as fraudulent. It was held that the 
conveyance did not Impair their rights to the homestead, which must be 
recognized In the proceedings in bankruptcy. McFarland v. Goodman 
et al., 6 Biss. Ill; 16 Fed. Gas. 90. 



Bankrupts. 85 

Held, under the Act of 18C7, that the assignee should Include the home- 
stead in his schedule of the exempt property. In re Slnnett, 4 Saw. 250; 
22 Fed. Oas. 228. 

A creditor may enforce his lien against the homestead of a bankrupt 
without respect to the pendency of the proceedings. Ibid. 

When a homestead right may be lost by abandonment, the proof of 
such abandonment must be clear and decisive. Rix v. Gapitol Banli, 2 
Dill. 367; 20 Fed. Cas. 846. 

The waiver by a debtor of his homestead to a certain creditor does not 
operate in favor of the general creditors. In re Poleman, 5 Biss. 526; 19 
Fed. Cas. 918. 

An insolvent sold his personal property, and with the proceeds paid 
a mortgage on his homestead; nevertheless it was held under the laws 
of California that he might claim the exemption of the homestead 
against the assignee in banliruptcy. In re Henliel, 2 Saw. 305; 11 Fed. 
Cas. 1124. 

The Constitution of Florida exempts as a homestead 160 acres of land, 
not in an incorporated town or city, without any limit as to its value. 
It was held in the case of a farmer that this exemption would cover his 
house and farm to the limit mentioned in area, together with the im- 
provements thereon; but did not embrace tenement-houses and mills 
erected on a portion of the tract; also that a millowner who has a farm 
attached to his mill could hold his residence and mill, but not the farm. 
Oreely v. Scott et al., 2 Woods. 667; 10 Fed. Cas. 1072. 

Judge Ersliine, of the district court of Georgia, affirmed the decision 
of the register, as follows: "On the 1st of June, 1868, Dr. William 
Taylor, then residing in a house in Irwinton, which he had rented, 
having as his family Mrs. Oarswell, her three children and two or more 
hired servants which were hired by him and were under his control, 
was the head of a family, and as he still continues so to reside, his posi- 
tion as head of the family still continues." Proceeding, the register held 
that he was entitled to an exemption of fifty acres of land under the laws 
of Georgia, but not to any enlargement of his exemption on account of 
the three children of fllrs. Oarswell. In re Taylor, 3 N. B. K, 157; 23 
Fed. Cas. 730. 

Held, under the laws of Georgia, that a bankrupt could not claim the 
exemption of a homestead as against a mortgage given to secure the 
purchase price. In re Whitehead, 2 N. B. R. 599; 29 Fed. Cas. 10.30. 

It was held in Illinois that where the homestead of a bankrupt was 
sold under a mortgage, the assignee in bankruptcy should set apart to 
the bankrupt $1,000 in cash from the proceeds after paying the mort- 
gaged claim, unless the property was susceptible of division so as to 
set apart the homestead. In re Poleman, 5 Biss. 526; 19 Fed. Cas. 918. 

Under the Constitution of Kansas, it was held that property occupied 
by the bankrupt as a residence did not pass to the assignee, and that 
he could not sustain a bill to set aside a prior mortgage on said property, 
or to restrain its foreclosure in a state court. Rlx v. Capitol Bank, 2 
Dill. 367; 20 Fed. Oas. 846. 



86 The Bankhuptcy Law. 

The bankrupt was the owner of a brewery In an incorporated town, 
and occupied part of the building as a residence. Held, under the laws 
of Kansas, that the whole house was exempt as a homestead. In re 
Tertelling, 2 Dill. 339; 23 Fed. Cas. 861. 

In Kentucky, land cannot be exempted as against debts contracted 
before Its acquisition, nor can a debtor claim the exemption of an un- 
divided interest In lands upon which there are no improvements, although 
he intended to build a house on the property and occupy it as a home- 
stead. In re Duerson, 13 N. B. B. 183; 7 Fed. Cas. 1166. 

A court of bankruptcy will recognize the right of homestead notwith- 
standing the bankrupt has absconded. If his family still resides thereon, 
in the absence of proof that he has acquired a domicile elsewhere. So 
held in Michigan. In re Pratt, 1 Flip. 353; 19 Fed. Cas. 1247. 

The provisions of the Homestead Exemption Act of Missouri con- 
sidered and applied in Bailey v. Comings, 16 N. B. R. 382; 2 Fed. Cas. 367. 

The homestead law of Missouri provided that It should not apply to 
any debts or liabilities contracted before it took effect. A public ad- 
ministrator gave his bond and took the property of a decedent before 
the statute went into force, and subsequently misappropriated it. Judge 
Dillon held that the claim of the heirs was a liability contracted before, 
and in existence when, the homestead law was passed. In re Hook, 
2 Dill. 92; 12 Fed. Cas. 453. 

Under the laws of Missouri in force In 1864, a debtor could carve 
out a homestead from a leasehold estate, and when it could not be di- 
vided, he could retain $1,000 from the proceeds. In re Beckerford, 1 
Dill. 45; 4 N. B. R. 203; 3 Fed. Cas. 26. 

Reversing the district court. Judge Dillon granted a motion by the 
mortgagees for an order directing the assignee in bankruptcy to sell 
the homestead, which was exempt under the laws of Nebraska, in pur- 
suance of a mortgage executed by the bankrupt and his wife, notwith- 
standing it contained no express waiver of the homestead right. In re 
Cross, 2 Dill. 320; 6 Fed. Cas. 884. 

In Nebraska, a homestead exemption may be claimed as to property 
of which the bankrupt is not sole owner, but in which he has such an 
interest as could be sold on execution. Bartholemew v. West et al., 2 
Dill. 290; 2 Fed. Cas. 963. 

Nevada copied the exemption law of California, but the Constitutions 
of the two states on that subject were different. Held, that in constru- 
ing the Nevada law the court of bankruptcy was not bound by the 
construction of the courts of California; held, also, that a bankrupt was 
entitled to an interest not exceeding $5,000 in value in a dwelling-house 
and land actually occupied by him as a homestead, notwithstanding he 
was only a tenant in common. In re Swearlnger et al., 5 Saw. 52; ''3 
Fed. Cas. 527. 

After a homestead had been set apart, under the laws of North 
Carolina, to a bankrupt, the district court refused to order a reassess- 
ment to correct an alleged excess of value. In re Hall, 2 Hughes, 411; 
11 Fed. Cas. 199. 



Bankrupts. 87 

The laws of North Carolina require that one who seeks a homestead 
exemption shall file a petition and have the property set off to him. 
The banlirupt having failed to comply with this provision, it was ruled 
that the assignee must sell the property for the benefit of the creditors. 
In re P'arish, 2 N. B. R. 168; 8 Fed. Gas. 1015. 

While a banlirupt owned but a single piece of real estate, which was 
mortgaged for more than its value, it was held under the exemption 
laws of Ohio that he was not the owner of a homestead, and that he was 
entitled to an exemption from personal property to an amount not ex- 
ceeding $500. In re May, 16 Fed. Gas. 1207. 

Held, in Ohio, that where the wife of the bankrupt is the owner of a 
house not occupied as a homestead, the bankrupt is entitled to an exemp- 
tion of property to the value of $500. In re Tonne, 13 N. B. E. 170; 24 
Fed. Gas. 51. 

A single man, keeping house, and having orphan children bound to 
him under the apprentice laws of the state, was held not to be entitled to 
the exemption of a homestead of 100 acres under the laws of Texas. A 
tract of fifty acres, not to exceed in value $500, was ordered to be set 
apart to him as a citizen. In re Summers, 3 N. B. R. 84; 23 Fed. Gas. 379. 

It was held not to be necessary that town lots should be contiguous 
to each other to authorize an exemption under the Constitution of Texas, 
if they were designated and used as a hoinestead, and did not in the 
aggregate exceed $5,000, irrespective of improvements. Thelso v. Cain, 
23 Fed. Gas. 906. 

The laws of Vermont allowed a homestead exemption to the value of 
$500. It was held that that sum might be put into an undivided interest 
in real estate and into premises to which others held the legal title. 
Johnson v. May et ux., 16 N. B. R. 425; 13 Fed. Gas. 771. 

The homestead law of Wisconsin exempts not to exceed one-quarter 
of an acre of land in a village or city and " the dwelling-house thereon." 
It was decided that this does not cover a business block used as a 
dwelling. The court further decided that in the case of a dwelling- 
house and a store on the same lot, the former could be set off as a home- 
stead, but that he could not divide a building and assign to a bankrupt 
the part occupied by him. In re Lammer, 7 Biss. 269; 14 Fed. Gas. 1048. 

The bankrupt had sold his homestead, and received notes in part pay- 
ment of the purchase price. It was held under the Act of 1867 and 
the laws of Virginia that he could claim the notes as exempt against 
Judgments recovered against him in actions for torts, and notwith- 
standing he had removed from the state after adjudication. In re Rad- 
way, 3 Hughes, 609; 20 Fed. Gas. 154. 

Under the laws of Virginia, a claim for rent is superior to the right 
of homestead. A landlord in that state solicited and secured a con- 
fession of judgment from the bankrupt, the judgment showing that it 
was " recovered for rent." It was held that he had waived his specific 
lien, and that the bankrupt would be allowed the homestead as against 
the judgment. In re Lumpkin, ,2 Hughes, 175; 15 Fed. Gas. 1110. 



88 The Bankruptcy Law. 

The purchaser of property set apart as a homestead under the laws 
of Virginia, and sold by the husband, the wife not concurring, will be 
required to relinquish it, and a summary petition is the proper pro- 
ceeding for that purpose. In re Smith et al., 2 Hughes, 307; 22 Fed. Cas. 
392.. 

The homestead exemption allowed by the laws of Virginia cannot be 
set apart out of partnership effects. Ibid. 

Chief Justice Waite held that a bankrupt might waive his homestead 
exemption in a promissory note, under the provisions of the Constitution 
and laws of Virginia. In re Solomon, 2 Hughes, 164; 22 Fed. Cas. 785. 

Personal Property. 

A man without wife or child may be the " head of a family," under 
a state law relating to exemptions. In re Cobb, 1 N. B. R. 414; 5 Fed. 
Cas. 1123. 

A court of bankruptcy loses jurisdiction over property that has been 
set apart by the assignees as exempt, if no exceptions are taken at the 
time to the action of the assignees. In re Fetherston, 5 Chi. Leg. News, 
198; 8 Fed. Cas. 1174. 

Household furniture of the bankrupt had been attached and sold by 
order of the court, pendente lite. Proceedings in bankruptcy having been 
commenced within four months thereafter, the attachment was dissolved, 
and the proceeds of the sale paid to the assignee. The court held that 
the bankrupt was entitled to the money received from the sale as prop- 
erty exempt by the Bankrupt Act of 1867. In re Ellis, 1 N. B. R. 555; 
8 Fed. Cas. 549. 

A mortgagee of chattels cannot claim the exemption of property cov- 
ered by the mortgage as against the assignee in bankruptcy, when it 
is not claimed by the bankrupt mortgagor. Edmondson v. Hyde, 2 Saw. 
205; 8 Fed. Cas. 324. 

Construing the Act of 1867 (section 5045, R. S.), the court held that an 
assignee in bankruptcy cannot set apart money to the bankrupt, unless 
it Is the proceeds of property specifically exempt where the family is 
absolutely destitute. In re Tucker, 24 Fed. Cas. 264. 

In the case cited, Judge Woods upheld the constitutionality of the 
clause in the Act of 1867, as amended March 3, 1873, giving the bank- 
rupt the benefit of certain exemptions. In re Smith, 2 Woods, 458; 22 
Fed. Cas. 413. 

Held, under the Act of 1867, that money might be allowed to the bank- 
rupt for the temporary support of his family when the circumstances 
required it; but that real estate could not be set apart as exempt prop- 
erty under the head of " articles or necessaries." In re Thornton 2 N 
B. R. 189; 23 Fed. Cas. 1144. 

An application for an exemption made to the assignee in bankruptcy 
under the Act of 1867 (section 14), and denied by the assignee, was re- 
viewed by the district judge on an exception to a decision of the as- 
signee. In re Thiell, 4 Biss. 241; 23 Fed. Cas. 917. 



Bankrupts. 89 

A court of bankruptcy has no jurisdiction to defend exempt property, 
after it has been designated and set apart, against adverse claims. 
Jeferies v. Bartlett, 20 Fed. Rep. 40C. 

Where a partnership sold Its property and divided the proceeds a 
month before the filing of a petition in banlvruptcy, and one partner 
purchased property exempt under the laws of the state, it xms held 
that it must be deemed partnership assets. In re Melvin et al., 17 N. 
B. R. 543; 16 Fed. Cas. 1338. 

Where the question was raised whether the banlirupt liad made a full 
disclosure of his property, the court refused to allow his exemptions 
under section 1-4 of the Act of 1867, until he had passed his final examina- 
tion. In re Mastbaum. 16 Fed. Oas. 1080. 

A banlirupt must apply for his exemption previous to obtaining his 
discharge. In re Kean et al., 2 Hughes, 322; 14 Fed. Cas. 157. 

The court held that the banlirupt was entitled to the exemption of 
the articles specified In section 14 of the Act of 1867 (section 5045, R. S.), 
notwithstanding they had been talcen under an execution prior to the 
commencement of the proceedings. In re Martin, 2 Hughes, 418; 16 
Fed. Cas. 880. 

The proper proceeding by a bankrupt who feels aggrieved by the 
action of the assignee in setting apart his exempt property was held 
to be to except to the order of the assignee, and that the question be 
certified to the court. In re Pry or, 4 Biss. 262; 20 Fed. Cas. 28. 

An assignee need not designate property upon which there is no liep 
in setting apart the exemptions of the bankrupt. In re Preston, 6 N. 
B. R. 545; 19 Fed. Cas. 1291. 

Where an assignee moves to have an attachment dissolved as to prop- 
erty that has already been set apart as exempt, he is personally liable 
for the costs of the proceeding. In re Preston, 6 N. B. B. 545; 19 Fed. 
Cas. 1291. 

The fact that a bankrupt had made a conveyance of property in viola- 
tion of the Bankrupt Act does not deprive him of a lawful exemption 
out of the property. Penny v. Taylor, 10 N. B. R. 200; 19 Fed. Cas. 194. 

The bankrupt's household furniture had been seized and sold under 
execution and distress for rent. The court held that the assignee could 
not pay him out of the funds in his hands a sum of money representing 
his lawful exemptions. In re Lawson, 2 N. B. B. 54; 15 Fed. Cas. 87. 

A debtor had made an assignment of all his property for the benefit 
of preferred creditors. Proceedings having been commenced in bank- 
ruptcy, the assignee brought an action to recover such property, and the 
court held that the value of the property which was exempt must be 
deducted, and judgment entered only for the balance. Grow v. Ballard 
et al., 2 N. B. R. 194; 11 Fed. Cas. 88. 

Held, that money could not be set over to the bankrupt under the 
words " articles and necessaries " in section 14 of the Act of 1867, unless 
It was the proceeds of specific things which ought to have been set 
apart. In re Welch, 5 Be£ 230; 29 Fed. Cas. 605. 



90 The Bankeuptcy Law. 

Watches, breast-pins, guns, pistols, fishing tackle, and paintings were 
held not to be " necessaries," within the contemplation of the Act of 1841. 
In re Ludlow, 1 N. Y. Leg. Obs. 322; 15 Fed. Gas. 1079 (1843). 

Under the circumstances of the case, the assignee was allowed to set 
apart a sum of money to the bankrupts as " necessaries," under section 
14 of the Act of 1867. In re Hay et al., 2 Low. 180; 11 Fed. Gas. 887. 

Where the owner of exempt personal property mortgages it, he waives 
the exemption as against the mortgagee, but not as against the assignee 
in bankruptcy, if there should be a surplus after the payment of the 
mortgaged debt. In re Jones, 2 Dill. 343; 13 Fed. Gas. 931. 

The filing of a petition In bankruptcy was held to be an election to 
take the exemption in force in 1864 according to the terms of the Act 
of 1867, notwithstanding a later law of the state made a more liberal 
exemption. In re Askew, 3 N. B. R. 575; 2 Fed. Gas. 29. 

Property of the bankrupt which is exempt under the bankrupt law, 
as well as the law of the state, cannot be sold after the filing of his 
petition in bankruptcy, although it was levied upon before. In re Griffin, 
2 N. B. R. 254; 11 Fed. Gas. 5. 

In making out a list of property to be set over to the bankrupt as 
exempt, the value of each article should be stated so as to show that the 
aggregate does not exceed the limitations of the act. In re Graham, 2 
Biss. 449; 10 Fed. Gas. 914. 

In setting apart to a bankrupt property that is exempt, but upon 
which there is a lien for alimony, it should be stated in the order that 
it does not prejudice the wife's rights. In re Garrett, 2 Hughes, 235; 10 
Fed. Gas. 47. 

Where a bankrupt makes a sale in fravid of his creditors, it is good 
as against him; and it follows that he cannot claim such property as 
exempt after it had been recovered in a suit by the assignee. In re 
Graham, 2 Biss. 449; 10 Fed. Gas. 914. 

In adopting the exemption laws of the states, respectively, congress 
cannot abrogate any of the conditions or limitations contained in such 
laws. In re Duerson, 13 N. B. R. 183; 7 Fed. Gas. 1166. 

Under the Act of 1867 where the assignee had made an authorized 
exemption of personal property, creditors were required to except under 
general order 19; but as to real estate no exception was necessary except 
to the account of the assignee, as the title to the real estate, remained 
in the assignee notwithstanding his action. In re Gainy, 2 N. B. R. 525; 
9 Fed. Gas. 1065. 

Under the Act of 1867, as amended, the law of the domicile as it 
existed in 1871, fixed the bankrupt's exemptions, notwithstanding they 
were subsequently reduced by the Gonstitution and laws of the state. 
In re Gohen, 3 Dill. 295; 6 Fed. Gas. 13. 

The constitutionality of the amendment of 1S73 to the Act of 1867, 
which increases exemptions, is upheld in its operation on debts con- 
tracted prior to the passage of the act, liens by judgment, etc., in In re 
Jordan, 8 N. B. R. 180; 13 Fed. Gas. 1079, and 10 N. B. R. 427; 13 Fed. 
Gas. 1082. 



Bankrupts. 91 

The Constitution of Arkansas adopted in 1868, provided that " The per- 
sonal property of any resident of this state to the value of two thousand 
dollars, to be selected by such resident, shall be exempted from sale on 
execution," etc.; also that "All laws of this state not in conflict with 
this Constitution shall remain in full force until otherwise provided by 
the general assembly, or until they shall expire by their own limitation." 
At that time there was a statute in force maliing liberal exemptions of 
personal property. Judge Dillon held that the constitutional exemption 
was exclusive, and a bankrupt could only claim $2,000 and could not 
claim any additional exemption under the law of Arkansas or under 
section 14 of the Bankruptcy Act of 1867, as amended by the Act of 
June 8, 1872. In re Hezekiah, 2 Dill. 551; 12 Fed. Cas. 92. 

A bankrupt Is not entitled to an exemption of the property of the firm 
of which he was a member. In re Tonne, 13 N. B. R. 170; 24 Fed. Cas. 
51. So held in Arkansas under the Act of 1867 and the Constitution of 
that state adopted In 1868. In re Handlin et al., 3 Dill. 290; 11 Fed. Cas. 
421. Also in Pennsylvania construing the law of the state and the Baulv- 
rupt Act of 1867. In re Hafer et al., 1 N. B. R. 547; 11 Fed. Cas. 152. 
Judge Sawyer rendered a decision to the same effect putting it upon the 
ground that the assets of a partnership are not " property of the part- 
ners," within the meaning of the exemption laws. In re C'orbett, 5 Saw. 
206; 6 Fed. Cas. 528. Judge Erskine quoted, with approval, the language 
of Judge Dillon as follows: "While the adjudged cases relating to the 
question under consideration are not uniform, a careful examina- 
tion of all of them justifies me in saying that they are quite decisively 
against the proposition that individual exemptions can be allowed out 
of the partnership estate at the expense of the joint creditors." In re 
Stewart et al., 13 N. B. R. 295; 23 Fed. Oas. 51. But see the following 
cases: 

When a state law allows money exemption, such exemption may be 
allowed to the individual partners out of the partnership assets in 
bankruptcy. In re Young, 3 N. B. R. 440; 30 Fed. Cas. 835 (1869). 

Held, that when the individual estate of a bankrupt was sufiicient to 
furnish the exemption allowed by the state laws It should be subject 
thereto; but if not, the debtor could have his exemptions allowed out of 
the assets of the firm of which he was a member. In re Richardson et 
al., 1 N. B. R. 114; 20 Fed. Cas. 607. 

An exemption can only be allowed to a partner out of the surplus of 
the partnership effects after a payment of creditors. In re Price et al., 6 
N. B. R. 400; 19 Fed. Oas. 1314. 

Nothing can be set apart to a firm as exempt property, because it 
ceased to exist as a firm upon the adjudication in bankruptcy. In re 
Blodgett et al., 10 N. B. R. 145; 3 Fed. Cas. 721. 

Under the laws of Michigan, the individual members of a firm are not 
entitled to a separate exemption of " tools, implements, materials, stock, 
* * * not to exceed in value two hundred and fifty dollars." In re 
Blodgett et al., 10 N.. B. R. 145; 3 Fed. Cas. 721; In re Boothroyd et al., 
14 N. B. B. 223; 3 Fed. Cas. 892. 



92 The Bankeuptcy Law. 

An exemption allowed by the laws of the state attaches to a partner 
who has bought out his copartner, even against the creditors of the firm. 
In re Bjornstad, 9 Biss. 13; 3 Fed. Cas. 489. 

The individual members of a firm can claim no exemptions from its 
assets until all the partnership debts are paid. In re Oroft et al., 8 Biss. 
188; 6 Fed. Cas. 838. 

It was decided under the laws of Colorado, that a merchant might 
«laim the exemption of a horse, but not a buggy, and that he was not 
entitled to tlio exemption of .$200 worth of goods as stock in trade. In 
re Peabody, 16 N. B. R. 243; 19 Fed. Cas. 35. 

The laws of Georgia exempt property of the value of ?1,000 in specie. 
The bankrupt set apart and claimed certain goods as exempt, but the 
assignee sold the goods with others, and afterward paid to the bank- 
rupt $1,000 out of the proceeds. Held, that the bankrupt was only on- 
titled to the proceeds of the specific goods set apart by him. In re 
Friend, 3 Woods, 383; 7 Fed. Cas. 821. 

An unmarried man who contributes to the support of a mother and 
sister living in another town, is not entitled to the exemption allowed 
the " head of a family " by the laws of Georgia. Jones v. Gray, 3 Woods, 
494; 13 Fed. Cas. 956. 

By the laws of Kansas, a merchant tailor who cuts and fits garments 
is entitled to an exemption to the value of $400. When the exemption 
was claimed before the sale of the goods by the assignee, it constituted 
a lien. against the proceeds of the goods while in the hands of the court. 
In re Jones, 2 Dill. 343; 13 Fed. Cas. 031. 

The laws of Maine exempt " all produce of farmers " until harvested. 
Under this provision it was held that growing crops were exempted 
to a bankrupt, and that he might continue to occupy the farm until 
the crops were harvested, on paying rent therefor to the assignee. It 
was also held that the effect of the adjudication in bankruptcy was the 
same as a voluntary deed of conveyance to the assignee with a reserva- 
tion of the crops. In re Hussey, 2 Hask. 244; 12 Fed. Cas. 1052. 

The legislature of North Carolina repealed the statutory provisions and 
restored the common-law right of dower. Subsequently H. filed a peti- 
tion in bankruptcy. After the issuance of the warrant, he died, leaving 
a widow. It was held that the widow was entitled to dower in the real 
■estate of her deceased husband. The legislature attempted to create ad- 
ditional exemptions to those theretofore allowed by law. Such exemp- 
tions are void as to creditors whose debts were contracted previous to 
the passage of the act. The personal property exempted by the Act of 
1867 upon the death of the husband passes to his legal representatives. 
The widow is not entitled to it, neither does it go to the assignee in 
bankruptcy. In re Hester, 5 N. B. R. 285; 12 Fed. Oas. 68. 

It was held under the laws of North Carolina that the wife of a bank- 
rupt could not claim dower out of lands owned by him at the commence- 
ment of proceedings, in the lifetime of the husband. Kelly v. Strange, 
3 N. B. R. 8; 14 Fed. Cas. 273. 



Bankeupts. 93 

Held, under the Act of 1867, that the provisions of the Constitution 
of North Carolina respecting exemptions applied to contracts existing 
before the adoption of the Constitution as well as those made after- 
ward. In re Vogler, 2 Hughes, 207; 28 Fed. Gas. 1248. • 

It was held in New York under the Act of 1841, that articles of 
jewelry were not exempt as wearing apparel; also that the wife of a 
bankrupt could retain articles of jewelry belonging to her before mar- 
riage, and such as had been presented to her afterward, if they were 
suitable to her circumstances in life, which was held to be a question 
of fact. In re Kasson, 4 Law Rep. 489; 14 Fed. Gas. 138 (1842). 

The exemption in the laws of Oregon of certain implements to one 
who carries on a " trade, occupation or profession," was held not to apply 
to a contractor. In re Whetmore, Deady, 585; 29 Fed. Gas. 921. 

Under the laws of Pennsylvania, an expectant interest may be set 
apart for the use of the bankrupt, provided its present value does not 
exceed $300. In re Bennett, 2 N. B. E, 181; 3 Fed. Gas. 211. 

Under section 14 of the Act of 1867, a bankrupt could claim as exempt 
furniture and other articles to the value of $500. Under the laws of 
Pennsylvania, he could claim property of the value of $300; but such 
exemption could not include the same kinds of property as were claimed 
under the Bankrupt Act. It was further held that the state exemption 
must be governed by the amount allowed and the mode designated by 
the law of the state. In re Feely, 3 N. B. R. 66; 8 Fed. Gas. 1123. 

The household of an unmarried man consisted of an adopted son, a 
housekeeper and servants. This was held not to" make him the " head of 
a family " so as to entitle him to the exemption under the Constitution 
of South Carolina. In re Lambson, 2 Hughes, 233; 14 Fed. Gas. 1047. 

Held, that the law of Texas, respecting certain exemptions (Laws 1874, 
p. 55), applied only to rural, and not urban landlords. In re Robinson, 
20 Fed. Oas. 983. 

Referring to an exemption in the Act of 1867, Judge Hammond said: 
" Guided by these humane and liberal principles of construction, I should 
say that to a commercial man a plain and not extravagantly costly 
watch, such as this bankrupt owned, is, in the quaint language of the 
Vermont statute, ' necessary for upholding life.' " In re Steele, 2 Flip. 
324; 22 Fed. Cas. 1202. 

Under the law of Virginia, the court allowed real estate to be set apart 
as a portion of the bankrupt's exemption where it would not injure the 
sale of other real estate, or Impair the interest of creditors. In re 
Edward, 2 N. B. R. 349; 8 Fed. Gas. 343. 

Property that was exempt under the laws of Wisconsin, where the 
bankrupt resided, was in the possession of an officer in Illinois under a 
writ of attachment. Held, that it was the duty of the court of bank- 
ruptcy to protect the exemption as it existed in the former state, with- 
out reference to the laws of Illinois. In re Stevens, 2 Biss. 373; 23 Fed. 
Oas. 2. 

Merchants are entitled to the benefit of the provisions of the laws 
of Wisconsin which exempt " the tools and Implements or stock in 



94 The Bankbuptct Law. 

trade of any mechanic, or other person, used or kept for the purpose of 
carrying on his trade or business not to exceed two hundred dollars in 
value." In re Bjornstad, 9 Biss. 13; 3 Fed. Cas. 489. 

The laws of Wisconsin exempt " the tools and implements of stock in 
trade of any mechanic, miner or other person used and kept for the 
purpose of carrying on his trade or business not exceeding two hundred 
dollars in value." It was held that an article which a merchant buys 
merely for the purpose of exchanging for money, or other valuable 
property, or a watch bought by a jeweler for the purpose of selling, did 
not come within the exemption. Ex parte Robinson et al., 7 Biss. 125; 
20 Fed. Cas. 963. 

The laws of Wisconsin exempted " tools and implements, or stock 
in trade of any mechanic, miner, or other person used or kept for the 
purpose of carrying on his trade or business, not exceeding two hundred 
dollars in value." It was held under the Act of 1867 that the individual 
members of a mercantile firm could not claim $200 each out of the part- 
nership stock. In re Hughes et al., 8 Biss. 107; 12 Fed. Cas. 832; 
[For wife's right of dower, see § 8.] 

Duties of Bankrupts. 

§ 7. Duties of Bankrupts. — (a.) The bankrupts 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 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 immediately 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 involuntary bank- 
rupt, 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 



Bankeupts. ■ 95 

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 con- 
cerning the conducting 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 administration and settlement of his estate; but no testimony 
given by him shall 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 bank- 
rupt 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. 

Preparation and Amendment of Schedules. 

A bankrupt Is obliged to take up on his schedules partnership prop- 
erty as well as his separate estate, but he need not include an action in 
tort. In re Brick, 4 Fed. Rep. 804. 

The bankrupt conducted a saloon under an arrangement with the 
owner by which he received one-half of the net profits for his services. 
Held, that he was not bound to take this interest upon his schedules. In 
re Beardsley, 1 N. B. B. 457; 2 Fed. Cas. 1176. 

The offense of omitting property from a bankrupt's schedules, de- 
fined In the Act of 1867, was held to be complete when the false schedule 
was filed. United States v. Clark, 1 Low. 402; 35 Fed. Cas. 446. 

A petitioner is not obliged to enter upon his schedule of property an 
interest which he has in the net profits of a firm as partial compensa- 
tion for his services. In re Brown, 5 Law Rep. 121; 4 Fed. Oas. 332 
(1842). 

A bankrupt is not obliged to enter upon his schedule of liabilities a 
contingent liability as stockholder in a corporation that has suspended, 
where it is not in proof that it will not be able to pay its debts without 
resorting to the stockholders. In re Greenebaum et al., 1 Ohl. L. J. 599; 
10 Fed. Cas. 1156. 

A bankrupt who omitted certain items from his schedule upon the 
advice of his counsel was held not to be guilty of perjury under the 



96 The Bankeuptcy Law. 

Act of 1841. United States v. Conner, 3 McLean, 573; 25 Fed. Cas. 595 
(1842). 

A conveyance made to a bankrupt had been impeached as fraudulent 
In a suit in a state court, and a receiver had been appointed to take 
charge of the property in controversy. Held, that the omission of the 
property so held by the receiver from the schedules of the bankrupt wns 
not a suflBcient ground for refusing a discharge. In re Freeman, 4 Ben. 
245; 9 Fed. Cas. 750. 

The bankrupt's 'property had been sold under execution, and purchased 
by his wife with her separate funds. It was hold that he was not 
obliged to enter the property on his schedules. In re Pomeroy, 2 N- 
B. R. 14; 19 Fed. Cas. 956. 

The bankrupt omitted from his schedule of liabilities certain debts 
that were barred by the statute of limitations of the state where the 
proceedings were commenced, but might possibly be enforced under the 
laws of another state. The court held that they should have been in- 
cluded. In re Perry, 1 N. B. R. 220; 19 Fed. Cas. 263. 

Neither a judgment nor the levy of an execution divests a bank- 
rupt of his property, and he is bound to take up the property on which 
such a levy was made on his schedule. In re Lady Bryan Min. Co., 6 N. 
B. R. 252; 14 Fed. Cas. 928. 

Judge Deady, of the district court of Oregon, decided that a willful 
omission by a bankrupt of a debt due by him is sufHcient ground for 
refusing a discharge; but did not decide whether any creditor but the 
one whose debt was omitted had a right to object to the discharge. 
In re Kallish, Deady, 575; 14 Fed. Cas. 9S. 

The bankrupt entered certain property on his schedule as exempt. 
The court held that it was the duty of the assignee to correct or dis- 
regard to entry, and that it did not affect the truth of the schedule. 
In re Whetmore, Deady, 585; 29 Fed. Cas. 921. 

A bankrupt having property in his possession and treating it as his 
own, who omits it from his schedule and does not turn it over to his 
assignee, is chargeable with concealment, and it is no answer to state 
that it really belongs to his assignees by virtue of a previous assign- 
ment under the insolvent laws of the state. In re Beal, 1 Low. 325; 2 
Fed. Cas. 1107. 

Before the passage of the Act of 1841, a debtor, with many circum- 
stances of fraud, had bought a house and taken the title in his mother's 
name, and subsequently confessed judgment to his mother, which was 
partly satisfied by the sale of his household furniture, etc. Held, that 
he was not obliged to take up' the house on his schedule of assets, and 
that he could properly insert his mother on the schedule of liabilities 
for the deficiency in her judgment. Ex parte Robertson, 1 N. Y. Leg. 
Obs. 20; 20 Fed. Cas. 938 (1842). 

It was held under the Act of 1841, that the inventory or schedule must 
designate property so that the assignee can find it out and identify it. 
The court said: " This is not a mere matter of form, but it is made by the 
law a condition that he should do so, and he can no more obtain his 



Bankrupts. • gy 

discharge without a proper Inventory, than he could without entering his 
petition." In re Prisbee, 4 Law Rep. 483; & Fed. Cas. 959. 

A schedule of the bankrupt's personal estate that fails to set forth 
the separate items is defective, but can be amended. So as to a state- 
ment of liabilities. In re Hill, 1 Ben. 321; 12 Fed. Cas. 144. 

A description of real estate in a schedule is sufficient when it gives 
the county and town in which it is situated, and the name of the banli- 
rupt's grantor. In re Dodge, 7 Fed. Cas. 785 (1842). 

Under the rule of court requiring schedules to be written plainly 
and without abbreviations, the use of ditto marks (") to bring down a 
word from the preceding line is forbidden. In re Orne, 1 N. B. R. 79; 18 
Fed. Cas. 823 (1867). 

It was questioned by Judge Hall, whether a schedule which gave 
the residences of creditors in abbreviations, as N. Y. for New York, 
could be certified, but he refused to decide the question on an ex parte 
hearing. Anon., 2 N. B. R. 141; 1 Fed. Cas. 1015. 

A creditor will not be heard to object to omissions in the schedules 
of a petitioner that are not specifically pointed out. In re Plimpton, 4 
Law Rep. 488; 19 Fed. Gas. 874. 

Held, that no creditor had a right to oppose an application of the 
bankrupt to amend his schedules so as to include a lease which had 
been omitted. In re Watts, 3 Ben. 166; 29 Fed. Cas. 433. 

Where the bankrupt omitted from his schedule certain debts which he 
claimed were barred by the statute of limitations, and the creditors had 
no notice of the proceedings in bankruptcy, a discharge was refused, and 
the case referred back to a register for further proceedings. In re Cush- 
man, 7 Ben. 482; 6 Fed. Cas. 1066. 

Creditors have no right to object to an amendment by the bankrupt 
of his schedule of creditors for the purpose of Inserting a name acci- 
dentaly omitted, and no notice is required. In re Hill, 5 Fed. Rep. 448. 

After a hearing on specifications in opposition to the discharge of a 
bankrupt, he was allowed to amend his schedule of assets by supplying 
an omission. In re Preston, 3 N. B. R. 103; 19 Fed. Cas. 1289. 

It was held to be competent under the Act of 1867, for a register to 
allow amendments to the schedules without notice. In re Heller, 5 N. B. 
R. 46; 11 Fed. Cas. 1052. 

A schedule of creditors cannot be corrected on a motion pending be- 
fore the register to record a resolution of composition, so as to show 
that the required number had joined. The correction can only be made 
at a meeting of creditors. Confirmation of the composition was thereupon 
denied with leave to renew. In re Asten, 8 Ben. 350; 2 Fed. Cas. 69. 

A bankrupt who had omitted an estate in expectancy from his schedule 
was denied a discharge, but allowed to amend and renew his applica- 
tion. In re Oonnell, 3 N. B. R. 443; 6 Fed. Cas. 304. 

Errors in the making of schedules may be cured by amendments on 
the payment of costs, when they are due to inadvertence only. In re 
Frlsbee, 4 Law Rep. 483; 9 Fed. Cas. 959. 



98 The Bankbuptct Law. 

The court said that it would be a very dangerous practice to permit 
a voluntary bankrupt to make material changes in liis schedules after 
the close of business at the first meeting of creditors. In re Morganthal, 
1 N. B. R. 402; 17 Fed. Oas. 769. 

Judge Blatchford held that under the Act of 1867, and the rules of the 
supreme court, the register and the district court had co-ordinate power 
to allow a petitioner in bankruptcy to amend his schedules, and that the 
amendment should be filed with the clerk. In re Morford, Ben. 264; 17 
Fed. Oas. 745. 

A bankrupt was allowed to make additions to his schedules after 
the first meeting of creditors, but upon condition that there should be 
a new warrant issued, embracing as well the names of creditors already 
notified as of those named in the amendment, notifying them to meet 
before the register on a day to be named therein and prove their debts. 
In re Radchffe, 1 N. B. R. 400; 20 Fed. Gas. 300. 

Shields, a debtor, to avoid forced sales, under execution, conveyed 
to his son-in-law, a bankrupt, certain lands. The bankrupt received no 
deed, but himself made conveyance of the land which had been deeded 
to himself, the consideration for the land being paid to Shields, the 
original grantor. It was held by the bankrupt court that, although the 
creditors of Shields might have attacked the deed as fraudulent, yet as 
between Shields and the bankrupt the deed was valid to vest the title 
in the bankrupt, which passed to his assignee, and not having been 
included in his schedules, the bankrupt had, therefore, concealed his 
property. In re O'Bannon, 18 Fed. Cas. 516; 2 N. B. R. 15 (1868). 

Bights and Duties. 

A solvent debtor has the right to pay any or all his debts, notwith- 
standing the pendency of bankruptcy proceedings against him. In re 
Oregon Bulletin Printing Pub. Co., 13 N. B. B. 506; 18 Fed. Oas. 773 
(1876). 

After trustees for creditors have settled their trust and been dis- 
charged, and the bankrupt has been discharged, a su'-plus of assets ap- 
pearing, the bankrupt is entitled to it. Mayer v. Gourden, 26 Fed. 
Rep. 742. 

The right of a bankrupt to redeem land from a sale for taxes is not 
terminated until the appointment of an assignee. Hampton v. Rouse, 
22 Wall. 263. 

Before the appointment of an assignee, the bankrupt is trustee of 
his estate, and as such can waive demand and notice upon a note of 
which he was an indorser. Ex parte Tremont National Bank, 2 Low. 
409; 24 Fed. Cas. 184. 

Creditors may forfeit their rights against each other by neglect to 
prove their claims; but as long as there are creditors unpaid, the bank- 
rupt has no right to demand any part of the property. In re Wright, 
6 Bis. 317; 30 Fed. Oas. 661 (1875); In re Wright, 2 N. B. B. 41; 30 Fed. 
Cas. 663 (1868). 



Bankrupts. 99 

Until the appointment of an assignee, a banlcrupt has a right to pursue 
all proper legal measures for the protection of his interests. Myers v. 
Oallaghan et al., 5 Fed. Rep. 726. 

Any agreement signed by a bankrupt after the commencement of pro- 
ceedings is a nullity so far as the estate is concerned. In re Anderson, 
2 Hughes, 378; 1 Fed. Oas. 831. 

A bankrupt who has knowledge of the place where his books are 
deposited, and denies their existence, was held chargeable with a con- 
cealment of his books, under section 29 of the Act of 1867. In re Ham- 
mond et al., 1 Low. 381; 11 Fed. Oas. 380. 

It Is improper for a bankrupt to sell any of his property after filing 
his petition, even to raise money to defray the costs of the proceed- 
ings. In re Thompson, 13 N. B. E. 300; 28 Fed. Oas. 1021. 

A bankrupt was committed and ordered to be detained until he should 
pay to the assignee the amount returned on his schedule of assets as 
" cash on hand." In re Dresser, 3 N. B. R. 557; 7 Fed. Gas. 1069. 

Two days before the filing of his petition, the bankrupt had procured 
certain money from a mortgage. He was ordered to pay it to the as- 
signee, but allowed to retain the amount paid his attorney, and a sum 
necessary for the temporary support of himself and family as provided 
by the Act of 1867, but not the expenses of procuring his discharge. In 
re Thompson, 13 N. B. R. 300; 23 Fed. Gas. 1021. 

Judge Blatchford refused to punish for contempt, a bankrupt who had 
collected money after the filing of the petition, and spent part of it, 
but who had afterward turned over all his assets to the assignee, hold- 
ing that while he was guilty of contempt, the estate had lost nothing, 
because payments made to a bankrupt by debtors after the filing of 
the petition were invalid against the assignee. In re Hayden, 7 N. B. 
R. 192; 11 Fed. Oas. 897. 

A summary proceeding, and not a separate action, is the proper remedy 
to compel a bankrupt to deliver property unlawfully withheld by him. 
In re Thompson, 13 N. B. R. 300; 23 Fed. Oas. 1021. 

[See notes to §70.] 

Death ob Insanity. 

§ 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 children shall be entitled to all rights of dower 
and allowance fixed by the laws of the State of the bankrupt's residence. 

An assignment of the husband's estate under the national Bankrupt 
Act and a sale thereof by the assignee in bankruptcy in pursuance of an 
order of the court does not bar the wife's right of dower. Porter v. 
Lazear, 109 U. S. 84; In re Angler, 10 Amer. Law Reg. 190; 1 Fed. Oas. 914. 



100 The Bankbuptcy Law. 

An assignment and sale of the husband's real estate in banlsruptcy pro- 
ceedings did not bar the wife's right of dower in sucli property. Porter t. 
Lazear, 109 U. S. 84. 

The supreme court of Indiana having decided that a deed to an as- 
signee in banliruptcy is a judicial sale, the court of bankruptcy held that 
a wife, upon the bankruptcy of her husband, becomes the owner of one- 
third of his equitable interest in land. Warford v. Noble et al., 2 Fed. 
Kep. 202. 

Under the laws of Indiana, as construed by the courts of that state, a 
wife's inchoate right of dower becomes absolute upon the sale of her 
husband's real estate on execution. It was held that an adjudication in 
bankruptcy had the same effect; and it was further held that this rule 
does not apply to land in which the husband has only an equitable title, 
and that there can be no dower in such land. Warford v. Noble et al., 19 
Am. Law Reg. 44; 29 Fed. Oas. 227. 

The court held that an insane person cannot commit an act of bank- 
ruptcy, but that a lunatic may be adjudged a bankrupt for acts previously 
done against the opposition of his guardian. In re Weitzel, 7 Biss. 289; 
29 Fed. Cas. 604. 

While an insane person cannot commit an act of bankruptcy, he may 
be adjudged a bankrupt after he has become a lunatic, for an act com- 
mitted while sane; but Judge Lowell expressed doubt as to whether a 
discharge could be given to an insane person. In re Pratt, 2 Low. 96; 
19 Fed. Cas. 1248. 

[The law in cases of death, under the Act of 1867, is stated in the 
following cases:] 

Proceedings in bankruptcy will be abated upon the death of the debtor 
between the service of the rule to show cause and the adjudication. 
Frazier et al. v. McDonald, 8 N. B. R. 237; 9 Fed. Cas. 737. 

The bankrupt died after adjudication, but before taking the oath re- 
quired by section 29 of the Act of 1867. The court held that a discharge 
could not be granted. In re Quinike, 2 Biss. 354; 20 Fed. Cas. 142. 

The bankrupt died a few months after filing his petition. Held, that 
he could not be discharged, as he had not taken the oath required by 
section 29 of the Act of 1867. In re Gimke, 4 N. B. R. 92; 11 Fed. Cas. 115. 

A discharge in bankruptcy cannot be adjudged when the bankrupt dies 
before making application for discharge as prescribed in section 29 of the 
Act of 1867. In re O'Farrell, 2 N. B. B. 484; 18 Fed. Oas. 601 (1869). 

[See notes to §§ 3 and 4.] 

Arrest. 

§ 9. Protection and Detention of Bankrupts. — (a.) A bankrupt 
shall be exempt from arrest upon ciyil process except in the foUowiag 
eases: 

(1.) When issued from a court of bankruptcy for contempt or dis- 
obedience of its lawful orders; 



Bankrupts. 101 

(2.) When issued from a State court having jurisdiction, and served 
within such State, upon a debt or claim from which liis 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 examina- 
tion, and that his departure will defeat the proceedings in bank- 
ruptcy, issue a warrant to the marshal, directing him to bring such 
bankrupt forthwith before the court for examination. 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 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. 

Under the Act of 1841, a petitioner in bankruptcy was privileged from 
arrest on civil process during the proceedings. U. S. v. Dobbins, 25 Fed. 
Cas. 876 (1842). 

A writ of habeas corpus was denied to a banlirupt who was under arrest 
on an execution issued on a judgment for tort. In re Whitehouse, 1 Low. 
429; 29 Fed. Cas. 1032. 

Judge Lowell held that section 26 of the Act of 1867 did not release the 
banlinipt from custody when he was already in arrest at the time his 
petition was filed. In re Walker, 1 Low. 222; 29 Fed. Cas. 1. 

The bankrupt having been imprisoned by proceedings under the law of 
a state to discover assets was released on habeas corpus by a United States 
court. Ex parte Taylor, 1 Hughes, 617; 23 Fed. Cas. 727. 

When a cause of action for a tort has been reduced to judgment, it is 
covered by a discharge in bankruptcy, and a banltrupt arrested upon such 
a judgment will be released by the court of bankruptcy, notwithstanding 
the state court had refused to do so. In re Wiggins, 2 Biss. 71; 29 Fed. 
Cas. 1156. 

A court of bankruptcy may order the release of a bankrupt held in 
custody by proceedings of arrest and bail under the state laws, and stay 
proceedings until the question of discharge is passed upon, and at the 
same time make a reference to determine whether the debts for which he 



102 The Bankruptcy Law. 

was arrested are such that they would be discharged by proceedings in 
bankruptcy. In re Jacoby, 1 N. B. R. 118; 13 Fed. Oas. 279. 

A bankrupt had given a bond for his appearance from time to time, 
but failed to appear and furnish schedules in obedience to an order of 
the court, and left the jurisdiction with assets exceeding the penalty of 
the bond. It was held that the obligee could recover in an action of debt, 
and that, under the circumstances, the judgment should be for the whole 
amount of the bond and interest. Marble v. Fulton et al., 1 Hask. 462; 
16 Fed. Cas. 695. 

A petition was filed in the court of bankruptcy for a writ of habeas 
corpus for the release of the bankrupt from arrest under the order of a 
state court. Judge Blatchford said: " I can only examine the affidavit 
of a plaintiff on vyhich the order of arrest was made. I have done so, and 
am satisfied that the state court must, on that affidavit, have beUeved 
that the debt in question vras created by the fraud of the bankrupt, or by 
their defalcation while acting in a fiduciary character, and must on that 
account have ordered the arrest. The writ must be discharged, and the 
prisoners be remanded to the custody of the sheriff." In re Valk, 3 Ben. 
431; 28 Fed. Cas. 873. 

The exemption of the bankrupt from arrest on civil process applies 
whether he is arrested before or after the commencement of proceedings 
in bankruptcy. In re Seymour, 1 N. B. R. 29; 1 Ben. 348 (1867). 

The object of a creditor in imprisoning a debtor on execution is to 
secure secret funds with which the debt may be paid. The Bankrupt 
Act divests the bankrupt debtor of all his property for the benefit of all 
creditors. A creditor may, therefore, be enjoined from enforcing his 
judgment by imprisonment. In re Winthrop, 5 Law Rep. 24; 30 Fed. Oas. 
375 (1842). 

Under the Act of 1867 the court refused to discharge the bankrupt from 
arrest on the gi-ound that the debt was created by fraud, for the reason 
that a discharge in bankruptcy would not affect such an indebtedness. 
In re Pettis, 2 N, B. R. 44; 19 Fed. Cas. 305. 

After adjudication, the bankrupt was arrested in a civil suit in a state 
court upon an affidavit stating that the suit was for a debt created by his 
defalcation while acting in a fiduciary capacity. In fact, and as appeared 
in the complaint, the suit was for the proceeds of goods consigned to 
him to sell on commission, which he had sold, but the proceeds of which 
he had not remitted. On an application to the court of bankruptcy to 
discharge him from arrest, the court held that it could only look at the 
affidavit on which the order of arrest was granted in the state court. In 
re Kimball, 2 Ben. 554; 14 Fed. Cas. 476. 

Certain creditors of the bankrupt caused his arrest by an order from 
a state court on the gi-ound that the debt had been fraudulently con- 
tracted. Thereafter they proved their claim in bankruptcy. The bank- 
rupt applied to the court to have the arrest vacated and further proceed- 
ings enjoined. The court held that as the debt was one that would not 
be discharged in bankruptcy, the order of arrest issued by the state court 



Bankrupts. 103 

could not be vacated; but as the debt was provable in bankruptcy, the 
proceedings of the creditor in the state court would be stayed pending 
the determination of the question of discharge. In re Migel, 2 N. B. E. 
481; 17 Fed. Cas. 279. 

[See notes to §§ 2 and 11.] 

EXTEADITION. 

§ 10. Extradition of Bankrupts. — (a.) Whenever a warrant for the 
apprehension 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 jurisdiction to another. 

The practice of the state in which the arrest is made must be observed 
in the preliminary examination of an alleged offender under the Bankrupt 
AiCt who is arrested in another district for extradition. U. S. v. Brawner, 
7 Fed. Rep. 86. 

Suits Bt and Agaikst Bankeupts. 

§ 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 pending 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 adjudica- 
tion, 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 com- 
menced 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. 

Stay of Proceedings, etc. 

An action on a debt which is provable, whether it could be covered by 
a discharge or not, will be stayed by the commencement of proceedings 
in bankruptcy, provided final judgment has not been entered. In re Van 
Buren, 19 N. B. R. 149; 28 Fed. Cas. 953. 



104 The Bankhuptcy Law. 

After discharge the bankruptcy court will not enjoin the prosecution 
of suits against the bankrupt in the state court. He must plead his dis- 
charge in the state court. Slayer v. Bank, 27 Fed. Rep. 591. 

Where there was a suit pending against the bankrupt at the time of the 
adjudication, it may be prosecuted against his assignee if the court of 
bankruptcy does not take steps to stay the proceedings. Norton v. 
Switzer, 93 U. S. 355. 

Creditors who had sued out writs of attachment against a debtor after- 
ward filed a petition in bankruptcy against him. It was held under the 
Law of 1841 that it was not necessary for the suits at law to be with- 
drawn until it was determined whether the petition could be sustained. 
Everett et al. y. Derby, 5 Law Rep. 225; 8 Fed. Gas. 897 (1842). 

An adjudication in bankruptcy will not bar the further prosecution in 
the bankrupt's name of a claim transferred more than four months be- 
fore the commencement of proceedings to one for whose benefit the suit 
was brought, where his assignee in bankruptcy consents thereto. 
Thatcher v. Rockwell, 105 U. S. 467. 

Where a levy has been made under an attachment by a state court 
before the commencement of proceedings in bankruptcy, and the assignee 
thereafter appointed permits the sale to be made, he cannot attack the 
purchaser's title in a collateral proceeding. Doe v. Childress, 21 Wall. 642. 

A bankrupt had obtained an injunction against certain creditors staying 
all suits and proceedings to collect certain debts. Thereupon the pending 
suit was discontinued, but later a new suit was brought for the recovery 
of the same debt. This was held to be a violation of the injunction. In 
re Schwarz, 14 Fed. Rep. 787. 

The adjudication in bankruptcy relates back to the filing of the petition 
and dissolves from that day an attachment previously levied and pending. 
Zeiber v. Hill, 1 Sawy. 268; 8 N. B. R. 239; 30 Fed. Cas. 917 (1870). 

Claimants to the property of the bankrupt living in other districts hav- 
ing asserted their rights in state courts, it was held that the assignee 
might defend his title in the state courts by filing a bill in the court of 
bankruptcy to have the same determined, and that the actions in the 
state courts be enjoined. In such a case, he cannot proceed by summary 
petition. In re Litchfield, 13 Fed. Rep. 863. 

Certain charges were heard in opposition to the discharge of the bank- 
rupt, and overruled, and a discharge granted. The same matters con- 
stituted the cause of action in a suit that the assignee in bankruptcy had 
brought in a state court. The defendants in the latter suit asked that the 
assignee be required to discontinue it, but the application was refused, 
the court saying: " It is more proper that they should be determined in 
the plenary suit brought, if raised therein, and by the tribunal in which 
the suit is brought ^vith the provisions for review which obtain in a suit 
between party and party." In re Penn et al., 5 Ben. 500; 19 Fed. Cas. 15.o. 

Held, under section 5118, R. S., that a special partner was not entitled 
to the stay of proceedings in an action brought against him on account 
of proceedings in bankruptcy against the firm and the general members. 
Abbendroth v. Van Dolsen, 131 U. S. 66. 



Bankrupts. 105 

In the case cited, the supreme court considered and determined under 
what circumstances the Bankrupt Act of 1867 did not prevent a state 
court from rendering judgment against a defendant on a verdict in an 
attachment suit so as to permit the plaintiff to proceed against the 
sureties. Hill v. Harding, 130 U. S. 699. 

The Act of 1867 (sections 5106, 5107, R. S.) does not permit a stay of 
proceedings subsequent to final judgment for the purpose of putting in 
motion the remedy of arrest which is reserved to a creditor. In re Whit- 
ing, 18 N. B. R. 563; 29 Fed. Cas. 1070. 

After the issuance of an injunction in banlcruptcy against the sale of 
property of the bankrupt in pursuance of a judgment of the state court, 
the order was modified so as to permit the sheriff to sell and pay the 
proceeds into the court of bankruptcy. It was held that the judgment 
creditors could not recover from the sheriff for his failure to pay the 
money to them upon their execution. O'Brien v. Weld et al., 92 U. S. 81. 

A certificate in bankruptcy may be pleaded in bar to further proceedings 
under an attachment suit commenced before the filing of the petition. In 
re Bellows, 3 Story, 428; 3 Fed. Oas. 138 (1844). 

When a bankrupt fails to obtain- his discharge, an attaching creditor 
who has been enjoined from further proceedings in his action may apply 
for the dissolution of the injunction. In re Bellows, 3 Story, 428; 3 Fed. 
Cas. 138 (1844). (The above case was reversed in Peck v. Jenness, 7 
How. 612, but not on the points here given.) 

The assignment of a cause of action for the purpose of giving juris- 
diction to a federal court is a fraud upon the court; but when the de- 
fendant fails to make objection, and judgment is entered, and the 
defendant subsequently declared a bankrupt, his assignee or creditors 
cannot complain of the fraud. Mattox v. Baker, 2 Fed. Rep. 455. 

A fraudulent vendee of the debtor cannot maintain a suit in trover 
against a sheriff who delivered to the assignee in bankruptcy property 
attached before the bankruptcy as that of the debtor; but the district 
court will not enjoin such suit upon the petition of the sheriff since he 
has an adequate defense at law. In re Evans, 1 Low. 525; 8 Fed. Cas. 
833. 

Injunctions had been granted by the court of bankruptcy against the 
sale of the bankrupt's property under judgments obtained in good faith. 
Upon a showing that the property would not realize any more upon a 
sale by the assignee than it would upon a sale by the sheriff, the court 
dissolved the injunction. In re Wilbur, 1 Ben. 527; 29 Fed. Oas. 1181. 

A plaintiff in a state court who is enjoined from proceeding against one 
debtor on account of bankruptcy may proceed against the other defend- 
ant. Penny v. Taylor, 10 N. B. R, 200; 19 Fed. Cas. 194. 

The comrt of bankruptcy cannot grant relief against a judgment entered 
against the bankrupt in any other court on a debt arising before adjudi- 
cation, when he failed to plead his discharge. In re Ferguson, 2 Hughes, 
286; 8 Fed. Oas. 1149. 



106 The Bankeuptct Law. 

The Act of 1867 (section 5106, R. S.) did not authorize the stay of 
orderly methods for the collection of taxes. In re Duryee, 2 Fed. Rep. 68. 

A debtor filed a petition in voluntary banliruptcy and a petition for 
composition at the same time, but objected to being adjudged a bankrupt. 
Held, that the debtor was in no position to resist, by injunction, proceed- 
ings by an attaching creditor. In re TlfCt, 18 N. B. R. 78; 2a Fed. Cas. 
1210. 

It is competent for a court of bankruptcy to authorize a creditor to 
proceed in the usual way to collect his claim, if that course seems to be 
for the best interests of the estate. In re McGilpon, 3 Biss. 144; 16 Fed. 
Oas. 107. 

In a plea of abatement to an action at law on the ground of the pend- 
ency of proceedings in bankruptcy,, all the jurisdictional facts must be 
set up. In re Balch, 3 McLean, 221; 2 Fed. Oas. 503 (1841). 

When a creditor is allowed by the court in bankruptcy to proceed with 
an action then pending, it is not necessary that the assignee should be 
made a party, and the judgment will be valid against him without it. 
In re Bonsfield & Poole M. Ck)., 17 N. B. R. 153; 3 Fed. Oas. 1016. 

The jurisdiction of the ordinary tribunals over suits against a bank- 
rupt is not impaired except as they may be controlled by the bankruptcy 
court to carry out the purposes of the act. In re Davis, 1 Saw. 260; 7 
Fed. Oas. 58. 

A creditor may prosecute a suit to judgment for the purpose of ascer- 
taining the amount due, but the judgment should disclose this purpose. 
In re Gallison et al., 2 Low. 72; 9 Fed. Oas. 1009. 

The jurisdiction of a state court in a suit in equity is not lost by the 
commencement of proceedings in bankruptcy more than four months after 
the commencement of the suit. David v. Friedlander, 104 U. S. 570. 

Certain judgment creditors of the bankrupt, after proving their debt, 
commenced a suit in a state court, setting up that certain property which 
stood in the name of the bankrupt's wife had been paid for by him in 
fraud of his creditors. The court of bankruptcy held that proceedings in 
such suit were stayed by section 21 of the Act of 1867, and that the 
creditors, by proving their debts, had waived their right of action on 
either the judgments or the original indebtedness. In re Meyers, 2 Ben. 
424; 17 Fed. Oas. 249. 

A decree had been obtained against the bankrupt in a state court, which 
operated as a lien upon his property. Held, that the plaintiff in that 
action could not proceed under a law of the state for the discovery of 
assets, and must move in the court of bankruptcy. Ex parte Taylor, 1 
Hughes, 617; 23 Fed. Cas. 727. 

A judgment from which an appeal has been taken was held not to be 
a final judgment within the meaning of section 21 of the Act of 1867. The 
prosecution of such a case is forbidden, and a motion to compel a banlt- 
rupt to furnish additional security on the appeal bond is within the con- 
templation of the inhibition. In re Metcalf et al., 2 Ben. 78; 17 Fed. 
Oas. 172. 



Bankhupts. 107 

While a vessel was In the hands of an assignee in bankruptcy, it was 
libelled to recover damages for a collision which occurred before adjudi- 
cation. The libellants were enjoined from attempting to hold the vessel; 
and it was held that their lien must be determined in the court of bank- 
ruptcy. In re People's Mail Steamship Co., a Ben. 226; 19 Fed. Oas. 211. 

In Georgia, where a mortgage is merely a security, the power of sale 
contained in such an instrument cannot be executed after an adjudication 
in bankruptcy against the mortgagor. Lockett v. Hill et al., 1 Woods, 552; 
15 Fed. Gas. 744. 

An attachment had been levied on the bankrupt's property within four 
months before the filing of the petition and after' the commencement of 
bankruptcy proceedings the property was sold. The purchaser filed a 
creditor's bill to set aside two previous conveyances. The court dismissed 
the bill with costs, holding that the attachment was dissolved by the 
commencement of proceedings. Hatfield v. MoUer et al., 4 Fed. Rep. 717. 

A judgment for a debt created by fraud was held not to be covered by 
a discharge under the provisions of secion 21 of the Act of 1867. In re 
Robinson, 6 Blatchf. 253; 20 Fed. Oas. 978. 

" A discharge In bankruptcy is valid, in the absence of fraud, in what- 
ever court of the United States a suit is brought, although it may not 
protect the defendant from a suit brought in a foreign jurisdiction, if 
he should be found therein." Ruiz v. Bickerman, 5 Fed. Rep. 790. 

A discharge in bankrupcy granted in the United States is a bar to 
proceedings on a debt contracted abroad unless the debtor, being a non- 
resident, comes to this country for the purpose of evading his debts by 
means of such discharge. Zaregas' Case, 4 Law Rep. 480; 30 Fed. Gas. 
916 (1842). 

A debt having been discharged by proceedings in bankruptcy can only 
be revived by a promise to pay," and such promise must be distinct and 
unequivocal. Allen v. Fergerson, 18 Wall. 1. 

A final discharge was held to terminate an injunction staying proceed- 
ings against the bankrupt in a state court until the question of final 
discharge should be determined, and no motion to dissolve the injunction 
is necessary. In re Thomas, 3 N. B. R. 38; 23 Fed. Gas. 932. 

The bankrupt court will allow a suit pending in a state court against 
the bankrupt to proceed to judgment; but on motion will stay execution 
if it appear that the judgment debt is such as may be discharged in bank- 
ruptcy. In re Rundle, 2 N. B. R. 113; 1 Chi. Leg. News, 30; 21 Fed. Cas. 
5 (1868). 

When a debtor is adjudged a bankrupt, all proceedings in the state 
court against him must stop if the subject-matter of the suit can be 
proven against his estate in bankruptcy, and no creditor can enforce a 
secured or unsecured debt (so provable in bankruptcy), in a state court 
except by permission of the district court. A district court has no juris- 
diction over a state court but has complete original jurisdiction of the 
bankrupt, of his assets and of all his creditors. In re Winn, 1 N. B. R. 
499; 30 Fed. Oas. 303 (1867). 



108 The Bankkuptct Law. 

Certain mortgaged premises of a bankrupt were worth less than half 
the amount of the mortgage which was given, in good faith, long before 
the baaliruptcy of the mortgagor. After the filing of the petition, the 
mortgagee commenced a suit in a state court to foreclose. The district 
court permitted the suit to proceed, and the circuit court, on a petition 
of review, affirmed the action of the court below. At the same time, the 
circuit court held that where the value of the property exceeds the amount 
secured by the mortgage, or the validity of the lien is in doubt, it Is proper 
for the banlirupt court to restrain the mortgagee from foreclosing. In re 
Iron Mountain Co., 9 Blatchf. 320; 18 Fed. Cas. 97 

After adjudication, mortgagees should be required to enforce their 
claims in the court of banliruptcy. They may be permitted, however, to 
proceed in a state court. In re Brinliman, 7 N. B. R. 421; 4 Fed. Cas. 145. 

It was held under the Act of 1841 that when a suit was brought in the 
name of the bankrupt after the appointment of an assignee, the defend- 
ant could plead the bankruptcy in abatement. Cook et al. v. Lansing, 3 
McLean, 571; 6 Fed. Cas. 412 (1847). 

An assignee in bankruptcy having voluntarily submitted to the juris- 
diction of a state court, it was held to be too late for him to object that 
the federal courts alone had jurisdiction after judgment had been ren- 
dered against him. Scott v. Kelly, 22 Wall. 57. 

When an assignee in bankruptcy appears in a suit brought in a state 
court, he is bouad by the decree, and cannot afterward assert his title in 
another court. David v. Friedlander, 104 TJ. S. 570. 

It was held that it is the duty of state courts to admit the assignee as 
a party, in all suits pending, in place of the bankrupt, on production of 
the appointment as assignee properly authenticated; also, that the bank- 
rupt may be enjoined by the bankruptcy court from any further inter- 
ference with such suits beyond furnishing serviceable information to the 
assignee. Sampson v. Burton, 4 N. B. R. 1; 21 Fed. Cas. 297 (1870); 5 N. 
B. R. 459; 21 Fed. Oas. 308 (1871). 

In a case where proceedings to foreclose a mortgage against the bank- 
rupt were commenced before adjudication, it was held that it was not 
necessary to make the mortgagor's assignee in bankruptcy a defendant, 
though such assignee might be made a party on his own petition for 
sufficient reasons. Oliver v. Cunningham et al., 6 Fed. Rep. 60. 

Before the filing of proceedings in bankruptcy in the district court of 
Pennsylvania, a suit had been commenced in Minnesota against one of 
the bankrupts to recover damages for breach of a contract. The court 
authorized the suit in Minnesota to proceed for the purpose of liquidating 
the claim, at the same time securing to the trustee a right to resist the 
claim there in the pending suit or by a proceeding in equity. In re Cooke 
et al., 6 Fed. Cas. 431. 

.Judge Ohoate expressed the opinion that an assignee is not bound by 
the allegations of the creditors' petition as to an act of bankruptcy. 
Linder v. Lewis et al., 10 Ben. 49; 15 Fed. Cas. 554. 

It was held that notwithstanding an attachment had been issued more 
than four months prior to the filing of the petition in bankruptcy, the 



Bankbupts. 109 

state court can, on the application of tlie banlirupt, stay proceedings 
against him on a provable debt to await a determination on the question 
of his discharge. Hill v. Harding, 107 U. S 631. 

An assignee in bankruptcy cannot voluntarily, or by service of process, 
become party to a suit in a state court affecting liens on the banlirupt's 
lands without the consent of the federal court. Price v. Price, 48 Fed. 
Rep. 823. 

The bankrupt having litigated five years in the state court, the bank- 
ruptcy court will not enjoin the execution of a decree of that court on the 
ground that the assignee In bankruptcy was made a party without leave 
of the federal court. Price v. Price, 48 Fed. Rep. 82S. 

[See notes to §2.] 

Limitation of Actions. 

A cause of action is not barred by the two years' limitation when It 
has been fraudulently concealed until within two years. Shainwald v. 
Davids, 69 Fed. Rep. 687. 

The statute of limitations under the Act of 1867 (section 5067, R. S.), 
begins to run from the time when the assignee could have discovered the 
fraud by the use of due diligence. Andrews v. Dole, 1 Dill. 108; 1 Fed. 
Cas. 878. 

Suit to set aside a bankrupt's deed is barred by the two. years' limitation 
as against a subsequent assignee, the first assignee having been Informed 
of all the facts and having died without taking action thereon. Scott v. 
Little, 76 Fed. Rep. 563. 

The first assignee having died, the new assigneee cannot plead the 
statute of limitations as a bar to a claim on a note given by himself to 
his predecessor. In re Newcomb, 32 Fed. Rep. 826. 

Held, that section 5057, R. S., applied as well to suits by the assignee 
as to suits against him. Adams v. Collier, 122 XJ. S. & 

A bankrupt upon his examination refused to answer certain questions 
on the ground that his answers might criminate him. This was held not 
^o be such notice to the assignee in bankruptcy of the fraud as would 
start the running of the statute of limitations. Rosenthal v. Walker, 111 
U. S. 105. 

The limitation as to suits by or against an assignee in bankruptcy re- 
lates to parties other than the bankrupt. Phelps v. McDonald, 99 U. 
S. 298. 

Held, that the limitation in section 5057, R. S., in an action to redress 
a fraud does not begin to run until the fraud is discovered. Rosenthal 
V. Walker, 111 U. S. 185. 

Held, that section 5057, R. S., applied only to suits respecting property 
of the bankrupt which came into the hands of the assignee to which 
adverse claims existed before assignment. Dushane v. IJeall, 161 V. S. 
513. 

In the case cited, the supreme court decided under what circumstances 
the right of action of a plaintiff under a purchase from an assignee In 



110 The Bankruptcy Law. 

bankruptcy to redeem from a sale under a deed of trust was barred by 
the limitation of the Act of 1867. Greene v. Taylor, 132 U. S. 415. 

Where an assignee in bankruptcy conveyed the bankrupt's interest In 
real estate, which was in the possession of another under claim of title, 
two years after the cause of action in the assignee accrued, it was held 
that the rights of the purchaser equally with those of the assignee were 
barred by section 5057, R. S. Wisner v. Brown, 122 tl. S. 314. 

A supplementary bill against an assignee in bankruptcy set up no new 
cause of action, but only matters in support of an estoppel. It was held 
that this was not subject to the limitation of section 5067, R. S. Jenkins 
V. International Bank, 127 U. S. 484. 

An assignee had proceeded in the court of bankruptcy to determine the 
title to certain property, but dismissed the proceedings without the con- 
sent of the defendants. Later, he filed a bill in equity in the circuit court 
for the same purpose. Held, that in applying section 5057, R. S., the 
latter proceeding was to be regarded as a continuation of the former. 
Adams v. Collier, 122 U. S. 382. 

The bar of the statute of limitations in the Bankrupt Act of 1867 was 
held not to be removed by mere ignorance of the existence of a cause of 
action by the assignee. Avery v. Cleary, 133 U. S. 604; Oleary v. Ellis 
Foundry Co., id. 612. 

Held, that the rights of a purchaser of the bankrupt's interest in real 
estate from an assignee in bankruptcy were subject to the limitation of 
section 5057, R. S. Wisner v. Brown, 122 U. S. 214. 

Held, that under the limitation of section 5057, R. Si, in an action 
against the assignee of a bankrupt, he will be chargeable with con- 
structive notice of any concealment of fraud by the bankrupt. Oook v. 
Sherman, 20 Fed. Rep. 167. 

Held, that the statute of limitations in a bankruptcy act must be taken 
advantage of by demurrer or answer or it will be waived. Bartles v. 
Gibson, 17 Fed. Rep. 293. 

The statute of limitations applies to a suit by an assignee in bankruptcy 
to recover land fraudulently claimed and retained by the bankrupt as a 
homestead. Leech v. Dawson, 23 Fed. Rep. 654. 

A pledgee of stock to secure an unliquidated demand has not such 
adverse interest as will require suit to be brought therefor by the assignee 
within two years. Maynard v. Tilden, 28 Fed. Rep. 688. 

The limitation of two years to suits by or against the assignee does not 
apply to, or limit the jurisdiction of the bankruptcy court in proceedings 
to adjust priorities or determine specific claims to property in its custody 
or control. In re Anderson, 23 Fed. Rep. 482. 

The statute of limitations does not apply to proceedings by the assignee 
against the bankrupt to recover assets omitted from his schedule. Thomas 
V. Blythe, 55 Fed. Rep. 961. 

Held, that the limitation of actions in the Law of 1867 applied to all 
judicial controversies between the assignee and an adverse party. Bally 
V. Glover, 21 Wall. 842. 



Bankhupts. Ill 

Section 8 of the Act of 1841 related only to suits against persons having 
claims to property surrendered by the bankrupt. Clark v. Clark, 17 
How. 315. 

Held, that the limitation In the Act of 1841 (section 8) did not apply to 
suits by assignees or other grantees of real estate until two years after 
adverse possession. Banks v. Ogden, 2 Wall. 57. 

An action by an assignee in bankruptcy to recover a debt is within the 
limitation of section 5057, R. S., as well as a controversy concerning 
property. Jenkins v. International Bank, 106 U. S. 571. 

A writ of error to a judgment rendered in a state court against the 
bankrupt shortly before adjudication was held to be a suit within section 
5057, R. S. Ibid. 

Section 5057, R. S., was held in the case cited not to be jurisdictional, 
but a statute of limitations only. Upton v. McLaughlin, 105 tJ. S. 640. 

In law and in equity, the limitation of an action to redress a fraud do 
not begin to run until the discovery of the fraud. Bally v. Glover, 21 
Wall. 342. 

Where an assignee in bankruptcy had obtained possession of securities 
held by a creditor, an action to recover them must be brought within two 
years from the time when such possession commenced, unless they were 
delivered upon some condition or agreement. Doe v. Hyde, 114 U. S. 247. 

In a suit by an assignee in bankruptcy to obtain redress against a fraud 
concealed by the defendant, or secret from its nature, the statute of 
limitations does not begin to run until the discovery of the fraud. Rosen- 
thal V. Walker, 111 U. S. 185. 

Where a defendant failed to plead the bar of the statute of limitations 
in an action by an assignee in bankruptcy, it was held that he could not 
do so in the appellate court. Upton v. McLaughlin, 106 U. S. 640: 

It was held that the Bankrupt Act (1867), and not the law of the state 
where the proceedings are had, fixes the time within which a preference 
can be set aside. In re Hamlin et al., 8 Biss. 122; 11 Fed. Oas. 869. 

More than two years after the cause of action accrued, an assignee in 
bankruptcy brought suit against persons who had received money as 
counsel fees from the bankrupts without authority at law. The action 
was held to be barred by section 5067, R. S. Miltenberger et al. v. 
Phillips, 2 Woods, 115; 17 Fed. Oas. 424. 

In the case of a suit by an assignee to collect from stockholders upon 
unpaid subscriptions, the statute of limitations begins to run from the 
execution of the debt of assignment, and not from the date of the assess- 
ment on the stock by the bankruptcy court. Payson v. Coffin, 5 Dill. 473; 
19 Fed. Gas. 18. 

The limitation of two years under the Act of 1867 (section 5057, R. S.), 
applied to an action by the assignee to collect assets as well as to suits 
relating to specific property. Payson v. Coffin, 4 Dill. 386; 5 id. 573; 19 
Fed. Gas. 18. 

That the assignee did not know of his right to certain assets of the 
bankrupt until after the two years' limitation had expired does not affect 
the bar of limitation. Norton v. De La Villebeuve, 18 Fed. Gas. 417. 



113 The Bankeuptcy Law. 

On all matured claims and demands the cause of action accrues to the 
assignee at the date of the assignment; all others from their maturity or 
at the time when an action will lie, and under the Act of 1867 he must sue 
within two years from these dates respectively. Ibid. 

A trustee in bankruptcy had secured a decree setting aside a general 
assignment for the benefit of creditors. Later, he brought suit to re- 
cover from a third party money in his possession, the title to which had 
passed to the voluntary assignee. Held, under the Act of 1867 (section 
5057, R, S.), that the cause of action had not accrued until the entry of the 
decree setting aside the assignment. Tappan v. Whittemore et al., 15 
Blatchf. 440; 23 Fed. Cas. 685. 

The banlirupt had concealed from the assignee the facts attending a 
certain transaction, and the latter had no linowledge of them until within 
three months before the bringing of the suit It was held that the statute 
of limitations in section 2 of the Act of 1867 did not bar the action. Tyler 
V. Angevine, 15 Blatchf. 536; 24 Fed. Cas. 458. 

Held, under the Act of 1867, that a suit by an assignee to collect claims 
must be brought within two years from the time when the cause of action 
accrued to the assignee; and that when the assignee filed his complaint 
within two years, but the summons was not issued or served until more 
than two. years, the action was barred. Walker v. Towner, 4 Dill. 165; 29 
Fed. Cas. 57. 

The petition in bankruptcy was filed December 31, 1868, and an assignee 
appointed April 1, 1869. The latter brought suit on a debt which accrued 
February 5, 1867. The court held that the limitation of two years in sec- 
tion 2 of the Act of 1867 did not apply. Smith v. Crawford, 6 Ben. 497; 
22 Fed. Cas. 489. 

The doctrine of equity that a statute of limitations cannot be made use 
of to carry out a fraud does not apply to a preferred creditor who con- 
ceals the transaction from other creditors. Anibal v. Heacock, 2 Fed. 
Rep. 169. 

The wife of one of the bankrupts presented a petition asking that she 
be paid a royalty upon a copyright of certain books sold by the assignee 
in bankruptcy. The assignee defended on the ground that the copyright 
was transferred to her by her husband in fraud of his creditors. Held, 
that he was not barred from setting up this defense because he had not 
proceeded by suit within two years to recover the copyright, or to have 
the transfer set aside. In re English et al., 6 Fed. Rep. 276. 

Under the Act of 1867 a suit might be brought by the assignee within 
two years after his election if the cause of action existed at the time of 
the filing of the petition. Trustees of M. B. F. & D. S. Co. v. Bosseiux 
et al., 3 Fed. Rep. 817. 

One of three assignees in bankruptcy, who was indebted to the bank- 
rupt, died. It was held that the statute of limitations (section 5057, R. S.) 
did not begin to run until the death of the assignee as to the action 
brought by his coassignees to recover the claim from his representatives. 
Doty et al. v. Johnson et al., 6 Fed. Rep. 481. 



Bankeupts. 113 

A creditor filed a petition to be paid from the proceeds of the sale of a 
vessel a lien for supplies and repairs. Held, that this was substantially 
a suit, and was covered by section 5057, R. S. In re Ohurchman et al., 
5 Fed. Rep. 181. 

Where the administrator of a decedent claims the proceeds of certain 
stocks In the hands of an assignee In banliruptcy, exceeding $5,000 in 
value, his remedy is a suit at law or In equity, and not a summary pro- 
ceeding; and such an action was held to be within the two years' limita- 
tion of section 5057. In re Staib et al., 3 Fed. Rep. 209. 

The statute of limitations Is applicable in national as in state courts, 
and the limitation provision in the Banlsrupt Act applies to all judicial 
controversies between the assignee in behalf of the bankrupt's estate and 
any person whose Interest is adverse. In re Scovill, 4 OllfC. 549; 21 Fed. 
Cas. 856 (1878). 

A bill In equity by an assignee in bankruptcy to set aside a conveyance 
•by the bankrupt on the ground of a secret fraud is demurrable In the 
absence of an allegation that the fraud was discovered within the time 
allowed by the statute of limitations to avoid the bar. Lichtenauer v. 
Caieeny et al., 8 Fed. Rep. 876. 

Held, under the Act of 1867, that where the bankrupt had concealed 
certain bonds, the statute of limitations did not begin to run against his 
assignee in bankruptcy until the discovery of the fraud. Martin v. 
Fullings, 3 Fed. Rep. 206. 

The two years' limitation under the Act of 1867, between an assignee 
and a person claiming adverse interest, does not apply In case of a fraud- 
ulent dormant judgment until two years after steps have been taken to 
establish the judgment lien. Lehman v. LaForge, 42 Fed. Rep. 498. 

When tax deeds were obtained and recorded after the lands had vested 
In the assignee in bankruptcy under the assignment, a suit by the as- 
signee to set aside the deeds commenced more than two years after the 
making and recording of the deeds could not be maintained. Section 5057, 
R. S. Harvey v. Gage, 31 Fed. Rep. 275. 

Where an assignee in bankruptcy refused to assume ov^nership of a 
right of action existing in the bankrupt, the right of action by a purchaser 
from the bankrupt Is governed by the general statute of limitations and 
not by section 5057, R. S. Sessions v. Romada, 145 U. S. 29. 

When an assignee in bankruptcy had, at the time of his appointment, 
information which would have led to a discovery of facts constituting the 
fraud on which the cause of action was based, it was held that suit 
thereon two years later was barred by the limitation of section 5057, 
R. S. Yancy v. Oothran, 32 Fed. Rep. 687. 

Held, that the statute of limitations of the state of New York against 
suits to set aside fraudulent conveyances applied, and began to run, 
against the assignee in bankruptcy at the same time that it commenced 
to run against the creditors. Jones v. Smith, 38 Fed. Rep. 380. 

A fraudulent agreement was made by the bankrupt and a third party 
by which composition was procured, and the assignee ordered by the court 

8. 



114 The Bankeuptct Law. 

to convey property to such party. The compromise was afterward set 
aside. Held, that the time the compromise remained In force should 
be deducted in determining the period of limitation under section 5057, 
R. S. Fairbanks v. Bank, 38 Fed. Rep. 630. 

The court here decided what constituted sufficient information as to a 
trust deed and its contents to put the assignee in bankruptcy on Inquiry. 
Greene v. Taylor, 132 XJ. S. 415. 

The limitation in section 3 of the Act of 1867 was held to apply only 
to property held adversely to a bankrupt or his assignee. Davis v. 
Anderson et al., 6 N, B. R. 145; 7 Fed. Oas. 103. 

The statute of limitations does not begin to run until the fraud Is dis- 
covered as to an action to recover property concealed by the party, or 
for redress against a fraud which, by Its nature, remains a secret. 
FuUings V. FuUlngs, 3 N. J. L. J. 270; 9 Fed. Cas. 991. 

An assignee in bankruptcy sought to recover certain property, or the 
proceeds thereof, from a third person to whom it was alleged they were 
fraudulently transferred. The latter opposed the proceedings on the 
ground that the amount claimed by the assignee was larger than he was 
liable for, and also on account of a claim for services,, which was dis- 
puted by the assignee. The court decided that he was not a " person 
claiming an adverse interest touching the property and rights of property 
of such bankrupt," within the meaning of section 2 of the Act of 1867. 
In re Krogman, 5 N. B. R. 116; 14 Fed. Cas. 866. 

A petition to recover certain property and books of account alleged to 
have been fraudulently transferred was held to be " a suit at law or in 
equity " within the meaning of section 2 of the Act of 1867, fixing a 
limitation on such suits. In re Krogman, 5 N. B. R. 116; 14 Fed. Cas. 866. 

Under the Act of 1867 the limitation of the time for the commencement 
of actions by an assignee in bankruptcy began to run from the time of 
his appointment. Bank v. Sherman, 101 tl. S. 403. 

An action for the recovery of insurance money was held to be barred 
by section 5057, R. S., notwithstanding the bankrupt had omitted to dis- 
close that the policies hacl been taken out and assigned before bankruptcy 
to a trustee for his daughters. Avery v. Cleary, 132 U. S. 604; Cleary v. 
Ellis Foundry Co., id. 612. 

Section 8 of the Act of 1841, fixing a two years' limitation for suits by 
or against an assignee in bankruptcy, was held to apply only to suits 
growing out of disputes In respect to property rights of the bankrupt 
which came into the hands of the assignee, and to have no reference to 
suits growing out of the dealings of the assignee with the property after 
It came into his hands. In re Oonant, 5 Blatchf. 54; 6 Fed. Cas. 257. 

[See notes to §§ 2, 47 and 70.1 
[For; an important opinion, affirming tlie autliority of the district court under the Act 
of 1898 to ^rant an injunction against the sale of property under the process of a State court 
until a petition in hanlcruptcy can be filed against tne debtor, see notes to section 71.] 

Compositions. 

§ 12. Compositions, when Confirmed.— (a.) A bankrupt may offer 
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 filed in 



Bankrupts. 115 

court the schedule of his property and lists of his creditors, required to 
be filed by bankrupts. 

(b.) An application for the confirmation of a composition may be 
filed in the court of bankruptcy after, but not before, it has been ac- 
cepted in writing by a majority in number of all creditors whose claims 
have been allowed, which number 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 confirmation 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 best interests of the creditors; 

(8.) 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. When- 
ever a composition is not confirmed, the estate shall be administered in 
bankruptcy as herein provided. 

Application. 

In the case cited, the circuit and district courts decided that the pro- 
vision for compositions in the Laws of 1867 is constitutional, and dis- 
cussed the requirements of the resolution and other proceedings In such 
cases. In re Eeiman et al., 7 Ben. 455; 12 Blatchf. 562; 20 Fed. Oas. 490, 
500. 

Composition proceedings must be had in the district court where the 
bankruptcy proceedings are pending. In re Wronknow, 15 Blatchf. 38; 
18 N. B. R. 81; 30 Fed. Oas. 718. 

After the adjudication of a firm, one member may submit a proposition 
for a composition, notwithstanding the firm had made an assignment for 
the benefit of creditors under a state law prior to the adjudication. Pool 
V. McDonald et al., 15 N. B. E. 560; 19 Fed. Cas. 987. 

An order refusing a discharge in bankruptcy is not a bar to composition 
proceedings. In re Joseph, 24 Fed. Rep. 137. 



116 The Bankeuptcy Law. 

The mere fact that the bankrupts have been refused a discharge in 
bankruptcy on a specification of objection is not an absolute bar to a 
composition under the Act of 1867. A discharge releases a bankrupt 
from his debts whether there are or are not assets for distribution. Under 
a composition, a sum of money is paid in satisfaction of the debt. In re 
Odell, 16 N. B. R. 501; 18 Fed. Gas. 575. 

A petition for composition should set forth its nature and terms, and the 
belief of the petitioner that it will be accepted by the required number. 
So held under the Act of 1867. In re Holmes, 8 Ben. 74; 12 Fed. Gas. 393. 

A debtor, injured creditors, or the assignee in bankruptcy, can recover 
money paid to secure signatures to a composition, and it is no defense to 
such an action that the composition deed was invalid. Bean v. Brook- 
mire, 2 Dill. 108; 2 Fed. Gas. 1132. 

United States Act of 1874 and British Act of 1868 concerning com- 
positions compared; extracts quoted in parallel columns. In an elaborate 
and carefully prepared opinion. Judge Treat discusses the law and pro- 
cedure in composition, the respective rights of creditors and of the bank- 
rupt, and analogies of the United States statute with the British act In 
re Scott, 15 N. B. R. 73; 21 Fed. Oas. 805 (1876). 

Hearing. 

Where a composition is pending, the bankrupt can be compelled to 
appear before the register and produce his books for examination on the 
question whether the composition was for the interest of all concerned. 
In re Ash, 17 N. B. R. 19; 2 Fed. Gas. 6. 

In a proceeding for a composition, the books of the bankrupt must be 
produced if desired and time given for an examination before the vote is 
taken. At such meeting the register, or other presiding officer, has power 
to regulate the proceedings and decide questions subject to review by the 
court. The examination of the debtor should be conducted like that of a 
witness in a court, and the proceedings should be recorded. In re Holmes, 
8 Ben. 74; 12 Fed. Gas. 393. 

Where the object of a meeting of creditors to consider a proposed com- 
position failed by reason of mistakes on the part of attorneys, it was held 
that the court might order a second meeting. In re McDowell, 6 Biss. 
193; 16 Fed. Gas. 69. 

It is not competent for a resolution of composition to provide that upon 
the delivery of the notes agreed to be given to the creditors, all the prop- 
erty in the hands of the assignee shall be delivered to the bankrupt and 
the assignee discharged. In re Hyman et al., 8 N. B. R. ; 12 Fed. Ca,s. 
1135. 

At a meeting of creditors to vote upon a composition, thee bankrupt was 
absent. After a recess, the bankrupt not appearing for examination, a. 
resolution accepting a composition was passed. Creditors who had op- 
posed an adjournment to permit the attendance of the bankrupt, objected 
to the confirmation on the ground of his absence, and the fact that he 
had not been examined. The court held that the objections were too late 



Bankrupts. 117 

after the adoption of the resolution. In it' Little, 19 N, B. R. 234; 15 Fed. 
Oas. 600. 

At .a meeting for final action on a proposed composition, the report of 
the register will be assumed to be a full and true record of all the pro- 
ceedings had before him. In re Spencer, 18 N. B. R. 199; 22 Fed. Cas. 914. 

It was held that a composition by which a previous assignment under 
a state law was ratified might be varied at a subsequent meeting of 
creditors by providing for the distribution of the assets In bankruptcy, 
no creditors being prejudiced thereby. In re Dumahaut et al., 15 Blatchf. 
20; 7 Fed. Cas. 1177. 

When a bankrupt asks for a meeting of creditors for the purpose of 
proposing a composition, tie will be held primarily liable for the register's 
costs under the Act of 1SG7. In re Griffin, 8 Ben. 328; 11 Fed. Cas. 5. 

Who May Participate in Proceedings. 

In determining whether the required number of creditors had joined 
in a composition, those who are fully secured need not be taken into 
account. In re Van Auken et al., 14 N. B. R. 425; 28 Fed. Oas. 946. 

Attaching creditors have no right to vote in composition proceedings, 
and are affected by the composition. In re Shields, 4 Dill. 588; 15 N. B. 
R. 532 (1877); 21 Fed. Oas. 1308. 

The Amendatory Bankrupt Act of 1874 contemplated that secured 
creditors should not vote at a composition. A creditor who had attached, 
therefore, could not vote until he should release the attachment. In re 
Scott, 15 N. B. R. 73; 21 Fed. Cas. 805 (1876). 

In composition proceedings, where there are joint and separate debts, 
the creditors may direct a general composition if there is no objection, 
but if any creditor objects there must be a vote by the separate classes 
of creditors. In re Spades et al., 6 Biss. 448; 22 Fed. Cas. 848. 

Creditors who have proved their debts under a void voluntary assign- 
ment may nevertheless vote upon a resolution for a composition in 
bankruptcy proceedings. In re Troth, 1 Fed. Rep. 405. 

Objections to the vote of 'a creditor upon a proposed composition on 
the ground that his claim is fictitious cannot be made for the first time 
on the motion for confirmation. They should be made before the vote 
is taken, or if the facts are discovered afterward, then as soon as pos- 
sible. In re Block et al., 18 N. B. R. 328; 3 Fed. Oas. 715. 

At a meeting of creditors of a firm to act on a proposed compromise, 
Individual creditors have no right to vote. In re South Boston Iron Co., 
4 Cliff. 343; 22 Fed. Cas. 812. 

A creditor who considers himself secured, though he is not, is not 
entitled to consideration in determining whether the required number 
have assented to the composition. In re Snelling, 19 N. B. R. 120; 22 
Fed. Oas. 719. 

The word " creditors " in the provisions of the Act of 1867, relating to 
compositions, was held to mean all persons having debts provable in 
bankruptcy. Ex parte Trafton, 2 Low. 505; 24 Fed. Cas. 122. 



118 The Bankeuptot Law. 

Workmen having privileged debts were held entitled to vote for a com- 
position only on the excess of their debts over $50, made privileged by 
law. In re O'Neil, 14 N. B. R. 210; 18 Fed. Cas. 715 (1876). 

Where a creditor had appeared at a meeting to consider an offer of 
composition, and subsequently withdrawn, it was held that he could be 
counted as voting against the composition. In re Richmond et al., 18 
N. B. R. 362; 20 Fed. Cas. 736. 

Creditors of a bankrupt gave a power of attorney to sign a composi- 
tion with directions that it was not to be accepted if made for less then 
20 per cent., one-half payable in six months and one-half in twelve 
months from February 16th. The attorney signed a composition for 20 
per cent, payable in six and twelve months, from March 16th. 

The difference in time was held to be fatal to the proceedings. In re 
Alexander, 9 Ben. 99; 1 Fed. Cas. 347. 

Creditors who have not proved their debts, but were allowed to 
intervene in the proceedings prior to adjudication, cannot take paii: in 
subsequent proceedings for a composition. In re Bryce et al., 19 N. B. R. 
287; 4 Fed. Oas. 520 

The question being whether one-half of the creditors had assented to 
a composition, damages for a tort not assessed were excluded. In re 
Bailey et al., 2 Woods, 222; 2 Fed. Oas. 362. 

A creditor can vote on claims which he bought up for the express 
purpose of opposing the composition. Ex parte Jewett, 2. Low. 393; 13 
Fed. Cas. 580. 

Only creditors who have proved their claims are qualified to take 
part in a meeting to receive a proposed composition. Oral or written 
testimony may be received at such a meeting when it is pertinent to 
the question whether the composition is for the best interest of creditors. 
In re Keller et al., 18 N. B. R. 331; 14 Fed. Cas. 233. 

Held, under the Act of 1867, that only creditors who had proved their 
debts could vote upon accepting a proposition to have a composition. In 
re Matthers, 17 N. B. R. 225; 16 Fed. Cas. 1093. 

Objections to Confirmation. 

The court will interfere with a proposed composition on the applica- 
tion of a single creditor who charges fraud or deceit, to examine the 
charges. In re Keiler, 18 N. B. R. 36; 14 Fed. Cas. 216. 

The fact that the debtor retains possession of his assets is no ground 
for refusing to confirm a composition which was made before adjudica- 
tion. In re Van Auken et al., 14 N. B. R. 425; 28 Fed. Cas. 946. 

The necessary number of creditors having signed, and it appearing 
that the interests of all creditors would be promoted by the terms of a 
composition, it must be confirmed, notwithstanding the bankruptcy was 
brought about fraudulently and collusively. In re Allen, 17 N. B. R. 157; 
1 Fed. Cas. 439. 

After the refusal of a discharge, a majority of the creditors voted to 
accept a composition for one-half of 1 per cent. On the objection 



Bankrupts. 119 

of two creditors who had opposed the discharge, the court refused to 
confirm the composition. In re Hannahs, 8 Ben. 553; 11 Fed. C'as. 446. 

The court will confirm a composition where It appears that the dis- 
senting creditor would not receive any more than the proposed amount 
if the administration should proceed, no collusion having been established. 
In re Keller, 18 N. B. R. 36; 14 Fed. Gas. 216. 

The court confirmed a resolution of composition which provided that 
the payment should be secured by a satisfactory bond running to. three 
persons named in the resolution as a committee of creditors. In re Lewis, 
14 N. B. K. 144; 15 Fed. Gas. 456. 

A court will not confirm a composition, although accepted by the re- 
quired number of creditors, when it clearly appears that the bankrupt 
has given preference to certain creditors in fraud of the law prior to 
the proceedings. In re Jacobs, 18 N. B. R. 48; 13 Fed. Gas. 271. 

The required number of creditors accepted and confirmed an offer of 
composition which provided for the payment of the debts by unsecured 
notes to be delivered within ten days, and that immediately upon the 
recording of the resolution of composition, the property of the banli- 
rupt should be restored to them and the proceedings discontinued. The 
court refused to confirm the composition. In re Janeway, 8 Ben. 267; 
13 Fed. Gas. 847. 

Where the bookkeeper of the bankrupt, without the knowledge of the 
latter, paid money to one creditor, who thereupon assented to a com- 
position, and offered money to another, who refused, the court refused 
to confirm the composition, notwithstanding the required proportion of 
creditors had signed without counting the one who had received money. 
In re Bennett et al., 8 Ben. 561; 3 Fed. Gas. 205. 

A payment by the banlsrupt to one creditor of a larger sum than 
was paid to others, for the purpose of inducing him to accept a com- 
position, Is unlawful, and so is a promise to pay money to a creditor's 
agent in consideration that he will urge the acceptance of a compromise. 
BuUene v. Blain, 6 Biss. 22; 4 Fed. Gas. 646. 

A discharge does not release a bankrupt as to debts omitted from his 
schedule; and it follows that an omission cannot be urged to an opposi- 
tion to the confirmation of a composition. In re Greenebaum et al., 1 
Ghi. L. J. 599; 10 Fed. Gas. 1156. 

It is not a valid objection to a composition that some of the signers 
acted in g. representative capacity. In re Greenebaum et al., 1 Chi. L. 
J. 599; 10 Fed. Gas. 1156. 

The creditors of a corporation consented to a composition for 75 
per cent., payable in installments running for three years, and pro- 
viding that its property should be restored to it. The president, who 
was also at one time treasurer, while serving in the latter capacity 
had used the funds of the company for his own benefit, and the trustees 
had settled with him without criminal prosecution. The court, under 
the circumstances of the case, and in view of the character and conduct 
of the managing officers of the corporation, refused to confirm the com- 
position. In re McKnab & H. M. Go., 18 N. B. B. 388; 16 Fed. Gas. 313. 



130 The Bankruptcy Law. 

An order to record a composition will not be refused on account of 
delay that did not amount to laches in securing the required number of 
signatures. In re Oavan, 19 N. B. R. 303; 5 Fed. Oas. 318. 

The bankrupt procured friends to pay more in composition than his 
estate could pay in bankruptcy. Judge Lowell held that such a com- 
position " stands well before the court." In re Snelling, 19 N. B. R. 120; 
22 Fed. Gas. 719. 

A composition for 25 per cent, with an agreement that as soon as the 
first installment of 5 per cent, should be paid, the bankrupt should re- 
sume possession of his property, when It appeared that before his bank- 
ruptcy he had misappropriated funds belonging to another, was not 
confirmed. In re Bloch et al., 18 N. B. B. 328; 3 Fed. Oas. 715. 

The fact that a bankrupt has committed acts which would be ground 
for denying a discharge will not prevent the court from confirming a 
rfesolution of composition. In re Troth, 19 N. B. R. 253; 24 Fed. Oas. 214. 

The fact that the assets of the debtor by the terms of the composi- 
tion are allowed to remain in the hands of the debtor does not neces- 
sarily show that tlie settlement is not for the best interest of all con- 
cerned. In re Wilson, 18 N. B. R. 300; 30 Fed. Oas. 98 (1878). 

The circuit court for the eastern district of Michigan, reversing the 
district court, held that where a resolution of composition has been 
passed after an examination of the debtor, though there are badges 
of fraud, the district court should not refuse to confirm without a hear- 
ing upon notice to the bankrupt and the creditors voting with the ma- 
jority. In re Weber Furniture Co., 13 N. B. R. 559; 29 Fed. Gas. 536. 

The question being whether a composition should be confirmed, the 
court held that it should consider what the creditors would receive in 
the course of proceedings, and not what the debtor might possibly be able 
to pay them. In re Whipple, 2 Low. 404; 29 Fed. Oas. 929. 

The bankrupt had satisfied some of his debts at large discounts, and his 
brother had purchased others. This Tvas held to be no reason for re- 
fusing to confirnl a composition which had been approved by two-thirds 
of the creditors holding the majority of the claims independent of those 
held by the brother. In re Walshe, 2 Woods, 225; 29 Fed. Oas. 110. 

In the absence of a flagrant disparity, the confirmation of a composition 
will not be refused merely on a representation that the estate could pay 
more. In re Welles, 18 N. B. R. 525; 29 Fed. Gas. 619. 

The absence of one of the debtors at a creditors' meeting, he having 
been excused by a majority, is not of itself sufficient cause for rejecting 
a composition. In re Wronknow, 15 Blatchf. 38; 18 N. B. R. 81; 30 Fed. 
Oas. 718. 

The judgment of the requisite majority in composition proceedings 
should be allowed to prevail unless obtained without sufiicient considera- 
tion, or by unfairness or undue influence. In re Wronknow, 15 Blatchf. 
38; 18 N. B. B. 81; 30 Fed. Oas. 718. 

On the final hearing to confirm a composition, the court of bankruptcy 
referred the matter back to the register to report the facts, and the circuit 



Bankeupts. 131 

court, through Justice Bradley, approved of the action, holding that the 
court of bankruptcy need not regard the ordinary rules of procedure in 
the exercise of its equitable jurisdiction. In re Walshe, 2 Woods, 225; 29 
Fed. Cas. 110. 

Judge Lowell held under the Act of 1867, that a I'esolution for com- 
position providing for the payment of debts in notes was faulty; but that 
the payment might be made in installments represented or secured by 
notes. In re Langdon, 2 Low. 3S7; 14 Fed. Cas. 1099. 

A composition that provided for a payment to be secured by a satis- 
factory bond to be given to three persons as a committee of creditors, 
was confirmed, with the understanding that such committee should de- 
cide whether the bond was satisfactory. In re Louis et al., 7 Ben. 481; 
15 Fed. cas. 942. 

The law devolves upon 'creditors the duty of accepting or rejecting 
propositions for a composition; and if they acted in the full knowledge 
of the condition of the bankrupt's affairs, and of their rights, the court 
will not withhold confirmation. In re Greenebaum et al., 1 Chi. L. J. 
599; 10 Fed. Cas. 1156. 

Effect of Confirmation. 

The acceptance and recording of a composition do not dissolve existing 
attachments; they are only dissolved by an assignment under the Law of 
1867. In re Clapp et al., 2 Low. 468; 5 Fed. Cas. 819: 

The confirmation of a composition, and the performance of the con- 
ditions by the bankrupt suspends the functions of the assignee, and the 
delivery of any property by him to the bankrupt in accordance with the 
terms of the composition dlschai-ges him from any further liability there- 
for. In re August, 19 N. B. K. 161; 2 Fed. Cas. 208. 

The court dissolved an injunction to prevent a creditor from levying an 
execution on the personal property of a bankrupt after a composition had 
been confirmed. In re Tytle et al., 14 N. B. R. 457; 15 Fed. Gas. 1195'. 

After the confirmation of a composition, a secured creditor is confined 
to the security, and has no claim against the bankrupt for a deficiency. 
Ibid. 

It is not the resolution of composition, but the payment of the amount 
agreed upon that discharges the bankrupt. In re Hurst, 13 N. B. R. 455; 
12 Fed. Cas. 1020. 

When a composition has been made, accepted, and approved by the 
court, and its terms complied with by the debtor, he is discharged from 
the claims of all creditors, whose names, addresses, and the amounts due 
them have been given in his statement, and no other discharge is neces- 
sary or proper. In re Beckett, 2 Woods, 173; 3 Fed. Cas. 27. 

Under the amendment of 1874 authorizing the court to enforce the pro- 
visions of a composition in a summary manner, it can enforce only the 
executory provisions of the composition, and the taking by a creditor of 
the money and notes provided for by a composition is not an executory 
provision which can be so enforced. In re Hinsdale, 7 Ben. 9; 12 Fed. 
Gas. 207. 



133 The Bankeuptcy Law. 

After the time for paying a composition is passed, tlie court cannot 
enjoin a creditor who refuses to accept the money from suing the debtor 
for his claim. The latter may plead the composition in defense. Where 
the composition is still pending, that is, until all notes given for it fall 
due, the rule is otherwise, and the court may enjoin a creditor from suing 
the debtor on an unsecured debt set forth in his schedules. Ibid. 

Under sections 12 and 13 of the amendatory Act of 1874, a judgment 
of the district court declaring a composition final was held not to be 
reviewable. In re Lloyd, 15 Fed. Gas. 717. 

A discharge by proceedings in composition was held to be within the 
meaning of section 5116, E, S. Buiz v. Eickerman, 5 Fed. Rep. 790. 

A debtor, having made a composition with certain creditors, paid an- 
other creditor, who had refused to unite in the composition, out of a fund 
which was not included in the schedules. It was held 'that the creditors 
signing the composition could not recover from the creditor who received 
such payment. National Park Bank v. People's Bank et al., 25 Int. Rev. 
Bee. 169; 1 Fed. Oas. 1229. 

The bankrupt had promised to pay a certain percentage of his debts in 
composition proceedings, and his wife had agreed in writing to unite in a 
mortgage on the homestead to secure the installments. Before the con- 
firmation, the bankrupt absconded. A motion by the assignee to compel 
the bankrupt and his wife to execute the notes and mortgage in accord- 
ance with the composition was denied, and the court held that the only 
relief, if any, could be found in a plenary suit. In re Remsen, 9 Ben. 260; 
20 Fed. Oas. 531. 

An order of composition cannot deprive a nonconsenting creditor of a 
vested right. In re Stowell, 2i Fed. Rep. 468. 

When a creditor neglects to prove his claim in composition proceedings 
until after the final distribution, he is not entitled to relief. In re Starr, 
56 Fed. Rep. 142. 

Judge Choate, of the district court for the southern district of Xew 
York, held that a composition in bankruptcy discharged fiduciary debts. 
In re Rodgers et al., 18 N. B. R. 252; 20 Fed. Gas. 1085. 

Proceedings in composition may bind creditors notwithstanding they 
are irregular as to other parties. In re Rodger et al., 18 N. B. R. 381; 20 
Fed. Gas. 1088. 

Judge Emmons reached the conclusion from an examination of English 
and American cases that in the absence of fraud, accident or mistake, the 
action of the majority of the creditors upon a composition is conclusive 
as to the amount. In re Weber Furniture Co., 13 N. B. B. 559; 29 Fed. 
Gas. 536. 

A resolution of composition provided that the debtor having executed 
certain notes, his property should remain in his control; that for better 
security a receiver be appointed, who should not, however, take posses- 
sion of the property until a default should be made by the debtor in pay- 
ment of any of the notes. It was held that the court was not bound by 
the provisions as to receiver, and might appoint another, or, in its dis- 



Bankbupts. 133 

cretion, proceed to administer tlie estate in bankruptcy. In re Wilson, 16 
Blatchf. 112; 30 Fed. Gas. 93 (1879). 

Willie a composition was pending to pay creditors 70 per cent., one 
of them demanded and received payment In full before signing. He was 
required to return the amount to the assignee, and having done so was 
allowed to prove his debt and receive dividends. Brookmire et al. v. 
Bean. 3 Dill. 136; 4 Fed. Gas. 243. 

When a composition had been arranged and conflrroed but not carried 
out, the creditor cannot thereupon proceed against the bankrupt for the 
collection of his debt for the reason that the bankruptcy proceedings are 
still pending, and he Is confined to them. In re Bayly, 19 N.. B. R. 73; 2 
Fed. Gas. 1085. 

I Where a composition contained an agreement that It should not be 
binding on anyone unless signed by all the creditors, the provision was 
held to apply to secured as well as to unsecured creditors. Rinsing's 
Assignee v. Bartholomew et al., 1 Dill. 156; 14 Fed. Gas. 642. 

Certain creditors, who had filed a petition for the review of an order 
confirming a composition, refused to receive payment of notes given in 
accordance with its terms. The money was ordered to be paid into court, 
and, the bankrupt having refused to do so, the court made a summary 
order upon him to pay the notes on the demand of the creditors. In re 
Reynolds, 16 N. B. R. 176; 20 Fed. Gas. 618. 

Where a bankrupt falls to perform or attempt a performance In ac- 
cordance with an arrangement in composition, a creditor may bring an 
action to recover his debt. Ransom v. Geer, 12 Fed. Rep. 607. 

Held, that section 17 of the amendatory Act of 1874 did not repeal sec- 
tion 5117, R. S., and that a composition did not release the bankrupt from 
a fiduciary debt. Wilmot v. Mudge, 108 U. S. 217; Bayley v. University, 
106 id. 11. 

A creditor was not bound by composition proceedings when his name 
did not appear in the schedule to the bankrupt or otherwise. In re 
Blackmore, 11 Fed. Rep. 412. 

A creditor who has exhausted his security, and has a deficiency judg- 
ment, may issue an execution upon the same against the property of the 
bankrupt, notwithstanding composition proceedings. Cavanna v. Bassett, 
3 Fed. Rep. 215. 

An action in a state court by a creditor seeking to recover his whole 
debt from a bankrupt who has effected a composition will not be re- 
strained by the court of bankruptcy. In re Negley, 20 Fed. Rep. 499. 

A settlement with creditors by composition takes the place of bank- 
ruptcy proceedings, and a discharge thus obtained is as complete as a 
discharge in bankruptcy. Mayer v. Gourden, 26 Fed. Rep. 742. 

The performance of the conditions of a lawful composition under sec- 
tion 17 of the amendatory Act of 1874 was held to be tantamount to a 
discharge. Boynton v. Ball, 121 U. S. 457. 

A creditor who had advanced money to the bankrupt with an under- 
standing that the latter should not be pressed for payment was held 



134 The Bankruptcy Law. 

entitled to share in the dividends under a composition, no misrepresenta- 
tion having been made to the bankrupt's creditors. In re Lane et al., 2 
Low. 333; 14 Fed. Gas. 1070. 

A bankrupt is by his discharge released from liability for breach of 
contract with a creditor who assented to a composition, although the 
creditor was ignorant of the breach at the time of giving assent. Fowle 
V. Parke, 48 Fed. Rep. 789. 

[See notes to § 14.] 

Setting Aside. 

§ 13. Compositions, when Set Aside. — (a.) The judge may, upon 
the application 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 prac- 
ticed in the procuring of such composition, and that the knowledge 
thereof has come to the petitioners since the confirmation of such 
composition. 

A composition will not be annulled by an innocent mistake of the 
debtor as to the amount due a creditor; and the correct amount may be 
proved. Ex parte Trafton, 2 Low. 505; 24 Fed. Cas. 122. 

Two years after a composition had been made and the dividends dis- 
tributed, creditors who had received their dividends filed a petition to set 
aside the composition on the ground that some of the votes in support of 
it had been purchased. In the meantime, the bankrupts had engaged in 
a new business and contracted new debts to a large amount. Before the 
composition, the petitioning creditors had sufficient knowledge to put them 
on their inquiry. Judge Blatchford held that it was too late to raise the 
question as to the means by which the composition was accepted, and 
rejected the application to set It aside. In re Herrman et al., 9 Ben. 436; 
12 Fed. Cas. 19. 

Where the vote of an unqualified creditor did not affect the result, a 
composition will not be set aside by reason of such vote. In re Walshe, 
2 Woods, 225; 29 Fed. Oas. 110. 

If a creditor is induced to vote for, or to sign a composition by any 
means different from or beyond the composition, whether known to the 
debtor or not, his vote so influenced operates as a fraud on the other 
creditors, and makes the composition voidable by any of them. A ma- 
jority arrived at by bribery, though the bankrupt be no party to it, is 
no fair majority; and it seems that if a vote is influenced by the expecta- 
tion of advantage, though without positive promise, it cannot be con- 
sidered an honest vote. In re Sawyer, 14 N. B. R. 241; 21 Fed. Oas. 559 
(1876). 

The fact that full security is not taken does not make a composition 
uncertain. In re Wilson, 18 N. B. R. 300; 30 Fed. Cas. 98 (1878). 



Bankeupts. 135 

An order vacating a compromise, obtained without notice, may be set 
aside by the bankruptcy court without notice. In re Dunn, 53 Fed. Rep. 
341. 

Irregularities in a proceeding respecting a composition which are not 
tainted with fraud are not fatal to its validity. In re Henry et al., 9 Ben. 
449; 11 Fed. Cas. 1148. 

It was held to be no ground to set aside a compromise that each of the 
bankrupts received a sum out of the partnership fund when that fact 
was known to the creditors before voting in favor of accepting the prop- 
osition. In re South Boston Iron Co., 4 Cliff. 343; 22 Fed. Cas. 812. 

Acts regularly done in accordance with a composition which is sub- 
sequently set aside are valid. Ex parte Hamlin, 2 Low. 571; 11 Fed. 
Cas. 367. 

A sale which might have been avoided by the assignee in bankruptcy 
will not be disturbed in a proceeding to set aside a composition after it 
has been fully executed. In re Shaw, 9 Fed. Rep. 495. 

A composition is not avoided by a delay in the payment which was 
caused by legal obstructions. In re Kohlsaat, 18 N. B. R. 570; 14 Fed. 
Oas. 833. 

A composition which is fraudulent as to some creditors can only be at- 
tacked by those who are injured. In re Hamlin et al., 8 Blss. 122; 11 
Fed. Cas. 369. 

A petition having been filed to set aside a composition on the ground 
that certain creditors had been paid more than others, the court ordered 
the clerk to call a meeting of creditors for the purpose of taking testimony, 
the petitioners to have the affirmative, and the clerk to report the testi- 
mony to the court. In re Diggles et al., 8 Ben. 36; 7 Fed. Cas. 693. 

A composition was procured in consideration of a premium to be paid 
by the bankrupt to one of his creditors, the latter buying claims against 
the estate and voting them in the composition. The composition being 
confirmed, the creditor aforesaid received a transfer of the bankrupt's 
property according to agreement. It was held that the composition was 
fraudulent, and that the assignee of the bankrupt could recover the prop- 
erty thus transferred. Fairbanks v. Bank, 38 Fed. Rep. 630. 

Discharges. 

§ 14. Discharges, when Granted. — (a.) Any person may, after the 
expiration 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 pre- 
vented 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 parties in 



126 The Bankruptcy Law. 

interest, at such time as will give parties in interest a reasonable oppor- 
tunity 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 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 ascertained. 

(e.) The confirmation of a composition shall discharge the bank- 
rupt from his debts, other than those agreed to be paid by the terms 
of the composition and those not affected by a discharge. 

Time of Application. 

It was held sufficient under the Act of 1867 if a bankrupt's application 
for a discharge was made before the discharge of the assignee. In re 
Smith, 9 Fed. Rep. 952. Or if made before the final disposition of the 
goods. In re Young, id. 146. 

It was held under the Act of 1867 that any creditor having a provable 
debt could apply to the court after a year and require the bankrupts to 
have the question of discharge determined. In re Fowler, 2 Low. 122; 
9 Fed. Gas. 615. 

The time within which a petition for a discharge may be filed Is con- 
sidered in the case cited. In re Watson et al., 29 Fed. Gas. 423. 

It was held under the Act of 1867 that the court had no power to grant 
a discharge when no assets have come into the hands of the assignee, and 
the bankrupt had allowed more than one year to elapse after the order 
of adjudication before making his application. In re Schenck, 5 N. B. R. 
9S; 21 Fed. Gas. 660 (1872). 

In this case the bankrupt having failed to show any reasonable cause 
for delay in asking for his discharge, the court ordered that the creditors 
have leave to prosecute suits as if he had never been adjudged a bank- 
rupt. In re Kelly, 3 Fed. Kep. 219. 

The fact that a prior petition for discharge had been made out of season 
did not affect the jurisdiction of the court over a subsequent petition. In 
re White, 18 N, B. R. 107; 29 Fed. Gas. 966. 

Where the bankrupt had delayed unreasonably in applying for a dis- 
charge, the court ordered that his creditors have leave to prosecute suits 
against him in like manner as if bankruptcy proceedings had not been 
insituted. In re Whiting, 29 Fed. Gas. 1065. 

Under the Act of 1867 the district court could allow a bankrupt to with- 
draw his petition for discharge and subsequently file another. In re 
Svenson, 9 Biss. 69; 23 Fed. Gas. 480. 

Justice Nelson, reversing Judge Blatchford, decided that under section 
29 of the Act of 1867, a bankrupt must apply for a discharge within one 



Bankrupts. 137 

year only in cases where, by reason of no debts having been proved, and 
no assets having come into the hands of the assignee, he can apply for a 
discharge within less than six months. In re Greenfield, 6 Blatchf. 287; 
10 Fed. Cas. 1165. 

A discharge was refused because the debtor had not applied for over one 
year after filing a voluntary petition, no assets having come into the 
hands of the assignee. Subsequently, he filed a new petition, and was 
adjudged a bankrupt; and the court decided that the former refusal to 
grant the discharge by reason of delay did not bar the new proceedings. 
In re Farrell, 5 N. B. R. 125; 8 Fed. Cas. 1078. 

t'nder the Act of 1867, where debts are proved and assets come into the 
hands of the assignee, the bankrupt need not apply for his discharge 
within one year from the adjudication. In re Holmes, 14' N. B. R. 209; 
12 Fed. Cas. 402. 

Judge Dillon held that a discharge might be granted under section 29 
of the Act of 1867 though it was not applied for within a year, where 
there are no assets, and the delay was satisfactorily accounted for. In 
re Donaldson, 2 Dill. 546; 7 Fed. Cas. 882. 

The court construed section 29 of the Act of 1867 as giving it discretion 
to grant or withhold a discharge, according to the circumstances of each 
case, when the application is made after the expiration of one year. In 
re Canady, 2 Biss. 75; 5 Fed. Cas. 2. 

An adjudication was had in 1868, and no assets came into the hands of 
the assignee. In 1877 the bankrupt filed a petition for his discharge. The 
court refused the discharge on the ground of laches. In re Potteiger, 19 
Fed. Cas. 1132. 

The court refused to grant a discharge to the bankrupt who had no 
assets except such as were exempt, and who failed to apply within a 
year after adjudication, saying: " The privilege of a discharge is given 
by section 33 only to a person who has in all things conformed to his 
duty under the Act, and who has conformed to all the requirements of 
the Act. One of these requirements Is that the application in this case 
be made within one year from the adjudication. The discharge is a 
favor granted on a compliance with the condition prescribed, and not a 
right." In re Martin, 2 N. B. R. 548; 16 Fed. Cas. 881. 

It was held under the Act of 1867 that the district court had no power 
under any circumstances to grant a discharge unless it was applied for 
within one year after adjudication. In re Sloan, 13 Blatchf. 67; 22 Fed. 
Cas. 326. To the contrary effect, see In re Vorback, 1 Pac. Law Rep. 100; 
28 Fed. Cas. 1278. 

A petition for a discharge was filed after the election of an assignee, 
but before he qualified. The court dismissed it as premature. In re 
Wheeler et al., 5 Fed. Rep. 299. 

An objection to the discharge of a bankrupt on the ground that his 
petition was prematurely filed cannot be waived, as it is the duty of the 
court to see that the law is complied v^th in all respects. Ibid. 



128 The Bankbuptct Law. 

Under the Act of 1867 the bankrupt was required to apply for dis- 
charge within one year from the adjudication. In re Wilmott, 2 N. B. R. 
214; 30 Fed. Cas. 87 (1868). 

The authority to apply for a discharge is derived entirely from the 
Bankrupt Act, and such application must be made within the time pre- 
scribed by law. In re Wood, 8 Ben. 237; 30 Fed. Cas. 422 (1875). 

Although the Act of July 26, 1876, extends the time for applying for a 
discharge until the final disposition of the cause, a delay of six years in 
making the application, if opposed, is cause for refusing it. In re Har- 
rison, 22 Fed. Rep. 528. 

The bankrupts gave, as a reason for not having applied for a discharge, 
that a petition for review to the circuit court as to a controversy that had 
arisen during the proceedings, which was returnable November 19, 1870, 
had not been brought to a hearing by January, 1872. Held, that as they 
showed no reason for the delay in bringing the petition to a hearing, the 
delay in applying for a discharge was unreasonable. In re Belden, 5 
Ben. 476; 3 Fed. Cas. 80. 

Who May Opxxise Discharge. 

A creditor who has not proved his debt cannot be heard to oppose the 
discharge of the bankrupt. In re King, 1 N. Y. Leg. Obs. 22; 14 Fed. Cas. 
507 (1842); In re Palmer, 18 Fed. Cas. 1019; In re Levy et al., 2 Ben. 169; 
15 Fed. Gas. 431. But see the following: 

It is not necessary to enable a creditor to oppose the discharge of a 
bankrupt that his debt should have been proved, if it is provable. In re 
Murdock, 1 Low. 362; 17 Fed. Oas. 1010. 

It was held in this case that any creditor could oppose a bankrupt's 
discharge, whether he had proven a debt in bankruptcy or not. In re 
Shepard, 1 N. B. R. 439; 21 Fed. Cas. 1250 (1868). 

Only creditors who have proved their debts, or are clearly shown to 
be bona fide creditors, can oppose the discharge of a bankrupt. In re 
Boutelle, 2 N. B. B. 129; 3 Fed. Cas. 1018. 

A creditor who has not proved his debt is not entitled to oppose a bank- 
rupt's discharge, nor one who was not injuriously affected by the acts 
complained of. In re Burk, Deady, 425; 4 Fed. Cas. 729. 

A creditor who has not proved his debt, but whose claim is taken up 
on the bankrupt's schedules, is competent to file specifications in oppo- 
sition to the discharge. In re Smith et al., 8 Blatchf. 461; 32 Fed Oas. 
390. 

Under the Act of 1841 a creditor whose claim was contingent and 
liquidated could appear in opposition to the discharge of a bankrupt. Ex 
parte Traphagen, 1 N. Y. Leg. Obs. 98; 24 Fed. Cas. 134 (1842). 

An equitable claim is sufficient to qualify the claimant to oppose a 
discharge. In re Tebbetts, 5 Law Rep. 259; 23 Fed. Oas. 826 (1842). 

A creditor having a deficiency judgment has a claim which will be 
released by a discharge, and can be heard on the question of discharge. 
In re Stansfleld, 4 Saw. 334; 22 Fed. Oas. 1061. 



Bankrupts. 129 

A creditor who has accepted a dividend from an unlawful assignment 
by the bankrupt may, nevertheless, object to his discharge, where he had 
no power to avoid such assignment. In re Kraft et al., 3 Fed. Rep. 892. 

A fiduciary creditor cannot object to the discharge of the banljrupt, 
inasmuch as his debt is not affected by the discharge. In re Elliott, 2 
N. B. R. 110; 8 Fed. Oas. 540. 

The fact that a debt was created by fraud does not authorize the 
creditor to oppose the bankrupt's discharge. In re Doody, 2 N. B. R. 201; 
7 Fed. Gas. 906. 

A debt that was created by a fraud is not covered by a discharge in 
bankruptcy, and It follows that such a debt cannot be urged in objection 
to the discharge. In re Clarke, 2 N. B. R. 110; 5 Fed. Oas. 942; In re 
Bashford, 2 N. B. R. 72; 2 Fed. Gas. 1004. 

When one creditor is about to withdraw his opposition to a discharge, 
the court may permit another to take it up and prosecute it. In re 
Houghton, 2 Low. 328; 12 Fed. Gas. 589. 

Under the Act of 1867 a creditor could come in at any time before the 
hearing of the application of the bankrupt's discharge, and, upon proving 
his claim, file objections to a discharge. In re Longest, 7 Biss. 477; 15 
Fed. Oas. 833. 

A creditor who was not included in the schedule, w^ho received no 
notice of the proceedings and did not prove his claim or receive any 
dividend, nevertheless cannot sue on his debt pending the discharge, but 
must appear and oppose the discharge. In re Archenbrown, 11 N. B. R. 
149; 1 Fed. Oas. 1084. 

A creditor to whom the bankrupt had executed a bond and mortgage 
was held competent to oppose his discharge, notwithstanding she had 
assigned the bond and mortgage to a third party to secure a debt, and 
subsequently assigned all her property and credits to a receiver appointed 
in pursuance of a creditor's bill. In re Ely, 5 Law Rep. 323; 8 Fed. Gas. 
598 (1843). 

After the return day of an order to show cause why the bankrupt 
should not be discharged, creditors sought to intervene in support of the 
objections filed by a creditor whose claim had been expunged. Their 
objections were dismissed. In re McDonald, 14 N. B. R. 4/77; 16 Fed. 
Gas. 36. 

A creditor who had taken judgment against the bankrupt after adjudi- 
cation sought to oppose the discharge. Held, that he could only be heard 
on filing a stipulation to satisfy his judgment of record if the discharge 
should be granted. In re Gallison et al., 2 Low. 72; 9 Fed. Oas. 1009. 

A judgment creditor of a bankrupt filed a creditor's bill against him 
and his wife asking that a conveyance to the latter be set aside as 
fraudulent. The bill was dismissed on its merits. 'This was held to be 
an estoppel against the plaintiff in that suit from opposing the defendant's 
discharge in bankruptcy on account of such conveyance. In re Antisdel, 
18 N. B. R. 289; 1 Fed- Oas. 1054. 
9 



130 The Bankeuptct Law. 

The bankrupt or any creditor may contest the right of a creditor who 
has not proved his debt to oppose the discharge of the bankrupt. In re 
Oohaus, 6 Fed. Cas. 12 (1842). 

A power of attorney in pursuance of form No. 26, under the Bank- 
rupt Act of 1867, was held not to authorize the attorney to oppose the 
bankrupt's discharge. Creditors v. Williams, 4 N. B. R. 579; 9 Fed. Cas. 
793. 

The term " persons Interested " in the Act of 1841 was held to mean 
those who have a direct interest in the matter immediately In controversy, 
and not merely a remote and contingent interest. A creditor may have 
a right to prove his debt without having a right to contest every question 
that arises in the course of the proceedings. Button et al. v. Freeman, 5 
Law Bep. 447; 8 Fed. Cas. 175 (1842). 

A creditor objected to the discharge of the bankrupt on the ground 
that the debt was contracted by fraud. The court decided that he could 
not be heard because, if the objection were true, the discharge would 
not afCsct the debt. In re Stokes, 2 N. B. R. 212; 23 Fed. Cas. 134. 

Pleadings and Practice. 

A pleading in opposition to a discharge must be specific. In re Hanson, 
2 N. B. R. 211; 11 Fed. Cas. 463. 

A court of bankruptcy will not entertain vague and general charges in 
opposition to a discharge. In re Tyrrel, 2 N. B. R. 200; 24 Fed. Cas. 479. 

A discharge will not be refused upon vague and general specifications. 
In re Son, 2 Ben. 153; 22 Ffed. Cas. 794. 

A specification in opposition to a discharge that a debt was created by 
fraud was stricken out on motion. In re Rosenfield, 1 N, B. R. 575; 20 
Fed. Cas. 1202. 

Creditors opposing a discharge can only give proof of acts mentioned 
in their specifications. In re Rosenfeld, 2 N. B. R. 116; 20 Fed. Cas. 1198. 

Under the Act of 1867, specifications in opposition to the discharge of 
the bankrupt were required to be precise and definite, and to set forth 
fully the particular facts relied upon. In re Eidom, 3 N. B. R. 106; 8 
Fed. Cas. 385. 

An averment that the aflBant believes that the bankrupt has a large 
amount of personal property which he did not put into his schedule of 
assets is too vague to be triable. In re Mclntire, 2 Ben. 345; 16 Fed. Cas. 
150. 

When a bankrupt has taken the required oath, his discharge should only 
be refused when some creditor has filed specifications of his opposition 
thereto, upon which an issue can be joined and the bankrupt can be 
heard in his own defense. In re Antisdel, 18 N. B. R. 289; 1 Fed. Cas. 
1054. 

Specifications in opposition to the bankrupt's discharge stated that he 
had destroyed books and papers with intent to defraud his creditors;, 
that he removed books from the district with like intent, and that he had 



"Bankrupts. 131 

bribed certain creditors to assent to liis discharge. These were held to 
be too vague to be triable. In re Freeman, 4 Ben. 245; 9 Fed. C'as. 750. 

Specifications in opposition to a discharge of the bankrupt on the ground 
that he had omitted property from his schedule and concealed it, should 
state what property he had concealed and omitted, and that the omissions 
were willful, fraudulent or negligent. In re Beardsley, 1 N. B. R. 304; 
2 Fed. Cas. 1175. 

It is not a sufficient specification of opposition to a discharge to allege 
that the bankrupt had concealed his effects or removed and destroyed 
books or writings. It must be stated what property was concealed, and 
what books and writings were destroyed. In re Condict, 19 N. B. R. 142; 
6 Fed. Cas. 267. 

Specifications of opposition to a discharge should be as exact as an In- 
dictment, and it is not sufficient to follow the words of the statute. In re 
Butterfield, 5 Biss. 120; 4 Fed. Cas. 919. 

Under section 29 of the Act of 1867, a specification in opposition to 
discharge that alleged that the bankrupt " fraudulently neglected and 
willfully omitted to include " certain specified property was held insuffi- 
cient, as there was no allegation of willful false swearing. In re Keefer, 
4 N. B. R. 389; 14 Fed. Cas. 172. 

Specifications in opposition to the discharge which stated that the bank- 
rupt had concealed, etc., part of his property were held to be defective 
in that they did not describe the property so concealed. In re Mauson, 2 
Ben. 332; 16 Fed. Cas. 1192. 

A specification in opposition to discharge alleged that the bankrupt had 
mutilated and falsified his papers. Judge Blatchford held his allegation 
to be defective because it did not charge that the act was done with 
intent to defraud his creditors. In re Marston, 5 Ben. 313; 16 Fed. Cas. 
857. 

Allegations in opposition to the discharge of a bankrupt must be 
distinct, precise and specific. Where false swearing is charged it must 
aver that the false swearing was willful and upon material fact. In re 
Rathbone, 2 Ben. 138; 2 Fed. Cas. 307. 

In specifications in opposition to the discharge of a bankrupt the allega- 
tions must be such as to give the bankrupt reasonable notice of the 
grounds relied upon. If false swearing is alleged, it must be charged to 
have been willful. In re Smith et al., 5 N. B. B. 20; 22 Fed. Cas. 398. 

Held, that before a creditor could have a trial under section 31 of the 
Act of 1867, his specification of objections must be sufficiently definite to 
enable the court to see that there was a question of fact to be determined 
upon evidence outside of the records. In re Waggoner, 1 Ben. 532; 28 
Fed. Cas. 1326. 

All grounds against the discharge to be relied upon by opposing 
creditors, except those that appear upon the face of the proceedings, which 
the court is bound to notice even though no creditor oppose, must be 
assigned in writing as specifications. In re Seabury, 10 N. B. R. 90; 21 
Fed. Cas. 900 (1874). 



133 The Bankeuptcy Law. 

A specification filed against a discliarge cliargiiig the concealment, by 
the bankrupt, from his assignee, of " certain papers," tlie papers being a 
receipt for notes on which judgments were recovered, was held bad as 
being vague and uncertain. In re Carrier, 47 Fed. Rep. 438. 

Certain creditors who had not proved their claims until after the re- 
turn day of the order to show cause why the bankrupt should not be 
discharged, thereupon opposed the discharge. It was held that they could 
only be heard on distinct specifications of fraud. In re Balmer, 3 Hughes, 
637; 2 Fed. Cas. 560. 

It is proper practice for a bankrupt to demur to the grounds of oppo- 
sition to his discharge when they are insuflBclent in law. In re Burk, 
Deady, 425; 4 Fed. Cas. 729. 

The burden is on the opposing creditors to show the discharge should 
not be granted to the bankrupt. In re Herdic, 1 Fed. Rep. 242; In re 
O'Kell, 2 N. B. R. 105; 18 Fed. Cas. 633 (1868). To the same effect, under 
the Law of 1841, Anon., 3 N. Y. Leg. Obs. 155; 1 Fed. Cas. 1016 (1845). 

The court may permit opposition to a discharge to be made at any time 
before the discharge is granted, but a creditor has no absolute right to 
oppose after the return day. In re Houghton, 2 Low. 328; 12 Fed. Cas. 
589. 

The trial on objections to the discharge of a bankrupt firm may be 
joint, but the verdicts and decrees must be several. In re George et al., 
1 Low. 409; 10 Fed. Oas. 193. 

Held, that a debtor owing both fiduciary and ordinary debts could not 
receive a discharge if oppos6d by any public or fiduciary creditor, and that 
there could be no certificate of partial discharge, or of general discharge 
with partial effect. In re Parker, 1 Pa. L. J. 370; 18 Fed. Cas. 1111. 

Where a bankrupt has both partnership and individual debts, a ma- 
jority in number and value of the aggregate of both was held suflicient 
to authorize his discharge under the Act of 1867, though a majority of 
either class did not assent. In re Morrell, 1 Hask. 542; 17 Fed. Cas. 779. 

A court, on a proper showing, will grant relief where creditors fail to 
file specifications in opposition to a discharge within ten days from the 
return day to show cause. In re Grefe, 2 N. B. R. 329; 10 Fed. Cas. 1184. 

Certain creditors made charges of fraud against a bankrupt, and asked 
for an order for his examination, and that the time to show cause why 
he should not be discharged be extended until after the examination. 
The register refused to make the order, but the court decided that it 
should have been made. In re Belden et al., 4 Ben. 225; 3 Fed. Cas. 79. 

Where the bankrupts had been examined by the assignee on their ap- 
plication for a discharge, and the creditors had had an opportunity to 
examine them, the court refused to grant the petition of the latter for 
another examination. In re Isador et al., 2 Ben. 123; 13 Fed. Cas. 67. 

It was held that the time fixed by rule 24 under the Bankrupt Act of 
1867, within which specifications could be filed in opposition to a dis- 
charge, could be enlarged by the court either before or after the expira- 
tion of the time. In re Levin, 7 Buss. 231; 15 Fed. Cas. 421. 



Bankrupts. 133 

Where the counsel opposing the discharge is prevented from being 
present at the hearing by a sudden accident, and the opposing creditors 
are thereby prevented from being represented, the court will, on a proper 
showing of merits, recall the decree of discharge and reopen the case. 
In re Dupee, 2 Low. 18; 8 Fed. Gas. 108. 

After a banlvrupt has applied for his discharge, and notices have been 
given, though tlie discharge has not been formally granted, a creditor 
will not be allowed to file charges in opposition. If the creditor dis- 
covered frauds, the true course is for him to require the bankrupt to 
take his discharge, and then petition for a revocation. In re Fowler, 2 
Low. 122; 9 Fed. Gas. 615. 

Judge Nixon of the United States district court for New Jersey decided 
that the creditors must take the initiative in opposing the discharge of a 
bankrupt, and that if they were silent, the court could not be expected 
to refuse the discharge. In re Clark et al., 19 N. B. R. 301; 5 Fed. Gas. 
8.j5. 

It was held in Maine that a creditor of a bankrupt, and accordingly his 
executor or legal representative, was not a competent witness on a hear- 
ing in opposition to his discharge; but where an executor is a trustee for 
the bankrupt, he may be a witness. In re Perley, 4 N, Y. Leg. Obs. 254; 
19 Fed. Gas. 255. 

A creditor of a bankrupt in voluntary proceedings is a competent wit- 
ness in support of objections to his discharge filed by other creditors. 
In re Day, 7 Fed. Gas. 217. 

A creditor who had made specifications in opposition to the discharge 
of the baiikrupt, which were not sustained in proof, v.'as held liable to 
the bankrupt for the costs of the hearing. In re Robinson et al., 3 N. B. 
R. 70; 20 Fed. Gas. 982. 

A creditor opposing the discharge of a bankrupt cannot move to dismiss 
the petition for want of prosecution, but should move to have it set 
down for a hearing. In re Sutherland, Deady, 473; 23 Fed. Gas. 457. 

After the day appointed for the hearing on an order to show cause 
why the bankrupt should not be discharged, a creditor cannot enter his 
appearance in opposition thereto. Ibid. 

Held, under the Act of 1867, that where a meeting under an order to 
show cause why the bankrupt should not be discharged was adjourned, 
the time to file objections ran from the adjourned day. In re Tallman, 
2 Ben. 404; 23 Fed. Gas. 678. 

On an order to show cause why the bankrupt should not be discharged, 
evidence of fraud in the creation of a debt is not admissible. In re 
Tallman, 2 Ben. 348; 23 Fed. Gas. 678. 

The court of bankruptcy may refuse a discharge of its own motion, in 
the absence of opposition by creditors, where the record shows that the 
bankrupt had done an act that would bar his discharge under the statute. 
In re Sohoo, 3 N. B. R. 215; 22 Fed. Gas. 780. 

Where the court sustains exceptions to specifications in certain respects, 
it will be deemed to have disallowed them in all other respects. In re 
Duncan et al., 18 N. B. R. 42; 8 Fed. Gas. 9. 



134 The Bankeuptct Law. 

Wben creditors of a bankrupt oppose his discharge, their appearance 
may be entered and specifications filed, although several adjournments of 
the case have been had after the return of the rule to show cause against 
the discharge. In re Seabury, 10 N. B. R. 90; 21 Fed. Cas. 900 (1874). 

The right to examine the bankrupt upon an application for a discharge 
extends to any creditor having a provable debt, whether it has been 
proved or not. In re Groome, 1 Fed. Rep. 464. 

A creditor cannot have a new trial upon specifications in opposition to 
the discharge of a bankrupt even if he can prove facts happening since 
the discharge which would be competent in evidence. In re Corwin, 1 
Fed, Rep. 847. 

The bankrupt had been allowed to amend his schedules so as to include 
property which had been omitted. Held, that this did not conclude any 
creditor from availing himself of any specifications of opposition to the 
discharge which he would have had if the amendment had not been made. 
In re Watts, 3 Ben. 1G6; 29 Fed. Cas. 433. 

In the case cited, the court held that it was its duty to examine the 
record before granting a discharge, and if it appeared that the bankrupt 
was not entitled thereto, to refuse it, although creditors interposed no 
objection. In re Wilkinson, 3 N. B. R. 286; 29 Fed. Gas. 1253. 

The bankrupt having made a second application for a discharge after 
the first had been denied, it was held that the testimony of a witness 
on the first hearing was competent evidence on the second, the witness 
having died in tlie meantime. In re Brockway, 12 Fed. Rep. 69. 

After issue joined on specifications against discharge and evidence 
taken, it is too late to amend by interposing a distinctly new^ ground of 
objection. In re Graves, 24 Fed. Rep. 550. 

Proofs taken on first application for discharge are competent on second 
application. Indeed, a refusal of discharge is conclusive against the 
bankrupt, and is a bar to a second application. In re Brockway, 23 Fed. 
Rep. 583. 

Creditors cannot object to the jurisdiction of the court in bankruptcy 
proceedings for the first time in opposition to the discharge. Allen v. 
Thompson, 10 Fed. Rep. 116. 

The bankrupt must conform to all the requirements of the law before 
he can receive his discharge. In re Orne, 1 N. B. R. 79; 18 Fed. Cas. 
823 (1867). 

The bankrupt applied for a discharge in 1868, and it was alleged in 
opposition that in 1861 he had made a fraudulent assignment, and that 
he still had in his hands a large amount of assets that he pretended to 
have included in that assignment. The court said: "Whether such a 
state of facts, if proved, would not amount to a fraud within the meaning 
of the twenty-ninth section which would defeat a discharge is a question 
which I am not inclined to pass upon finally by denying a motion like the 
present. Leave will accordinsly be given to take proofs in support of 
these averments." In re Moore, 2 Ben. 325; 17 Fed. Oas. 661. 



Bankhupts. 13a 

Objections to a discharge must rest upon the particulars designated in 
the statute as causes for refusing it. Such matters as concern only the 
regularity of the proceedings should be brought forward on the first 
notice, or after the decree of bankruptcy they will be regarded as waived. 
In re Banks, 1 N. Y. Leg. Obs. 274; 2 Fed. Gas. 755 (1^8). 

Objections were filed to the discharge of a bankrupt on the grounds that 
he had placed his property in the hands of his wife; that he had withheld 
his books and papers, and that he had been guilty of fraud. This was 
held to be too vague, but Judge Blatchford allowed the creditor to amend 
his specifications and referred the matter to a register tp take further 
testimony. In doing so he said: " The issues to be tried and decided 
will be the allegations in the specifications, and, as the bankrupt has 
taken and subscribed the oath required by section 29 of the Act (1867), the 
burden will be upon the creditor to show that the bankrupt has forfeited 
his title to the discharge by haying done some of the things specified in 
section 29, as grounds for withholding a discharge." In re Hill, 2 Ben. 
136; 12 Fed. Gas. 146. 

A creditor seeking to oppose the discharge of a bankrupt must observe 
the rules prescribed by the supreme court of the United States in that 
behalf. In re McVey, 2 N. B. R. 257; 16 Fed. Gas. 352. 

Judge Blatchford held under the Act of 1867 that the withdrawal of the 
bankrupt's appearance, and a default on a motion for an adjudication, 
would not estop them from denying the allegations in the petition In 
subsequent proceedings for their discharge. In re Lathrop et al., 3 N. B. 
R. 46; 14 Fed. Gas. 1175. 

It was claimed before Judge Drummond that the Act of 1867 did not 
authorize the discharge of an involuntary bankrupt. The judge decided, 
however, that if the bankrupt had acted in good faith, there was no 
reason why he should be compelled to go through the form of filing a 
voluntary petition. In re Glark, 2 Biss. 73; 5 Fed. Gas. 840. 

The court will lend its aid by process to a bankrupt to establish facts 
necessary to his discharge. In re Plerson, 10 N. B. R. 193; 19 Fad. Gas. 
668. 

It was held to be proper practice under the Act of 1867, where there 
was no opposition to the discharge of a bankrupt, to continue the pro- 
ceedings from day to day to suit his convenience. In re Sutherland, 
Deady, 473; 23 Fed. Gas. 457. 

An adjournment of the examination of a bankrupt having been had, it 
was held that proceedings upon an order to show cause why the discharge 
should not be granted should be continued until after such examination. 
In re Mauson, 1 N. B. R. 271; 16 Fed. Gas. 1194. 

Proceedings on an order to show cause why the bankrupt should not 
be discharged may properly be adjourned until the completion of an 
examination of the bankrupt then pending. In re Thompson, 2 Ben. 166; 
23 Fed. Gas. 1018. 

When there are no objections to a discharge of a bankrupt, it is proper 
practice for the court to allow the schedules to be amended to correct 



136 The Bankbuptcy Law. 

omissions, and to continue the case for furtlier proceedings. In re 
Townsend, 2 Fed. Rep. 559. 

Wliere tlie case on tlie return day of the notice to show cause against 
a discharge is adjourned without day, the proceedings 'are terminated 
and a new notice is required. Adjournments shouid be talien on the 
return day, and subsequently, in order that full examinations of the 
bankrupts and others may be had, if desired, on the question of discharge. 
In re Sechendorf, 2 Ben. 462; 1 N. B. R. 626; 21 Fed. Cas. 957 (1868). 

The banlirupt is entitled to his discharge only upon the showing he 
makes on the return of the rule to show cause against it. He should not 
be permitted to come in afterward and obtain it without further notice, 
and upon an entirely different showing. In re Seaman, 19 N. B. R. 332; 
21 Fed. Oas. 913 (1879). 

Sufficient Grounds of Opposition. 

It was not necessary that the bankrupt should have been convicted of 
any of the offenses made misdemeanors by section 44 of the Bankrupt 
Act of 1867 in order to make them available in opposition to a discharge. 
In re George et al., 1 Low. 409; 10 Fed. Cas. 193. 

A preference barred a discharge under the Act of 1867 only when the 
bankrupt contemplated bankruptcy, or had good grounds for believing 
that he was insolvent; but it was not necessary that the creditor receiving 
it should have known that his debtor vras insolvent. In re Gay, 1 Hask. 
108; 10 Fed. Cas. 105. 

A discharge was refused where the bankrupt, after he had stopped 
business, and was actually insolvent, conveyed parts of his property to a 
creditor to an amount exceeding the claim, and soon after filed a petition 
in voluntary bankruptcy. In re Pearce, 2 N. Y. Leg. Obs. 267; 19 Fed. 
Gas. 50. 

Where it is charged in opposition to the bankrupt's discharge that he- 
has not made a full disclosure of his property, the facts must be estab- 
lished by strong circumstantial evidence, in the absence of direct testi- 
mony. Ibid. 

A debtor made an assignment for the benefit of his creditors, and four 
days afterward filed a petition in bankruptcy. He denied on the hearing 
that when he made the assignment he had any intention of proceeding in 
bankruptcy, but, there being no other proof to that effect, his discharge 
was refused. In re Brodhead, 3 Ben. 106; 4 Fed. Cas. 201. 

The petitioner in involuntary bankruptcy had carried on an extensive 
business in his wife's name, but had kept no account of his dealings as 
her agent, and she had never paid him or agreed to pay him anything 
for his services. This was held to be sufficient ground for refusing the 
discharge. In re Hill, 2 Bon. .349; 12 Fed. Cas. 147. 

A discharge was refused where a bankrvipt had conveyed all of his 
individual property to his wife in consideration of a loan made twenty 
years previous and barred by the statute of limitations. In re Antisdel, 
18 N. B. R. 289; 1 Fed. Cas. 1054. 



Bankrupts. 137 

On the day that the Act of 1811 wen into effect, a debtor confessed 
judgment in favor of one of his creditors to an amount exceeding the 
value of his property. A discharge was refused though the debt was 
actually due. In re Chase, 22 Vt. U49; 5 Fed. Cas. 517 (1812). 

A bankrupt held a note against his father. Shortly before the com- 
mencement of proceedings, he took certain exempt property in part pay- 
ment, and then sold the note to a brother-in-law, receiving other exempt 
property in payment. A discharge was refused. In re Leavitt, 1 Hask. 
194; 15 Fed. Cas. 1*22. 

Under the Act of 1867 the court refused a discharge to a bankrupt who 
had made an assignment to secure a pre-existing indebtedness, while he 
was insolvent, and when the giving of the security was not a part of the 
original transaction. In re Foster, 2 N. B. R. 232; 9 Fed. Cas. 520. 

Where a debtor made several conveyances to his wife in January, and 
filed his voluntary petition in bankruptcy in May, it was held that he 
was not entitled to a discharge. In re Adams, 3 N. B. R. 561; 1 Fed. 
Cas. 83. 

The specification In opposition to the discharge of the bankrupt was 
that he had concealed property in the hands of his brother. He stated on 
examination that the money had been paid to his brother in discharge 
of an indebtedness; but the proof of the existence of the indebtedness was 
unsatisfactory. The discharge was refused. In re Goodrldge, 2 N. B. 
R. 324; 10 Fed. Oas. 613. 

A bankrupt who has possession of any property or books of account 
of the firm of which he was a member, and fails to disclose them to his 
assignee in separate proceedings, _is not entitled to a discharge. In re 
Beal, 1 Low. 325; 2 Fed. Oas. IIOt". 

An act that would otherwise prevent the discharge of a bankrupt can- 
not be excused because it was done on the advice of counsel, except 
under circumstances that negative any possibility of bad faith. In re 
Finn, 8 N. B. R. 525; 9 Fed. Cas. 72. 

An alien who has made preferences while residing out of the United 
States, and subsequently came within this country and filed a petition 
In bankruptcy, is not entitled to a discharge. In re Goodfellow, 1 Low. 
510; 11 Fed. Oas. 594. 

A firm had made a general assignment for the benefit of its creditors, 
and the assignee had set apart some of the assets to one of the partners 
as exemptions. Later, the partners commenced proceedings in voluntary 
bankruptcy. The court held that under the circumstances a discharge 
could not be granted. In re Croft et al., 8 Biss. 188; 6 Fed. Cas. 838. 

A discharge was refused to a bankrupt who procured the assent of 
one of his creditors by a promise to pay him " all he ever owed him when 
he got able." In re Ekings, 6 Fed. Rep. 170. 

The bankrupt had received a part of the profits of a firm, his interest 
standing in his wife's name. He stated in his Inventory that he had no 
assets. It was held that he was guilty of perjury and concealment. 



138 The Bankeuptcy Law. 

and a discharge was refused. In re Ratlibone, 1 N. B. R. 536; 20 Fed. 
Cas. 314. 

A decree by a state court that a conveyance of real estate by the bank- 
rupt to his wife was void was held not to be conclusive in bankruptcy; 
but at the same time the court of bankruptcy held that the conveyance 
was made with intent to defraud his creditors, and thereupon denied a 
discharge. In re Sumner, 10 Ben. 34; 23 Fed. Oas. 382. 

The fact that the bankrupt had contracted fiduciary debts before the 
passage of the act will not prevent his discharge as io other debts, but 
the misapplication of trust funds after the passage of the act is sufficient 
to defeat a discharge from any debt. In re Tebbetts, 5 Law Rep. 259; 
23 Fed. Cas. 826 (1842). 

In the case cited, the court refused to grant a discharge where the 
assent of one of the creditors was procured by a pecuniary considera- 
tion, notwithstanding it was paid by a third person. In re Whitney et 
al., 2 Low. 455; 29 Fed. Cas. 1068. 

Under section 29 of the Act of 1867, it was held to be a sufficient 
reason for refusing a discharge that the bankrupt had concealed the 
title of property by placing it in some other person's name. This deci- 
sion was made in a case where the bankrupt had made a pretended sale 
which was declared fraudulent by a state court, and had failed to enter 
the property covered by the fraudulent sale, on his schedule. In re Huss- 
man, 2 N. B. R. 737; 12 Fed. Cas. 1078. 

Setting forth a false and fictitious debt in a schedule is an admission 
of it against his estate, and a bar to a discharge under the Act of 1867; 
but the burden is on the objecting creditors to show that such debt was 
false and fictitious. In re Orcutt, 4 N. B. R. 538 (Quarto 176); 18 Fed. Cas. 
757. 

A bankrupt who had suffered a judgment to be taken against him by 
default in favor of his brother, and all his property sold and the pro- 
ceeds applied upon the judgment, was denied a discharge under sub- 
division 9 of section 5110, R. S. In re Pitts, 8 Fed. Rep. 263. 

A discharge was refused under the Act of 1807 (section 5110, R. S.), 
where the bankrupt had lost money by gaming, and thereby reduced his 
assets. In re Signer, 20 Fed. Rep. 236. 

Where a creditor had consented to the discharge of a bankrupt for a 
valuable consideration, it was held that he could not set up the transac- 
tion in opposition to a discharge, but that other creditors could do so. 
In re Bright, 9 Fed. Rep. 491. 

A bankrupt who loses at gambling is not entitled to a discharge, re- 
gardless of whether his winnings have exceeded his losings. So held 
under the Act of 1867. In re Stewart, 21 Fed. Rep. 398. 

A discharge was refused to a bankrupt who had sold a piano which 
he had taken up on his schedule and paid the proceeds to his attorneys 
in the bankruptcy proceedings. In re Jessup, 19 Fed. Rep. 94. 

Under the Act of 18U7, a discharge was refused to a bankrupt who 
had lost property In gaming, notwithstanding he acquired it in the same 



Bankeupts. 13D 

way, and had no other occupation but that of gambling. In re Mar- 
shall, 1 Low. 462; 16 Fed. Cas. 827. 

Insufficient Grounds of Opposition. 

The fact that a bankrupt had contracted a debt of a fiduciary character 
before the passage of the Bankrupt Act was held not to prevent his 
discharge as to other debts. In re Lord, 5 Law Rep. 258; 15 Fed. Cas. 
872 (1842). 

Held, under the circumstances of the case, that conveyances made 
by a bankrupt to his sons more than eight months prior to the filing of 
his petition were not a sufficient reason for refusing a discharge. In 
re Jewett, 3 Fed. Rep. 503. 

A discharge will not be refused on account of conveyances made 
long before bankruptcy, where there was not evidence of a willful con- 
cealment of property. In re Boynton, 10 Fed. Rep. 277. 

It is mot a sufficient reason for refusing a discharge that the bank- 
rupt made accidental omissions from his schedules. In re Boynton, 10 
Fed. Rep. 277. 

A discharge will not be denied to a bankrupt on account of acts or 
omissions by a former partner. In re Heller, 9 Fed. Rep. 373. 

The payment of attorney's fees by the bankrupt was held not to be 
such a preference as would bar a discharge under the Act of 1867. In 
re Boynton, 10 Fed. Rep. 277. 

A creditor vnll not be allowed to object to the bankrupt's discharge 
by reason of the omission of his debt from the schedule with his own 
consent. In re Whetmore, Deady, 585; 29 Fed. Cas. 921. 

It was held not to be necessarily a ground for refusing a discharge 
that the bankrupt had made gifts to his wife and daughter previous to 
the commencement of proceedings, notwithstanding they were voidable 
by his creditors. In re Warne, 12 Fed. Rep. 431. 

It is not an evidence of fraud on the part of a bankrupt that he 
omitted certain claims from his schedule which were in fact worthless. 
In re Pearce, 2 N, Y. Leg. Obs. 267; 19 Fed. Cas. 50. 

A specification in opposition to discharge on the ground that the bank- 
rupt had transferred certain shares of stock to one of his creditors was 
overruled upon proof that the bankrupt in fact had no interest in the 
stock in question. In re Penn et al., 5 N. B. R. 288; 19 Fed. Gas. 155. 

It was objected to the discharge of a bankrupt that he had omitted 
the names of three creditors from his schedule. It appearing that the 
omission was with their consent, the objection was overruled. In re 
Needham, 1 Low. 309; 17 Fed. Cas. 1275. 

Ten years before the passage of the Bankrupt Act, the bankrupt 
had conveyed property to his wife, and he omitted this property from 
his schedules. It was not established that he had any Interest in the 
property by a secret trust. These facts were held not to be sufficient 
to justify the court in refusing a discharge. In re Murdock, 1 Low. 362; 
17 Fed. Cas. 1010. 



140 The BANKHurTCY Law. 

The bankrupts had paid certain creditors to vote for a composition. 
The composition failed, and under furtlier proceedings, the bankrupts 
applied for a discharge. The court decided that an act done during the 
proceedings for a composition, notwithstanding it came within section 
29 of the Act of 1867, could not be set up to prevent a discharge. In re 
Morris et al., 19 N. B. R. Ill; 17 Fed. Cas. 785. 

The bankrupt had retired from business many years before, having 
sold all his property, but leaving some of his debts unpaid. Thereafter 
he lived upon his salary as a clerk, and paid his rent and other ex- 
penses therefrom. The court held that the creditors to whom he had 
become indebted while engaged in trade could not take advantage of 
these payments in opposition to his discharge. In re Locke, 1 Low. 293; 
15 Fed. Cas. 734. 

It was held under the Act of 1841 that where a debtor in contempla- 
tion of bankruptcy had confessed judgments in a large amount for 
which executions were issued and all of his pToperty sold he ,was en- 
titled to a discharge with the assent of a majority in interest of his 
creditors who had not been so preferred. Anon., 1 N. Y. Leg. Obs. 349; 
1 Fed. Cas. 1015 (1843). 

After the passage of the Act of 1841, but before it went into operation, 
certain debtors made an assignment for the benefit of preferred cred- 
itors. It was held that this would not prevent their discharge. In re 
Ohadwick et al., 5 Law Rep. 457; 5 Fed. Gas. 398 (1842). 

It was held under the Act of 1867, that if the formal requirements of 
the law had been complied with, a discharge could only be refused on 
some ground set forth in section 29. In re Elliott, 2 N. B. R. 110; 8 Fed. 
Cas. 540. 

A bankrupt sold property for cash to procure means to defray the 
expenses of the proceedings. The property was sold for a fair price, 
and the amount realized was reasonable. This was held not to be ground 
for refusing a discharge. In re Keefer, 4 N. B. R. 389; 14 Fed. Cas. 172. 

An allegation in opposition to a discharge that the bankrupt swore 
falsely in his examination must be proved beyond a reasonable doubt. 
In re Moore, 1 Hask. 134; 17 Fed. Cas. 663. 

It was held under the Act of 1867 that transactions prior to the passage 
of the law could not be heard in opposition to the discharge of a bank- 
rupt. In re Moore, 1 Hask. 134; 17 Fed. Cas. 663. 

The fact that a bankrupt omitted an equity of redemption from his 
schedule will not prevent his discharge. In re Moore, 1 Hask. 134; 17 
Fed. Cas. 663. 

The court granted a discharge under the Act of 1867 over an objec- 
tion specifying an act of bankruptcy committed a long time before the 
passage of the bankrupt law. In re Keefer, 4 N. B. R. 389; 14 Fed Cas. 
172. 

Construing section 29 of the Act of 18G7, Judge Dillon said: "But 
I am not prepared to hold that merely for not taking a too hopeful 
view of his affairs, and for making payments in the course of his 



Bankkupts. 141 

business with the hona fide, though mistaken, expectation that he can 
keep along without going Into bankruptcy, there being no actual design 
to favor or prefer, the intention of congress was to deprive the party 
of the right to his discharge, if otherwise entitled to it." In re Brent, 
2 Dill. 129; 4 Fed. Cas. 59. 

To justify the court in refusing a discharge under the Act of 1841, 
it was held that the creditors must show that the petitioner has con- 
cealed property. It is not sufficient to show that he had owned prop- 
erty in past years, and that he had managed it improvidently and 
squandered it. In re Bailey, 1 N. Y. Leg. Obs. 18; 2 Fed. Cas. 358 (1842). 

Judge Nelson decided under the Act of 1867 that giving a preference 
more than four months before the proceedings in bankruptcy, or making 
a transfer more than six months before, would not prevent the dis- 
charge of the bankrupt. In re Harper, 6 Chi. Leg. News, 279; 11 Fed. 
Cas. 572. 

Payments of money or transfers of property to preferred creditors 
made before the passage of the Act of 1867, though fraudulent, were 
held not to bar the discharge of the bankrupt. In re Hollenshade, 2 
Bond, 210; 12 Fed. Cas. 340. 

The Act of 1867 does not authorize the court to refuse a discharge 
for a fraud committed before the passage of the Act. In re Jones, 2 
Low. 451; 13 Fed. Cas. 932. 

When the bankrupts had suffered great losses by trusting their busi- 
ness to a relative, who had defrauded and deceived them, and there 
was nothing to show complicity on their part, the court decided that 
discharges must be granted to them. In re Beatty et al., 3 Ben. 233; 3 
Fed. Cas. 8. 

When one partner assuming to act for the firm gave a fraudulent 
preference without the knowledge or assent of the other partner, it was 
held that the latter should not be refused a discharge. In re Leavitt, 
1 Hask. 194; 15 Fed. Cas. 122. 

Where a preferred creditor abandons his security and proves his debt, 
the preference is condoned and cannot be urged in opposition to the 
bankrupt's discharge. In re Conner et al., 1 Low. 532; 6 Fed. Cas. 312. 

A bankrupt swore on examination that he had paid certain creditors 
In full a short time before filing his petition. It was held that this was 
not sufficient ground for withholding a discharge. In re Burgess, 3 N. 
B. R. 196; 4 Fed. Cas. 725. 

Transactions that occurred long before the passage of the Bankrupt 
Act of 1867, were held to be available for use in opposition to the dis- 
charge of the bankrupt. In re Oretiew, 5 N. B. E. 423; 6 Fed. Cas. 810. 

Payments to domestic servants cannot be urged in opposition to a 
discharge, nor payments to an attorney for past and future services. In 
re Rosenfeld, 2 N. B. K. 116; 20 Fed. Cas. 1198. 

The burden of proof is on creditors opposing a bankrupt's discharge 
to show that assets have been concealed. Mutilation of bankrupt's 
books is not conclusive of fraud, but the circumstances may be ex- 
plained. In re Noonan, 18 Fed. Cas. 297 (1869). 



143 The Bankeuptct Law. 

The omission from a schedule of property not known by the bankrupt 
as belonging to him Is not a " concealment," and Is no bar to a discharge. 
In re Parker, 4 Biss. 501; 18 Fed. Cas. 1110. 

It appeared that the bankrupt had paid the attorney's fees of certain 
creditors, but that before such payment was made or promised, they 
had stated that they would not oppose his discharge. It was held that 
the facts were not sufficient to prevent the discharge. In re Mauson, 2 
Ben. 412; 16 Fed. Cas. 1193. 

Under the Law of 1867 a fraudulent conveyance or preference made 
before the passage of the Act were not available In opposition to a dis- 
charge. In re Rosenfield, 1 N. B. R. 575; 20 Fed. Oas. 1202. 

There is nothing in the Bankrupt Act of 1867 that prohibits a debtor 
from requesting a creditor to file a petition against him to be adjudged 
a bankrupt. In the absence of fraud, such request will not constitute 
a bar to the bankrupt's discharge. In re Ordway, 19 N. B. B. 171; 18 
Fed. Oas. 760. 

Under the Act of 1867 there might be a preference which would sup- 
port proceedings in Involuntary bankruptcy, and yet not bar the dis- 
charge of the debtor. In re Pierson, 10 N. B. R. 107; 19 Fed. Cas. 661. 

The execution of an assignment for the benefit of creditors less than 
a month before the debtor filed a petition 1^ bankruptcy, was held not to 
bar a discharge in the absence of actual fraud, under the Act of 1867, 
notwithstanding it was an act of bankruptcy under section 39. In re 
Pierce et al., 3 N. B. R. 258; 19 Fed. Oas. 680. 

The property of the bankrupt was under attachment when he filed 
his petition, and he subsequently confessed judgment and permitted the 
property to be sold. This was held not to be an objection to his dis- 
charge under the Act of 1841. In re Reed, 3 N. Y. Leg. Obs. 262; 20 
Fed. Oas. 417 (1844). 

A discharge will not be refused for the reason that a debt was created 
through the frauds and false representations of the bankrupt. In re 
Bathbone, 2 Ben. 138; 20 Fed. Cas. 307. 

It was held not to be a sufficient ground for refusing the discharge of 
a debtor that he had wasted his estate, and made fraudulent purchases. 
In re Rodgers, 1 Low. 423; 20 Fed. Oas. 1104. 

The omission of a debt from a schedule, which was not intentional, is 
not sufficient ground for refusing a discharge. In re Tebbetts, 5 Law 
Rep. 259; 23 Fed. Cas. 826 (1842). 

it was held not to be a sufficient ground for refusing a discharge 
under the Act of 1867, that the bankrupt had paid the attorney's, notary's 
and register's fees of certain creditors. In re Venson, 9 Biss. 69; 23 Fed. 
Oas. 480. 

The mere omission of property from the bankrupt's schedule, with- 
out Intent to conceal or defraud, was held not to be sufficient ground for 
refusing a discharge. In re Smith, 1 Woods, 478; 22 Fed. Cas. 412. 

Whether the specification be that the bankrupt has concealed his effects 
or has sworn falsely to his inventory, the act must appear to be In- 



Bankhupts. 143 

tentional in order to preclude a discharge. In re Wyatt, 2 N. B. R. 288; 
30 Fed. Cas. 719 (1868). 

Wliere a discharge was opposed on account of a fraudulent act of the 
bankrupt, it was held that such act must have occurred within such 
time before the adjudication as to malie it an act of banliruptcy under 
the bankrupt law. In re Woolf skill, 5 Saw. 385; 30 Fed. Oas. 415 (1879). 

The discharge of the bankrupts was opposed on the ground that the 
debt was created while they were acting in a fiduciary capacity. It 
was held that this was no ground for withholding a discharge, and that 
the creditor must show the fact in reply to a plea of the discharge in a 
suit on her claim. In re Tracy et al., 2 N,. B. R. 298; 24 Fed. Oas. 112. 

" Proper Books of Account." 

What constitute proper books of account is considered at length in 
the case cited. In re Smith, 16 Fed. Rep. 465. 

Failing to enter amounts withdrawn for stock speculation is ground for 
refusing a discharge, for not keeping proper books of account. In re 
Hunt, 26 Fed. Rep. 739. 

The court refused to permit amendments to specifications in opposi- 
tion to a discharge of the bankrupt for the purpose of opposing the 
discharge of one of the partners who had nothing to do with the books, 
which were kept by the other partners to whose discharge he had con- 
sented. In re Smith, 16 Fed. Rep. 465. 

Incorrect method of bookkeeping, and failing to enter items of sales for 
cash, but ascertaining total cash sales each day by deducting amount 
on hand each morning, was held to be not such improper bookkeeping 
as would prevent a discharge under the Act of 1867. In re Graves, 24 
Fed. Rep. 550. 

Where imperfections and omissions in the bankrupt's books of ac- 
count are relied upon in opposition to a discharge, they should be clearly 
specified. If the books are such that his financial condition can be ascer- 
tained with substantial accuracy, the discharge should not be refused. 
In re Frey, 9 Fed. Rep. 376. 

A discharge was denied where the bankrupt had kept no cash-book 
or invoice-book, and where the books that he had kept failed to ex- 
plain satisfactorily the condition of his business affairs. In re Brock- 
way, 12 Fed. Rep. 69. 

A failure to enter notes and drafts of a large amount which the banlc- 
rupts had received and discounted was held to be sufficient reason for 
vrithholding a discharge. In re Williams, 13 Fed. Rep. 30. 

The bankrupt had sworn that he had not kept certain books of ac- 
count, but later he found and produced them. In the absence of evi- 
dence that his false swearing was intentional, a discharge was granted. 
In re Warne, 10 Fed. Rep. 877. 

The bankrupt, who was a member of a firm, had omitted from the 
firm books certain accommodation notes given by him individually, and 
also the receipt of certain money from an agent of the firm, which, how- 



144 The Bankeuptcy Law. 

ever, were entered on a separaie book. The omissions were held not to 
be sufficient to prevent his discharge. In re Jewett, 3 Fed. Rep. 503. 

The books that were produced did not constitute proper books of ac- 
count, but it appeared that one wf the bankrupts, who had absconded, 
took with him the casli-book. Held, that the facts did not constitute a 
sufficient objection to a discharge. In re Kraft at al., 4 Fed. Rep. 523. 

Held, under the Act of 1867, that the existence of obscurity in the 
books of a bankrupt did not offer any reason to refuse a discharge, when' 
the obscurity was explained, and the entries were made without fraud or 
deceit. In re Townsend, 2 Fed. Rep. 559. 

In the case cited, a discharge was refused for a failure to keep proper 
books of account, notwithstanding such books as the bankrupt kept, 
with the invoices on file, might have enabled an accountant to make out 
proper statements. In re Bernia, 5 Fed. Rep. 723. 

After selling out his store the bankrupt engaged in the business of 
buying and selling apples, partly on his own account and partly in 
connection with another. His omission to keep books of account was 
held to deprive him of his right to a discharge. In re Tyler, 4 N. B. R. 
104; 24 Fed. Oas. 457. 

The bankrupts were dealers in bark and lumber. They had no other 
cash-book but their bank account, but each member of the firm kept a 
book showing disbursements, and to whom made. It was held that these 
constituted proper books of account. In re Marsh et al., 19 N. B. R. 
297; 16 Fed. Gas. 792. 

Under the Act of 1867, ' a failure by a merchant to keep proper books 
of account was a ground for refusing a discharge, whether or not the 
omission was with fraudulent intent. In re Solomon, 2 N. B. R. 285; 22 
Fed. Oas. 787. 

A bankrupt kept his cash account on slips, and only entered the footings 
of these slips on his cash-book, so that it was impossible to tell for what 
purpose the items were disbursed. These were held not to be proper 
books of account. In re Perry et al., 19 Fed. Gas. 264. 

A retail merchant testified that he kept no invoice-book, but that he 
preserved his invoices carefully so that a complete account of all goods 
received by him could be made out, and also kept a set of books in usual 
form. The court overruled an objection to his discharge on the ground 
that he had not kept proper books of account. In re Reed, 12 N. B. R. 
390; 20 Fed. Gas. 417. 

Some years before the passage of the Bankrupt Act o^ 1841, the debtor 
had committed a fraud in an assignment for the benefit of his creditors. 
It was held that this would not bar his discharge under that act. In 
re McFarlan, IG Fed. C&s. 89 (1812). 

A bankrupt who had not kept a cash-book, journal or ledger was re- 
fused a discharge on the ground that he had not kept proper books of 
account. At the same time it was held that the absence of the cash- 
book alone would not be sufficient to prevent a discharge if receipts and 
payments appeared from other books. In re Hannahs, 8 Ben. 475; 11 
Fed. Gas. 445. 



Bankeupts. 145 

A discharge was refused where the bankrupt was a member of a firm 
which had sold Its stock to another firm consisting of the same partners 
with one other, and had made no entry of the sale on the books of the 
old firm. .In re Colcord, 2 Hask. 455; 6 Fed. Oas. 33. 

A discharge will not be refused on account of accidental omissions 
of entries in the bankrupt's books of account. In re Burgess, 8 N. B. R. 
196; 4 Fed. Cas. 725. 

The books of a bankrupt firm did not show the condition of accounts 
between the partners. A discharge was refused. In re Jorey et al., 2 
Bond, 336; 13 Fed. Cas. 1122. 

The bankrupts had kept no cash-book for ten months and it was 
impossible to ascertain their condition from their books of account. A 
discharge was refused. In re Bellis et al., 4 Ben. 53; 3 Fed. Cas. 135. 

" Proper books of account " are such as will enable a competent ac- 
countant to ascertain the condition of the bankrupt's affairs. In re 
Wartenbach, 11 N. B. R. 61; 2 Fed. Cas. 956. 

A discharge was refused to a bankrupt who was a tradesman and 
who had not kept an invoice or stock-book. In re White, 2 N. B. R. 590; 
29 Fed. Cas. 966. 

The bankrupt had engaged for a short time in the business of buying 
and selling tobacco and cigars, and in that business had kept no boolfs 
of account. The business had been closed out, and there were no debts 
due to or fronl him arising from that business. Held, that the fact 
that he had not kept books of account could not be urged against his 
discharge. In re Freldberg, 19 N. B. B. 302; 9 Fed. Cas. 815. 

S. and B. were associated in business under an agreement which was 
held not to amount to a partnership. B., the bankrupt, kept proper 
books of account with his customers, but nothing to show the state of 
his accounts with S. A discharge was refused. Later, a pass-book was 
produced in which the transactions between B. and S. were entered 
every day. Thereupon a discharge was granted. In re Blumenthal, 18 
N. B. B. 555, 575;- 3 Fed. Cas. 757, 758. 

By the twenty-ninth section of the Bankrupt Act of 1867, it was pro- 
vided that no discharge shall be granted if the bankrupt being a mer- 
chant or tradesman has not subsequently to the passage of the act kept 
proper books of account. If account-books are not kept the discharge 
must be refused even though such failure was the result of no intent to 
defraud creditors or to conceal the condition of his business. The keep- 
ing of mere memorandum-books which fall to show particulars and con- 
struction of debts due to and by the creditors and debtors of the bankrupt 
is not keeping of such proper books as are required by the twenty-ninth 
section of the Act. In re Numan, 1 Chi. Leg. News, 123; 18 Fed. Cas. 96. 

The bankrupts had failed to enter on their books several important 
transactions relating to their property. A discharge was refused. In re 
Grieves et al., 15 Alb. L. J. 167; 11 Fed. Oas. 3. 

10 



146 The Bankhtjptot Law. 

Where a trader's books were not posted to date, and the accounts were 
kept on separate pieces of paper, a charge of failure to keep proper 
books of account will not be sustained. In re Hammond et al., 1 Low. 
381; 11 Fed. Cas. 380. 

The bankrupt kept a wharf where he sold wood and coal. Books of 
account were kept by a skillful clerk, but for some time previous to liis 
discharge he had no cash account. A discharge was refused. In re 
Littlefleld, 1 Low. 331; 15 Fed. Cas. 624. 

The burden of proof is on a creditor who opposes a discharge on the 
ground that the bankrupt had not kept proper books of account. In ro 
Banks, 1 N. Y. Leg. Obs. 274; 2 Fed. Cas. 755 (1843). 

Vague parol statements about the condition of the bankrupt's books 
of account will not Justify the court in refusing a discharge; the evi- 
dence must be conclusive. In re Batchelder, 1 Low. 373; 2 Fed. Cas. 1012. 

Notwithstanding only one partner was responsible for the failure to 
keep proper books of account, a discharge will be refused to both. In 
re George et al., 1 Low. 409; 10 Fed. Oas. 193. 

A memorandum-book in which the bankrupt kept the time of em- 
ployees was held not to be " proper books of account " under the Act of 
1867. In re Garrison, 5 Ben. 430; 10 Fed. Cas. 49. 

"Proper books of account" need not be in any particular form; but 
they must be sufficient to show the condition of the bankrupt's affairs. 
In re Gay, 1 Hask. 108; 10 Fed. Oas. 106. 

A bankrupt who conducted a strictly cash business, which had been 
closed out several months before the filing of his petition, was granted 
a discharge, notwithstanding he had failed to keep any books of ac- 
count In re Keach, 1 Low. 335; 14 Fed. Cas. 156. 

It will not excuse a debtor who has failed to keep proper books of 
account that the failure was entirely due to his bookkeeper. In re Ham- 
mond et al., 1 Low. 381; 11 Fed. Cas. 380. 

Books of account were held to be sufficient that presented a true ac- 
count of his business, and not of his personal expenses. In re McCarthy, 
15 Alb. L. J. 298; 15 Fed. Cas. 1252. 

The cash-book of the bankrupt firm failed to show in an intelligible 
or proper manner the nature and character of the receipts and disburse- 
ments entered in it. A discharge was refused. In re Mackay et al., 4 N. 
B. R. 06; 16 Fed. Oas. 156. 

Miscellaneous. 

When a bankrupt's discharge is refused, a creditor who has provea 
his debt is restored to his former rights and remedies. Dingee v. Becker, 
9 N. B. K. 508; 7 Fed. Oas. 724. 

A discharge in bankruptcy cannot be set up in support of an injunc- 
tion to restrain the enforcement of n judgment in a state court; it should 
have been pleaded in bar to the action. Goodrich v. Hunton, 2 Woods, 
137; 10 Fed. Oas. 608. 



, Bankrupts. 147 

A discharge in bankruptcy after an attacliment, but before judgment, 
can be pleaded in bar, so as to prevent the attaching creditor from per- 
fecting his attachment by a judgment. Ex parte Foster, 2 Story, 131; 
9 Fed. Cas. 508. 

A verified answer in a suit in equity by the banlcrupt may be used 
against him in bankruptcy. Anon., 1 N. Y. Leg. Obs. 34:9; 1 Fed. Cas. 1015 
(1843). 

The record is conclusive of the jurisdiction of a court In bankruptcy 
unless attacked by a direct proceeding. Until the decree has been set 
aside in such a proceeding, the discharge of a bankrupt cannot be op- 
posed on the ground that the statements in the petition as to residence 
are untrue. In re Ives et al., 5 Dill. 146; 13 Fed. Cas. 181. 

A discharge does not in any manner reinvest the bankrupt with con- 
trol of the estate which he has surrendered in bankruptcy. In re 
Anderson, 2 Hughes, 378; 1 Fed. Oas. 881. 

The presumption Is that a bankrupt upon his discharge has taken the 
final oath required, when such oath is not found of record. In re Young, 

3 Dill. 239; 30 Fed. Cas. 865 (1875). 

A plea of discharge under the Act of 1841 which set out the certifi- 
cate and discharge was held to be good. White v. Howe et al., 3 McLean, 
291; 29 Fed. Cas. 1019 (1842). 

A discharge In bankruptcy is waived by failure to plead it Fowle v. 
Parke, 48 Fed. Rep. 789. 

Courts of law or equity will not take notice of a discharge in bank- 
ruptcy as a defense unless It is pleaded. It cannot be taken advantage of 
by motion and affidavit. Fellows et al. v. Hall et al., 3 McLean, 281; 8 
Fed. Cas. 1132 (1843). 

The discharge of an assignee in bankruptcy does not deprive the court 
of its jurisdiction to grant a discharge to the bankrupt. In re Forsyth, 

4 Fed. Kep. 629. 

In an action at law the defendant pleaded a discharge In bankruptcy. 
The reply set forth that the court of bankruptcy had no jurisdiction. 
The court held that the court had general jurisdiction in bankruptcy, 
and as the record showed jurisdiction, it should not be impeached when 
introduced collaterally. The plaintiff then offered evidence of fraud 
under a general allegation, and the court held that specific acts must 
be alleged so as to give notice to the bankrupt. Lathrop v. Stewart, 6 
McLean, 630; 14 Fed. Cas. 1185 (1855); Lathrop v. Stuart, 5 McLean, 167; 
14 Fed. Cas. 1185 (1850). 

An omission to enter an order refusing a discharge may be corrected 
nunc pro tunc, but not to the prejudice of any intervening rights of third 
persons. In re Drlsco, 14 N. B. R. 541; 2 Low. 430; 7 Fed. Cas. 1092, 
1104. 

[As to a discharge by proceedings for a composition, see notes under section 13, subbead, 
"EfEeotof Confirmation."] 



148 The Bankeuptcy I»aw. 

Eevocatioit. 
,'§ 15. Discharges, when Eevoked.— (a.) The judge may, upon the 
application 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 knowl- 
edge of the fraud has come to the petitioners since the granting of the 
discharge, and that the actual facts did not warrant the discharge. 

A discharge under the Act of 1867 was annulled upon evidence that 
the consent of a creditor was obtained by a promise that his debt should 
be paid in full. In re Marshal, 3 Fed. Rep. 220. 

A corporation was declared bankrupt upon its own petition. A year 
later a stockholder who had knowledge of the facts, filed a petition to 
have the proceedings vacated. The petition was denied on the ground 
of laches. In re Bait. Co. D. Ass'n, 2 Hughes, 250; 2 Fed. Oas. 572. 

H. received his final discharge in May, 1869. In February, 1871, two 
creditors applied to have the discharge set aside, and proved that H. 
had willfully omitted them from his schedules of creditors and liabilities, 
and that they had no knowledge of said fact until after the granting of 
the discharge. The discharge was set aside. In re Herrick, 7 N. B. R. 
341; 12 Fed. Oas. 41. 

A surety of the bankrupt on a bond to dissolve an attachment, paid 
the debt of a creditor for the purpose of preventing his opposition to the 
discharge. This having been done without the knowledge of the bank- 
rupt, it was held that it would not invalidate the discharge. Ex parte 
Brlggrj, 2 Low. 389; 4 Fed. Gas. 113. 

The court refused to revoke a discharge which was inadvertently 
granted when the application was not made until the time had expired 
for a review by the circuit court, and the bankrupt had engaged in new 
business and contracted new debts. In re Buchstein, 9 Ben. 215; 4 Fed. 
Gas. 540. 

The knowledge that is sufficient to bar a creditor's right to move 
for the revocation of a discharge must be such that he could have availed 
himself of it before the return day of the order to show cause why the 
discharge should not be granted. In re Fowler, 2 Low. 122; 9 Fed. Cas. 
615. 

Creditors petitioned to have the discharge of the bankrupt set aside on 
the ground of errors by the court, and fraud. It appeared that while 
the court below erred in some of its rulings, the errors did not operate to 
the damage of the petitioning creditors; also that the evidence offered in 
proof of the charges of fraud was inadmissible. The petition was dis- 
missed by the district court, and its action was sustained by the circuit 
court on review. Marionneaux's Case, 1 Woods, 37; 16 Fed. Oas. 754. 

The court refused to vacate an adjudication on an application made 
nearly one year after it had been entered, and decided that the cir- 



Bankrupts. 149 

cumstances of the case, recited in the report, did not excuse tbe delay. 
In re Meade, 19 X. B. E. 3:j.j; lu Fed. Cas. 1281. 

It will not be presumed in the circuit court, as a ground for reversing 
the order granting the discharge, that the bankrupt and his wife were 
not examined, from the fact that the record failed to show it, there hav- 
ing been an order directing such examination. The register's certificate 
is not necessary to the bankrupt's discharge. Huntington v. Saunders, 
64 Fed. Rep. 476. 

The general principle is that jurisdictional facts will be presumed in 
favor of the jurisdiction; and the court refused to entertain an applica- 
tion to annul a discharge on the ground that one of the members of the 
bankrupt firm did not reside within the district, and the firm did not do 
business therein. Allen v. Thompson, 10 Fed. Rep. 116. 

A creditor who had proved his debt against the bankrupt and received 
his dividend filed a bill in the circuit court to vacate the discharge on 
the ground of fraud. It was held that the circuit court had no power to 
entertain such a bill; that the district court in which the adjudication was 
had had jurisdiction, and the court considered without deciding whether 
the circuit court could entertain jurisdiction of such a bill by one who 
was not a party to the proceedings. Commercial Bank v. Buckner, 20 
How. 108. 

The court refused to allow a creditor who was contesting the validity 
of a discharge to amend his petition by adding another specification, the 
discharge having been granted two years previously. In re Simms, 9 
Fed. Rep. 440. 

It is not necessary that a creditor should have proved his debt to 
enable him to proceed for the annulment of a discharge. In re Douglass, 
11 Fed. Rep. 403. 

In this case a certificate of discharge was vacated for the want of a 
notice to creditors under section 5109, R. S. Allen v. Thompson, 10 Fed. 
Rep. 116. 

In a proceeding to annul a discharge in bankruptcy (section 5120, R. S.), 
costs may be awarded to the prevailing party. In re Holgate, 8 Ben. 
255; 12 Fed. Cas. 335. 

The limitation in the Act of 1867 (section 5120, R. S.), is absolute, and 
the time begins to run from the date of the discharge, and not from the 
discovery of the alleged fraud. In re Brown, 19 N. B. R. 312 ; 4 Fed. C^s. 
338. 

Under the Act of 1867, it was necessary that a suit to set aside the 
discharge of a bankrupt should be commenced within two years. Pickett 
V. McGavick, 14 N. B. R. 236; 19 Fed. Cas. 588. 

The period of limitation to a petition to vacate a discharge begins 
from the date of discharge, and not from the discovery of the fraud on 
which it is based. Mall & Co. v. Ullrich, 37 Fed. Rep. 653. 

In support of a motion to set aside a discharge, it is not competent to 
prove acts not set forth in the specifications. Tenny et al. v. Collins, 
4 N. B. R. 477; 23 Fed. Cas. 848. 



150 The Bankeijptct Law. 

A bankrupt had sold his farm to his father-in-law, who deeded It 
back to the bankrupt's wife for a nominal consideration. The deeds 
were not recorded. The wife stated to him that both deeds were burned, 
and he repeated this statement to creditors and procured credit on such 
representation. Later, the deeds were placed on record. In filing a peti- 
tion in bankruptcy he omitted the property from his schedules. Upon 
the facts stated the court held that he had been guilty of concealment 
and perjury, and the discharge was set aside. In re Rainsford, 5 N. B. B. 
381; 20 Fed. Cas. 188. 

When a creditor filed specifications in opposition to the discharge of a 
bankrupt which were decided to be too vague, and he did not seek to 
amend, and a discharge was granted, and one month later he applied 
to have it set aside, the court held that he was guilty of laches. In re 
Mclntire, 2 Ben. 345; 16 Fed. Cas. 150. 

Co-Debtoks and Sureties. 
§ 16. Co-Debtors of Bankrupts. — (a.) The liability of a person 
who is a co-debtor with, or giaarantor or in any manner a surety for, a 
bankrupt shall not be altered by the discharge of such bankrupt. 

The acceptance of a composition in bankruptcy proceedings against 
the principal does not discharge a collateral liability for the same debt. 
In re Burchell, 4 Fed. Rep. 406. 

" Neither the discharge of the bankrupt, nor any step taken by the 
creditor In the course of the proceedings in bankruptcy in regard to his 
debt against the bankrupt, can have the effect to release, discharge, or 
afCect any person liable for the same debt for or with the bankrupt either 
as partner, joint contractor, indorser, surety or otherwise." In re Levy 
et al., 2 Ben. 169; 15 Fed. Cas. 431. 

A debtor, who had been arrested In a civil action, gave a bond with 
sureties. Thereafter, he received a discharge in bankruptcy. It was 
held under the Act of 1867 (section 5067, R. S.), that the discharge re- 
leased the judgment and the obligation of the sureties on the bond, and 
that the arrest did not afford any lien which was not released by such 
discharge. Long v. Dickerson, 15 Blatchf. 459; 15 Fed. Cas. 825. 

Debts Kot Affected. 

§ 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 resides; 

(2.) Are judgments in actions for frauds, or obtaining property by 
false pretenses or false representations, or for willful and malicious 
injuries to the person or property of another; 



Bankrupts. 151 

(3.) HaTe 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 bank- 
ruptcy; or 

(4.) Were created by his fraud, embezzlement, misappropriation, or 
defalcation while acting as an officer or in any fiduciary capacity. 

\ Claims of the United States. 

Clalma of the United States are not barred by a discharge in banlt- 
ruptcy, and must be paid in full. In re Huddell et al., 47 Fed. Rep. 206. 

Justice Bradley expressed the opinion that the federal government is 
not bound by a discharge under the Bankrupt Act. XJ. S. v. The 
Rob Roy, 1 Woods, 42; 27 Fed. Cas. 873. 

Held, under the Act of 1800, that a debt due the United States on a 
custom-house bond was not barred by a discharge in bankruptcy. U. S. 
V. King, Wall. Sr. 13; 26 Fed. Cas. 788 (1802). . 

Held, that the obligation of a surety on the bond of a collector of in- 
ternal revenue was released by a discharge in bankruptcy. U. S. v. 
Throckmorton et al., 8 N. B. R. 309; 28 Fed. Cas. 158. 

Where the United States proved its debt against a bankrupt and main- 
tained the priority of its claim, it was held that the debt was nevertlie- 
less not discharged under the Act of 1867. U. S. v. Herron, 20 Wall. 
251. 

A discharge under the Bankrupt Act of 1841 was held to cover a 
debt due the United States on account of customs duties. U. S. v. 
Zerega, 28 Fed. Cas. 804 (1856). 

The surety of a postmaster was held to be entitled to a discharge under 
the Bankrupt Act of 1841, and may plead his discharge in bar of a suit 
by the government. U. ,Sl. v. Davis, 3 McLean, 483; 25 Fed. Cas. 
780 (1844). 

[But observe that by the language of the above section, the exception is limited to taxes 
" levied by the United States," etc.] 

Debts Cteated by Fraud. 

The Act of 1867 excepted debts incurred by fraud from a discharge In 
bankruptcy. Held, that the word means actual fraud and such as 
involves moral turpitude. Neil v. Clark, 95 U. S. 704; Strang v. Bradner, 
114 id. 555. 

Construing the word " fraud " as found in section 5117, R. S., the 
supreme court held that it means an act involving moral turpitude or 
intentional wrongdoing, and not merely a fraud in law. Noble v. 
Hammond, 129 U. S. 65. 

A discharge in bankruptcy does not release a debt incurred by fraud, 
notwithstanding it was proved and a dividend paid upon it. Nell v. 
Clark, 95 U. S. 704; Strang v. Bradner, 114 id. 555. 



153 The Bankeuptcy Law. 

A debt created by fi-aud, but reduced to a judgment for money only, 
is not covered by a discharge in bankruptcy. Warner v. Cronkhite, 6 
Biss. 453; 29 Fed. Cas. 243. 

A suit by a purchaser of land sold by an assignee of the bankrupt 
against a grantee under a conveyance that Is a fraud on creditors is 
not barred by a discharge in bankruptcy. Bartles v. Gibson, 17 Fed. 
Kep. 293. 

In deciding vrhether a debt was contracted by fraud, the district court 
is not bound by the decision of a state court, but may consider all legal 
evidence. In re Alsberg, 16 N. B. E. 116; 1 Fed. Cas. 557. 

In determining v\riiether a debt Is discharged In bankruptcy, a fraud 
committed by one partner In conducting the business of the firm is 
chargeable to the firm, though the other members were In fact ignorant 
of it. Strang v. Bradner, 114 U. S. 555. 

Where a person had collected money for another, and Involuntary 
proceedings were commenced against him before he pays It, it was held 
that the indebtedness was not created by fraud, embezzlement or in a 
fiduciary capacity within the exception In section 5117, R. S. Noble 
V. Hammond, 129 U. S. 65. 

A plea of discharge in bankruptcy will not be sustained against a bill 
in equity to rescind a contract on the ground of fraud. Smith v. Bab- 
cock et al., 2 Woodb. & M. 246; 22 Fed. Cas. 432. 

A bankrupt having bought from his assignee a judgment against 
another bankrupt who has been discharged, it was held that the pur- 
chase carried the assignee's title, and the judgment being based on a 
fraudulent conversion, the discharge in bankruptcy was no bar to Its 
enforcement and collection in full, although the purchaser was a co- 
defendant in the judgment. Balllet v. Seeley, 34 Fed. Rep. 300. 

A creditor whose claim was created by a fraud, proved It In bank- 
ruptcy and received a dividend. It was held that he did not thereby 
waive his right to bring an action for the balance of the debt. In re 
Clews, 19 N. B. R. 109; 5 Fed. Cas. 1047. 

A judgment had been entered against the bankrupt before the com- 
mencement of proceedings, but an appeal from an order of arrest on the 
ground that the debt was fraudulently created was determined after 
the filing of the petition, and the order of arrest affirmed. It was held 
that the debt would not be discharged In bankruptcy, notwithstanding it 
was in judgment, and that an execution would not be stayed under the 
Act of 1867 (section 5106, R. S.) In re Pitts, 19 N. B. R, 63; 19 Fed. Cas. 
750. 

A debt is " created by fraud " within the meaning of the Act of 1867, 
when the debtor contracted it without intending to pay it in whole 
or In part. Under the terms of that law the bankrupt is not entitled to 
a discbarge as to such a debt. In re Alsberg, 16 N. B. R. 116; 1 Fed. Cas. 
557. 

A bankrupt Is not released by his discharge from a claim in equity 
to rescind a contract on the ground of fraud. Doggett v. Emerson, 1 
Woodb. & M. 195; 7 Fed. Cas. 821 (1846). 



Bankrupts. 153 

Debts created by fraud are not affected by a discharge in banliruptcy; 
hence tliey cannot be used as grounds for opposing a discharge. In re 
Bashford, 2 N. B. R. T2; 2 Fed. Cas. 1004. 

The provisions of a composition will not be enforced by the court of 
banliruptcy against a creditor who has obtained a judgment by default 
in a state court upon a debt contracted by fraud, inasmuch as the debt 
would not be affected by the discharge. In re Tooker, 8 Ben. 390; 24 Fed. 
Cas. 51. 

Fiduciary Debts. 

An Indebtedness by a banlirupt as guardian, being a fiduciary demand, 
is not affected by his discharge in banliruptcy. In re Maybin, 15 N. B. 
R. 468; 16 Fed. Cas. 121. 

A discharge in a general form does not affect fiduciary debts, unless 
they have been proved in the proceedings. In re Tebbetts, 5 Law Rep. 
259; 23 Fed. Cas. 826 (1842). 

The obligation of a surety on a guardian's bond is not a fiduciary debt, 
and is covered by a discharge in banliruptcy. Ex parte Taylor, 1 Hughes, 
617; 23 Fed. Cas. 727. 

The oiflce of register of the land office was held to be " fiduciary " 
under the Bankruptcy Act of 1841. Ex parte Wright, 1 West. L. J. 143; 
30 Fed. Cas. 655 (1843). 

Under the Act of 1800, a bankrupt could be discharged from other 
debts, notwithstanding the existence of fiduciary debts incurred before 
the passage of the Act. Chapman v. Forsyth, 2 How. 202. 

A pledgee who hypothecates the pledged property to secure a debt due 
from himself, and fails to return it to the original pledgor, does not 
thereby create a debt by fraud, or in a fiduciary capacity. Hennequin 
V. Clews, 111 U. S. 676. 

To establish a fiduciary character within the meaning of the Bank- 
rupt Act, there must be something more than circumstances under which 
a trust or confidence Is reposed in the debtor according to the popular 
acceptance of the term. Upshur v. Brisco, 138 U. S. 365. 

The bankrupt had constituted the defendant his attorney to pay the 
former's wife an annual sum. The defendant accepted the mandate, 
and became a surety for the payments as provided in the power of at- 
torney. Later, the defendant received his discharge in bankruptcy. Held, 
that the claim of the wife was not fiduciary, and that the obligation was 
released by the discharge. Ibid. 

A fiduciary creditor who proves his debts and participates in the divi- 
dends cannot prosecute any other remedy. In re Tebbetts, 5 Law Rep. 
259; 23 Fed. Cas. 826 (1842). 

A fiduciary creditor may at his election prove his claim in bankruptcy 
and share in the dividends. If he does not elect to do so, his debt is not 
affected by the discharge. In re Brown, 5 Law Rep. 258; 4 Fed. Cas. 333 
(1842). 

Where certain produce had been sent to the bankrupt to be sold on 
commission, and he had sold it, but failed to remit the proceeds, and was 



154 The Bankhuptcy Law. 

afterward arrested by process from a state court in an action to recover 
tlie proceeds, Justice Nelson held that the debt was one created by the 
defalcation of the bankrupt " while acting in a fiduciary character " under 
section 33 of the Act of 1867, and that he was, therefore, subject to 
arrest. In re Kimball, 6 Blatchf. 29&; 14 Fed. Gas. 478. 

The defendants had received certain United States bonds and had 
signed an agreement to the following effect: " These bonds were held 
subject to the order for A. L. P. at ten days' notice, agreeing to collect 
the coupons for his account free of charge and to allow him two per 
cent, per annum interest on the par value of said bonds," etc. The de- 
fendants sold the bonds and failed to account for the proceeds. The 
supreme court thought there was no^ such fraud In the creation of the 
debt and no such trust in respect to the possession of the bonds as to bar 
the operation of a discharge in bankruptcy. Palmer v. Hussey, 119 
U. S. 96. 

A creditor proving a fiduciary debt and receiving a dividend cannot 
thereafter claim that his debt was not barred by a discharge. Chap- 
man V. Forsyth, 2 How. 202. 

A bankrupt owing a fiduciary debt must state its nature in the sched- 
ules. If he fails to do so, his discharge will not operate as a bar. Ibid. 

Judge Choate, of the district court for the southern district of New York, 
decided that the case of Neal v. Clark, 95 TJ. S. 704, settled the proposi- 
tion that a factor's liability is covered by a discharge in bankruptcy. In 
re Smith et al., 9 Ben. 494; 22 Fed. Cas. 388. 

Section 33 of the Act of 1867 provides that " No debt created by the 
fraud or embezzlement of the bankrupt * * * qj. -n-hile acting in any 
fiduciary character shall be discharged by proceedings in bankruptcy." 
This was held not to cover the case of a commission merchant who re- 
ceived goods on consignment and failed to account for the proceeds to 
the consignee. Keime v. Graff et al., 17 N. B. R. 319; 14 Fed. Cas. 218. 

Held, under the Act of 1.841, that the debt of an auctioneer for goods 
sold by him is of a fiduciary character, and Is not released by a dis- 
charge in bankruptcy. In re Lord, 5 Law Rep. 258; 15 Fed. Cas. 872 
(1842). 

The relation between a factor and his principal was held not to be 
fiduciary within the terms of the Act of 1800. Chapman v. Forsyth, 2 
How. 202. 

A debt against a commission merchant for the proceeds of goods 
sold on commission is not fiduciary in its character, so as to be ex- 
cepted from the benefit of a discharge in bankruptcy. Owsley v. Cobin, 
15 N. B. I^. 489; 18 Fed. Cas. 929. 

A commission merchant who fails, on account of insolvency, to pay for 
the goods consigned to and sold by him was held to be released of his 
indebtedness by a discharge in bankruptcy. Zeprink v. Card 11 Fed. 
Rep. 295. 

Effect of Discharge Generally. 

Under the Act of 1800 a discharge in bankruptry was held not to be a 
bar to an injury to goods shipped, caused by negligence, where the 



Bankrupts. 155 

damages were not liquidated. Duser v. Murgatroyd, 1 Wash. C. C. 13; 
8 Fed. Cas. 140 (1803). 

A discharge granted abroad does not release the person or property 
of the debtor from proceedings commenced here for the collection of 
debts. Zaregas' Case, 4 Law Rep. 480; 30 Fed. Cas. 916 (1842). 

Justice Washington decided that a debt contracted in this country 
could not be discharged by the bankrupt laws of another country. Green 
V. Sarminto, Pet. C. C. 74; 10 Fed. Cas. 1117. 

A shareholder in a national bank is released from his individual 
liability to the bank's creditors by his discharge, provided such liability 
was provable in bankruptcy, and not merely contingent. Irons v. Bank, 
27 Fed. Rep. 591. 

Under the Act of 1800, a discharge of the party, made after the return 
of a scire facias against his bail, did not operate to discharge the sure- 
ties. Bennett et al. v. Alexander, 1 Oranch O. O. 90; 3 Fed. Cas. 203. 

A discharge in bankruptcy only releases the debtor personally from his 
debts. A lien is not discharged, and may be enforced by a state court 
when the property was not assets in bankruptcy, or by the bankrupt 
court when it was, and subsequently comes into the possession of the 
bankrupt. Dixon v. Barnum, 3 Hughes, 207; 7 Fed. Cas. 748. 

A replication to a plea of discharge in bankruptcy must set forth that 
the debt sued for was placed on the schedule. Hood v. Spencer et al., 
4 McLean, 168; 12 Fed. Cas. 459. 

Held, that a discharge in bankruptcy may be set up in a state court 
to stay an execution on a judgment recovered against the bankrupt 
after the commencement of proceedings and before the discharge, not- 
withstanding the defendant had failed to apply for the stay before judg- 
ment. Boynton v. Ball, 121 V. S. 457. 

An action was commenced against a special partner on an allegation 
that he had made himself liable as a general partner. Held, that the 
action was not barred by the discharge of the general partners in bank- 
ruptcy. Abendroth v. Van Dolsen, 131 V. S. 66. 

Real estate of the bankrupt set apart as a homestead was held not 
to be released by a discharge in bankruptcy from the lien of a mortgage 
executed by him before the commencement of proceedings to secure a 
debt not proved in bankruptcy. Long v. Bullard, 117 U. S. 617. 

A suit had been commenced before the commencement of proceedings 
in bankruptcy, and was pending when the discharge was granted. There- 
after a judgment was entered. The debt was one provable in bankruptcy. 
It was held that the discharge was no bar to an action on the judgment. 
Dimock v. Revere Copper Co., 117 XJ. S. 559. 

A discharge in bankruptcy is personal to the bankrupt, and cannot be 
pleaded by other persons in bar to an action against them. Moyer v. 
Dewey, 103 U. S. 301. 

A discharge in bankruptcy releases the obligation of the principal on an 
attachment bond, but not his surety. Wolf v. Stix, 99 U. S. 1. 

The Act of 1841 authorized the surety of a promissory note to prove the- 
demand against the maker in bankruptcy. Accordingly the claim of such 



156 The Bankruptcy Law. 

a surety against his principal is barred by a discharge. Mace v. Wells, 

7 How. 272. 

The principal obligor of a delivery bond executed after the commence- 
ment of proceedings was not released by a discharge. Wolf v. Stix, 99 

V. S. 1. 

In Massachusetts the original cause of action is merged in the judg- 
ment, and suit on the judgment will be barred by the discharge, although 
the original cause of action would not have been barred thereby. Packer 
V. Whlttier, 81 Fed. Eep. 335. 

An estoppel based on covenants of warranty is not impaired by the 
discharge of the covenantors in bankruptcy. Bush v. Cooper, 18 How. 82. 

Held, that a discharge in bankruptcy releases a debt for a fine imposed 
in proceedings for contempt and exonerates the bankrupt from im- 
prisonment. Spaulding v. New York, 4 How. 21. 

A debt which is excepted from the operation of a discharge can be 
collected notwithstanding the discharge. The question whether the dis- 
charge affects such debt can only arise and be determined between the 
parties in a suit brought to collect the debt, in which the discharge, after 
it shall have been granted, shall be set up as a bar to a recovery. In re 
Ti^'right, 2 Ben. 509; 3 N. B. R. 142; 30 Fed. Cas. 656 (1868). 

The contingent liability of the bankrupt as a stockholder in a corpora- 
tion was held not to be discharged by composition proceedings, when the 
bankrupt had not included it in his schedule of debts. Flower v. Green- 
baum, 2 Fed. Eep. 897. 

A discharged bankrupt was sued on a note, and set up in answer his 
discharge in bankruptcy. The replication alleged that the plaintiff's name 
was not placed on the schedule, and he had received no notice of the 
proceedings, or the application for a discharge. A demurrer to- the repli- 
cation was sustained. Lamb v. Brown, 12 N, B. R. 552; 14 Fed. Cas. 988. 

The Act of 1841 released the bankrupt from all debts that might have 
been proved, whether they were actually proved or not. Case of Johnson, 
13 Fed. Cas. 718 (1812). 

A discharge in bankruptcy releases the bankrupt from a judgment ob- 
tained in an action for a tort. In re Book, 3 McLean, 317; 3 Fed. Cas. 867 
a843). 

The court decided that a discharge in bankruptcy does not release the 
bankrupt from an obligation to pay alimony, and discussed without 
deciding the question whether installments already due are released. In 
re Garrett, 2 Hughes, 235; 10 Fed. Cas. 47. 

Held, under the Act of 1867, that a judgment obtained in an action for 
breach of promise to marry may be proved in bankruptcy, and is barred 
by a discharge. In re Sidle, 2 N. B. R. 220; 22 Fed. Cas. 102. 

It was held under the laws of Louisiana that the liability of a husband 
to his wife for her paraphernal property secured by a mortgage on his 
estate is extinguished by his discharge in bankruptcy; that the mortgage 
could not attach to land acquired by him after the discharge, and that a 
subsequent mortgagee of the husband might set up the discharge in 
bankruptcy against the wife. Fleltas v. Richardson, 147 U. S. 550. 



CouETS AND Pkoceduke Thebein'. 157 



CHAPTEE IV. 

COTJETS AND PeOOEDUEE ThEEEIN. 

§ 18. Process, Pleadings, and Adjudications. — (a.) Upion the 
filing of a ptitition for involuntary bankruptcy, seryice thereof, with 
a Avrit of subpoena, shall be made upon the person therein named as 
defendant in the same manner that service of such process is now had 
upon the commencement of a suit in equity in the courts of the 
United States, except that it shall be returnable within fifteen days, 
unless the judge shall for cause fix a longer time; but in case personal 
service cannot be made, then notice shall be given by publication in 
the same manner and for the same time as provided by law for notice 
by publication in suits in equity in courts of the United States. 

(b.) The bankrupt, or any creditor, may appear and plead to the 
petition within ten days after the return day, or within such further 
time as the court may allow. 

(c.) All 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 petition 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 petition is filed at the time of the filing, the clerk shall forth- 
with refer the case to the referee. 



158 The Bankkuptot Law. 

Pleading^s and Amendments — Verification. 

The rules of the court in which the proceedings are pending will govern 
the sufficiency of pleadings. In re Sutherland, Deady, 344; 23i Fed. Cas. 
454. 

A petition in involuntary bankruptcy was held to be insufficient which 
alleged that the debtor owed a debt, but failed to allege that it was due 
to the petitioning creditor. In re Western Savings & T. Co., 4 Saw. 190; 
29 Fed. Cas. 775. 

The proof on an order to show cause why a debtor should not be ad- 
judged a bankrupt will be confined to the alleged acts of bankruptcy set 
forth in the petition. In re Sykes, 5 Biss. 113; 23 Fed. Cas. 582. 

An allegation in a petition to have a debtor adjudged a bankrupt, signed 
by one of a firm of creditors " this deponent Is informed and believes " 
(then reciting the act of bankruptcy), is an Insufficient averment by the 
petitioning firm and subject to demurrer. In re Orem et al. v. Harley, 3 
N. B. R. 263; 18 Fed. Cas. 790 (1869). 

The allegation of acts of bankruptcy, or depositions in support thereof, 
must be such as constitutes legal testimony, or the court cannot assume 
jurisdiction. In re Rosenflelds, 11 N. B. R. 86; 20 Fed. Cas. 1200. 

It is not necessary that the petitioner in a bankruptcy proceeding 
should have personal knowledge of the acts of bankruptcy alleged in his 
petition; but the grounds of his belief should be stated. In re MuUer et 
al., Deady, 513; 17 Fed. Cas. 971. 

Where neither the petition nor the affidavit to the acts of bankruptcy 
is signed by the petitioner, the case will be dismissed. Hunt et al. v. 
Pooke et al., 5 N. B. R. 101; 12 Fed. Cas. 930. 

A petition was held to be sufficient under the Act of 1867 which set up 
that the acts of bankruptcy were committed " within six calendar months 
next preceding the date thereof." In re Muller et al., Deady, 513; 17 Fed. 
Cas. 971. 

A rule of the court requiring the petitioning creditor to state the con- 
sideration for his debt need not be complied with when the debt is In 
judgment. In re Mott, 17 Fed. Cas. 90S. 

A petitioner in voluntary bankruptcy was a member of several firms, 
and failed to state that they were insolvent, or that they had been dis- 
solved. It was held that the omissions were not fatal. In re Dodge 7 
Fed. Cas. 785 (1842). 

A court of bankruptcy will allow supplemental proofs to be filed to cor- 
rect omissions in the petition or depositions. In re Hanlbel et al 15 N 
B. R. 233; 11 Fed. Cas. 431. 

Allegations of acts of bankruptcy must not be In the alternative. Ibid. 

The petitioning creditor was a bank, and the petition was signed by its 
cashier. The alleged bankrupt moved to vacate the order to show cause 
on the ground that the signature was not sufficient, and also denied the 
act of bankruptcy set up in the petition, and demanded a trial. It was 



Courts and Peocedukb Thekeik. 159 

held that in joining issue he waived his objection to the petition. In re 
McNaughton, 8 N. B. R. 44; 16 Fed. Oas. 333. 

Erasures and interlineations that did not affect the sense of the docu- 
ment were held 'not to be fatal to a petition in bankruptcy. In re Mal- 
colm, 4 Law Rep. 488; 16 Fed. Gas. 540 (1842). 

On the hearing, the petitioning creditors will only be allowed to give 
proof of acts of bankruptcy specifically set forth. Ex parte Potts et al., 
Ci-abbe, 469; 19 Fed. Gas. 1199 (1842). 

It was not necessary that a petition in involuntary bankruptcy should 
be signed by the petitioner himself. It may be signed and verified by his 
attorney duly authorized. So held under the Act of 1867. In re Raynor, 
11 Blatchf. 43; 20 Fed. Gas. 338. 

Where a petitioner in bankruptcy does not know the residences of 
creditors, he should set out what effoi-ts he has made to find them. In re 
Pulver, 1 Ben. 381; 20 Fed. Cas. 54. 

Allegations of acts of bankruptcy should be so specific as to Inform the 
creditor fully what he is required to refute and explain. In re Randall 
et al., Deady, 557; 20 Fed. Oas. 222. 

A petition in involuntary bankruptcy is not merely an action to collect 
a debt. A plea tendering the amount of the debt is immaterial, and is 
bad. If, as charged, the debtor is insolvent, the petitioner has no right 
to accept payment, and would thereby take the risk of forfeiting his 
whole debt. In re Ouimette, 3 N. B. R. 566; 18 Fed. Cas. 913 (1870). 

A plea in abatement was held to be not the proper form of opposing 
a petition in bankruptcy. When one is filed, it should be treated as 
written objections. In re Book, 3 McLean, 307; 3 Fed. Cas. 1843. 

It was not necessary that the answer to a creditor's petition under the 
Act of 1867 should be verified or that it should be in writing. It is 
sufficient if the opposing party appears and denies the facts set forth in 
the petition. At the same time the court expressed the opinion that it is 
better in all such cases that the answer should not only be in writing, 
but should be as full, specific, and certain as an answer to a bill in equity. 
In re Heydett, 8 N. B. R. 332; 12 Fed. Cas. 86. 

A demurrer to a petition in bankruptcy having been overruled without 
prejudice to an application for leave to answer, and the application hav- 
ing been promptly made, the circuit court held that the district court 
should have permitted the answer to be filed. In re Morse, 17 Blatchf. 
72; 17 Fed. Cas. 846. 

Where the allegations of a petition In involuntary bankruptcy are de- 
nied according to form 61 under the Act of 1867, no replication was held 
to be necessary. In re Dunham et al., 2 Ben. 488; 8 Fed. Gas. 33. 

The answer of a debtor to an involuntary petition under the Act of 
1867 was required to be in writing and verified. The averments should 
be made in substantially the same form as defenses in a common-law 
action. In re Findlay, 5 Biss. 480; 9 Fed. Gas. 55. 

Justice Miller expressed the opinion that a paper simply denying the 
allegations of acts of bankruptcy, and demanding a trial by jury, is 



160 The Bankeuptct Law. 

sufficient without a formal answer to a petition in involuntary bank- 
ruptcy. Phelps V. Glasen, Woolw. 204; 19 Fed. Gas. 445. 

Where an attorney yerifles a petition or proof in bankruptcy, he must 
show his authority for making such verification. In re Sargent, 13 N, B. 
R. 144; 21 Fed. Gas. 495 (1875). 

Any irregularity in verifying a petition, or the debts of the petitioning 
creditor, may be amended mine pro tunc, and does not defeat the juris- 
diction of the court. In re Donnelly, 5 Fed. Rep. 783. 

A petition that is defective in its verification nevertheless gives the 
court jurisdiction to allow an amendment. In re Simmons, 10 N. B. R. 
253; 22 Fed. Gas. 152. 

Where there were several petitioners in distinct rights, it was held that 
a verification by or on behalf of each was necessary. Ibid. 

Held, under the Act of 1867, that it is not necessary for an agent who 
verifies a petition in bankruptcy to state the residence of his principals. 
Ibid. 

The attorney of the bankrupt, as notary public, may take the affidavit 
of the bankrupt to his petition and schedule. In re Mauer, 5 Saw. 66; 
16 Fed. Gas. 1162. 

The authority of an agent to verify a petition in bankruptcy must be 
shown by the agent's own oath, or by supplementary proof, in the dis- 
cretion of the court. In re Rosenfields, 11 N. B. R. 86; 20 Fed. Gas. 1209. 

When a petition in bankruptcy is verified by an attorney, the absence 
of the principal should appear by direct averment, and not as a recital. 
In re Hadley, 12 N. B. R. 366; 11 Fed. Gas. 148. 

The authority of an agent to verify a petition by a corporation must 
appear by direct affirmation, and not by way of recital. In re Hanibel et 
al., 15 N. B. R. 233; 11 Fed. Giis. 431. 

A defective verification is deemed waived by the debtor when he calls 
a meeting for a composition, and it cannot be taken advantage of by 
objecting creditors. Ex parte Jewett, 2 Low. 393; 13 Fed. Gas. 580. 

A petition was amended so as to set up that the conveyances specifically 
set forth in the original petition, and there alleged to be fraudulent and 
without consideration, were made with intent to prefer a certain person. 
It was held that this did not charge a new act of bankruptcy, and should 
be allowed. In re Henderson, 9 Fed. Rep. 196. 

An Involuntary petition was filed against two persons as partners, and 
subsequently amended to include a dormant partner. Held, that the 
filing of the amended petition was the commencement of the proceedings 
as to the dormant partner. In re Ward, 12 Fed. Rep. 325. 

An affidavit to a petition in bankruptcy, defective in form, may, on 
motion, be amended to conform to law. In re Sargent, 13 N,. B. R. 144; 
21 Fed. Gas. 4§5 (1875). 

Greditors having joined in a petition cannot object to amendments 
which appear necessary to the prosecution of same to effect. Ibid. 



Courts and Pkoceduke Therein'. 161 

Where a petition by one partner against another omitted the residence 
of the latter, the court allowed the omission to be corrected by amend- 
ment. In re Vandei-hoef et al., 18 N. B. K. 543; 28 Fed. Oas. 966. 

Petitioning credltoi-s are not entitled to amend so as to allege a new- 
act of bankruptcy. Stern v. Schonfield, 22 Fed. Gas. 1310. 

Between the filing of the petition and the filing of an amendment, the 
petitioning creditor had assigned his claim. The amended petition was. 
dismissed. In re Western Savings & T. Co., 4 Saw. 190; 29 Fed. Oas. 775. 

When a legal petition in banljruptcy has been filed, amendments sub- 
sequently allowed, as a general rule, relate back and take effect from the 
time that the original petition was filed. Securities transferred by the 
bankrupt before the amendment is made, but after the filing of the 
original petition, vest in the assignee, and are recoverable by him, al- 
though the adjudication was based exclusively on the facts stated in the 
amendment. Sherman v. Bank, 8 Biss. 371; 21 Fed. Gas. 1276i 

When, after a sufficient petition is filed, an amendatory act is passed 
making additional or different requirements, the new law applies, but the 
petitioners will be allowed to amend their pleading so as to conform to it. 
In re Scull, 7 Ben. 371; 10 N. B. R. 165; 21 Fed. Gas. 890 (1874). 

A deposition to acts of bankruptcy cannot be amended, since it is the 
proof upon which the rule to show cause why the debtor should not be 
declared a bankrupt issues. May v. Harper et al., 4 N. B. R. 478; 16 Fed. 
Oas. 12ia 

During a trial before a Jury on the issue of bankruptcy, the court may 
allow the petition to be amended. In re Bininger et al., 7 Blatchf. 262; 
3 Fed. Oas. 412. 

The petition failed to allege that the act complained of was done when 
the alleged bankrupt was insolvent, but it appeared in evidence during 
the proceeding that suCh was the fact. The court allowed the petition 
to be amended, and proceeded with an adjudication. In re Graft, 2 Ben. 
214; 6 Fed. Oas. 698. 

The court will permit a petitioning creditor to amend his petition by 
setting up further acts of bankruptcy that were disclosed in the proof. 
In re Gallinger, 1 Saw. 224; 9 Fed. Oas. 1108. 

After the debtor in involuntary proceedings had appeared, answered, 
and demanded a jury, and within a few days before the time fixed for the 
trial, the petitioners asked leave to file an amended petition alleging 
additional acts of bankruptcy, without notice to the debtor or his attorney. 
Leave was refused. In re Leonard, 4 N. B. R. 562; 15 Fed. Oas. 331. 

The duty of a court of bankruptcy is not limited to .the efforts of 
counsel, but should go beyond them to carry out the policy of the Act 
and see that justice is done to all parties. For this purpose, amendments 
may be allowed to the time of the final discharge. In re Plerson, 10 N. 
B. R, 193; 19 Fed. Gas. 668. 

The district court will not allow an amendment setting up entirely new 
acts of bankruptcy. Reed et al. v. Cowley, 1 N. B. R. 516; 20 Fed. Oas. 
433. 

11 



162 The Bankeuptcy Law. 

Who May Oppose Adjudication. 

A general unsecured creditor has a right to appear and oppose an 
adjudication in bankruptcy. In re Austin et al., 16 N. B. B. 518; 2 Fed. 
Cas. 23. 

Oi-editors at large having no special interest to protect cannot inter- 
vene and oppose an adjudication of bankruptcy; but upon their sugges- 
tion the court may order an investigation into suspicious circumstances. 
In re Hopkins, 18 N. B. R. 490; 12 Fed. Cas. 491. 

An attaching creditor can avail himself of any ground of opposition to 
an adjudication which would be open to the debtor himself. In re 
Williams, 2 N. B. R. 132; 29 Fed. Gas. 1327. 

An attaching creditor has the right to intervene in bankruptcy pro- 
ceedings and contest the jurisdictional allegation of the petitioner as to the 
number and amount of petitioners, and also to contest the case on its 
merits. In re Williams, 14 N. B. R. 132; 29 Fed. Cas. 1327. 

Where there is reason to believe that proceedings in voluntary bank- 
ruptcy are collusive between the petitioner and the debtor, an attaching 
creditor may intervene to oppose the adjudication. In re Mendelsohn, 3 
Saw. 342; 17 Fed. Gas. 4. 

An insurance company was in the hands of "a receiver appointed by a 
state court, when it was adjudged bankrupt. The receiver was held to be 
competent to move the district court to set aside the proceedings in bank- 
ruptcy, but was not allowed to prove that the company was not Insolvent. 
In re Atlantic M. L. I. Co., 9 Ben. 270; 2 Fed. Cas. 168. 

A creditor, who had a suit pending when the proceedings were com- 
menced, attached the bankrupt's property and pressed his suit to judg- 
ment. Thereafter he asked leave to intervene and oppose the adjudica- 
tion. The court denied the application on the ground that he had no 
more rights than a general creditor. In re Vogel et al., 9 Ben. 498; 28 
Fed. Cas. 1238. 

Creditors can only resist voluntary proceedings on the ground of a 
want of jurisdiction in the court, or some defect in the proceedings. In 
re Fowler, 1 Low. 161; 9 Fed. Cas. 614. 

In Involuntary proceedings under the Act of 1841, the bankrupt did not 
appear, but certain creditors, alleged to have been fraudulently preferred, 
appeared and denied that the petitioner had any claims against the 
alleged bankrupt. It was held that they had a right to contest the facts 
set up in the petition; also that the alleged bankrupt could be subjected 
to an examination in relation to the consideration of the debt claimed to 
be due from him to the petitioning creditor. In re Heusted, 5 Law Rep. 
510; 12 Fed. Cas. 71 (1843). 

The failure of the alleged bankrupt to appear on the return day does 
not prevent any creditor directly Interested in the proceedings from 
intervening and contesting the allegations of acts of bankruptcy. In re 
Jonas, 16 N. B. R. 452; 13 Fed. Cas. 923. 

A creditor who has a lien on the property of the bankrupt by virtue of a 



Courts xnd Pbocedube Therein. 163 

Judgment, which he was subsequently enjoined from prosecuting by 
proceedings in bankruptcy, has no right to contest the facts set up by 
another creditor in a petition filed subsequent to the judgment to have 
the debtor adjudged a bankrupt. Button et al. v. Freeman, 5 Law Rep. 
447; 8 Fed. Cas. 175 (1842). 

Until an adjudicatiou is had, the petitioning creditor and the debtor 
are the only parties to a proceeding in bankruptcy. In re Bush, 6 N. B. 
R. 179; 4 Fed. Cas. 879. 

Judge Blatchford decided that the only parties to proceedings in bank- 
ruptcy are the bankrupt and his creditors. In re Fredenberg, 2 Ben. 133; 
9 Fed. Cas. 740. 

A person claiming to be a creditor cannot be heard in opposition to a 
petition for adjudication, which is simply an issue between the petition- 
ing creditors and the alleged bankrupts. In re Boston H. & E. B. Co., 5 
N. B. R. 232; 3 Fed. Cas. 956. 

Attaching creditors have no greater right to intervene in bankruptcy 
proceedings than general creditors. In re Lawrence et al., 10 Ben. 4; 15 
Fed. Cas. 21. 

An adjudication in bankruptcy may be opposed by an attaching creditor, 
not a party to the proceedings, on the ground that the required number 
and amount of creditors had not united in the petitfon. In re Hatje, 6 
Biss. 436; 11 Fed. Cas. 823. 

A creditor cannot be heard either in person or by attorney in opposition 
to proceedings in bankruptcy until he has proved his debt, notwithstand- 
ing his claim as set forth in the schedule to the bankrupt's petition. In 
re Hill, 1 Ben. 321; 12 Fed. Cas. 144. 

Construing the Act of 1841, the court said: "The debt due a bank is 
due to a corporate person absolutely, and can only be represented or 
claimed by such corporation. There is no authority, express or implied, 
with the individual stockholders, and no power in them to act with 
respect to such a debt otherwise than through their corporate representa- 
tion. Such individuals cannot, accordingly, be allowed to interpose and 
contest a bankrupt's proceedings because of that corporate debt." In re 
Tallmadge, 23 Fed. Cas. 677 (1843). 

Some time after the adjudication, a brother of the bankrupt filed a 
petition setting up that the bankrupt died before adjudication, and asking 
for the dissolution of an injunction that it had been served upon him, 
the petitioner. The court decided that there is no party to a creditor's 
petition except the petitioning creditor and the bankrupt; that a person 
against whom an injunction has been issued might apply to have the 
injunction dissolved, but did not have a right to contest the adjudication. 
The petition was dismissed. Karr v. Whittaker et al., 5 N. B. R. 123; 14 
Fed. Cas. 133. 

Where a creditor had not been served with an order to show cause, his 
appearance by attorney was held to be sufflcieut. In re Weyhausen et al., 
1 Ben. 39T; 29 Fed. Cas. 848. 



164 The Bankkuptoy Law. 



Practice. 



A proceeding In bankruptcy is a civil, and not a criminal proceeding. 
In re De Forest, 9 N. B. R. 278; 7 Fed. Cas. 363. 

The filing of a petition in bankruptcy gives notice to all tlie world of 
the commencement of proceediags. In re Lake, 3 Blss. 204; 14 Fed. Oas. 
944. 

A proceeding in bankruptcy, from the filing of the petition to the dis- 
charge of the bankrupt and the final dividend. Is a single statutory case 
or proceeding. York's Case, 1 Abb. (U. S.) 506; 4 N. B. R. 479; 30 Fed. 
Cas. 814 (1870). 

The filing of a petition In bankruptcy under the Act of 1867 (section 
5024, R. S.) is deemed to be complete when it is delivered to the clerk of 
the court, and not when the clerk presents It to the judge. In re Bear et 
al., 5 Fed. Rep. 53. 

The commencement of proceedings in bankruptcy under section 38 of 
the Act of 1867 was held not to consist In the filing of the petition alone, 
and must date from the filing of proofs sustaining the petition and mak- 
ing a prima facie case. In re Rogers, 10 N, B. R. 444; 20 Fed. Cas. 1105. 

The hour marked on the filing of a petition In bankruptcy is not con- 
elusive, and parol testimony may be introduced to show that It was filed 
at a later hour. In re Roberts et al., 8 Biss. 426; 20 Fed. Cas. 878. 

An order to show cause was made on the 15th of September, and it 
appeared on the face of the papers that the petition was not filed until the 
19th. It was ascertained that in fact the petition was filed on the 15th, 
and the court made an order nunc pro tunc correcting the entry of the 
filing on the petition. It was held that this was proi)€r practice, and 
that the amended record was conclusive. Ala. & C. R. R. Co. v. Jones, 
7 N. B. R. 145; 1 Fed. Cas. 281. 

A voluntary petitioner becomes a bankrupt from the time that he files 
his petition. If he neglects to move for an adjudication, the creditors 
may do so. Ex parte Harris, 3 N. Y. Leg. Obs. 152; 11 Fed. Cas. 607 
(1845). 

A creditor who has not appeared on an order to show cause why an 
adjudication should not be had. Is not estopped from denying the alleged 
acts of bankruptcy in subsequent proceedings. In re Thomas, 3 N. B. R. 
38; 23 Fed. Cas. 932. 

" A tender after suit brought will not bar the petition, unless the debt 
Is the only one outstanding, or unless all other creditors consent, because 
the respondents are admitted to be insolvent, and the petitioners would 
have no right, knowing and relying on the insolvency, to accept payment 
in full without the consent of all." In re Williams et al., 1 Low. 406; 29 
Fed. Cas. 1322; 

Pi-oceedings in bankruptcy are, as plenary proceedings, equivalent to a 
general creditors' bill in chancery. The practice, except as otherwise 
prescribed by statute, should be the same in both. In re Anderson, 23 
Fed. Rep. 482. 



COUETS AND PROCEDCTRE THEREIlf. 165 

A proceeding by a creditor to have a debtor adjudged bankrupt is by 
all analogies a case at law. By it legal rights are to be ascertained and 
determined, in contradistinction to equitable ones, by the intervention of 
a jury; the pleadings are In nowise substantially different from those in 
an ordinary action at law, and the questions arising therein such as 
usually occur in an action at law. Oregon Bulletin Printing Pub. Co., 
8 Chi. Leg. News, 143; 18 Fed. Cas. 780. 

Section 41 of the Act of 1867 imposed on the debtor the burden of proof 
to show that the facts set forth in the petition were not true. In re 
Price et al., 8 N. B. R. 514; 19 Fed. Cas. 1314. 

When the petitioning creditor does not appear on the day fixed for the 
hearing, and no other creditor asks to be substituted, the proceedings are 
at an end. In re Camden P. M. Co., 3 N. B. R. 59; 4 Fed. Cas. 1127. 

An attorney for a voluntary bankrupt must be a member of the bar of 
the bankrupt court. The petition will not be dismissed because the at- 
torney is not so qualified, but the fact will be ground for an order that 
such attorney will not be recognized by the register. In re O'Hallaran, 8 
Ben. 128; 18 Fed. Cas. 620 (1875). 

A motion once denied, though without prejudice, cannot be heard again 
on substantially the same facts. In re Mott et al., 17 Fed. Cas. 902. 

Previous to the final judgment in bankruptcy proceedings, all orders 
that affect the merits are under the control of the court. Linder v. Lewis 
et al., 4 Fed. Rep. 318. 

The Bankrupt Act of 1841 was repealed on the 3d of March, 1843. In 
the case cited, the court held that a petition filed on that day was too late, 
as the repealing act went into effect from the beginning of the day, un- 
less otherwise provided. In re Welman, 7 Law Rep. 25; 29 Fed. Cas. 681 
(1844). 

Where a creditor conceals property, the fact cannot be urged in oppo- 
sition to an adjudication on his own petition. The concealment is itself 
an act of bankruptcy, and the assignee can recover the property for the' 
creditors. In re Fowler, 1 Low. 161; 9' Fed. Cas. 614. 

Where respondents to a rule appeared before the register and defended 
on the merits, but failed to except to his report upon which the rule was 
made absolute, it is too late to object to the order as void for want of 
jurisdiction. In re Carrier, 48 Fed. Bep. 161. 

Judge Drummond held that mere irregularities in the proceedings of 
the court of bankruptcy did not dejfrive the court of its jurisdiction over 
the bankrupts and their estate, nor permit creditors to proceed against 
them In a state court. In re Williams et al., 6 Biss. 233; 29 Fed. C^s. 1318. 

When the petitioning creditors fail to appear on the return day, other 
creditors may intervene and pray an adjudication in bankruptcy. In re 
Sheffer, 4 -Saw. 363; 17 N, B. R. 369; 21 Fed. Cas. 1225. 

While a previous petition is pending, a second one, setting forth the 
same debt and the same creditors, will be stayed. In re Wielarskl, 4 Ben. 
468; 29 Fed. Cas. 1154. 

The creditor, although having the burden, is not required to make full 
and complete proof of the fact of insolvency, since the debtor best knows 



166 The Bankeuptct Law. 

the condition of his affairs. In re Oregon Bulletin Printing & Pub. Oo., 
13 N. B. R. 506; 18 Fed. Oas. 773 (1876). 

Service may be made upon a corporation by delivering a copy of the 
subpoena to one of its principal officers at its principal place of business. 
In re California P. R. Co., 3 Saw. 240; 4 Fed. Cas. 1061. 

A railroad company was chartered in each of four states. Proceedings 
in involuntary bankruptcy were commenced in one of them, and an order 
to show cause was served on the general superintendent in another. 
Held, that the service was not sufficient, the words " if such debtor can- 
not be found " meaning " found in the district." The service should have 
been by publication. Ala. & O. R. R. Co. v. Jones, 5 N. B. B. 97; 1 Fed. 
Cas. 275. 

The court denied an application of an assignee in bankruptcy for an 
order directing substituted service of a subpoena, holding that the man- 
ner of serving a subpoena is governed by the acts of congress and rules 
of the supreme court; that if the defendants be inhabitants of the district 
or found therein, the subpoena might be served under rule 13, and that if 
they were not, there was no power in the court to obtain jurisdiction 
over their person. Hyslop v. Hoppock et al., 5 Ben. 533; 12 Fed. Cas. 1141. 

The affidavit of service of the petition and order to show cause did not 
state the venue; it was verified before a notary public, and did not show 
that the petition and order were served on the bankrupt personally. In 
the same case, no order of publication was made. The court held there 
was nothing jurisdictional in these irregularities; that the debtor had 
waived them by applying for a discharge, and that his action was binding 
on all creditors whose debts were provable. In re Getchell, 8 Ben. 256; 
10 Fed. Oas. 268. 

The burden of proof to establish acts of bankruptcy is on the petition- 
ing creditor. Brock v. Hoppock, 2 N. B. R. 7; 4 Fed. Oas. 197. 

A fraudulent transfer by the petitioner under the Act of 1841, before 
the passage of the Act, was held not to be a sufficient cause to prevent 
an adjudication of bankruptcy. In re Houghton, 4 Law Rep. 482; 12 
Fed. Cas. 586 (1842). 

Under section 16 of the Act of 1867, it was held that when the petitioner 
became bankrupt after filing a petition of involuntary bankruptcy against 
another person, his assignee could be substituted. In re Jones, 7 N. B. B. 
506; 13 Fed. Cas. 935. 

Judge Ballard, of the district court of Kentucky, refused to answer 
abstract questions addressed to him by the assignee, or questions that 
had not arisen in the course of proceedings before the register. In re 
Sturgeon, 1 N. B. R. 498; 23 Fed. Oas. 307. 

The court refused to answer questions certified by the register when 
it did not appear from the certificate that they had arisen in the course 
of proceedings before him. In re Peck, 3 N. B. R. 757; 19 Fed. Cas. 74. 

Where the petition was so delayed that certain transfers which have 
been attacked could not be attacked after the filing, the delay does not 
impair or invalidate the proceedings. In re Duncan et al., 8 Ben. 365; 8 
Fed. Oas. 1. 



OOUETS AND PbOOEDUKE THEREIN. 167 

A verdict of a jury on the question whettier an act of bankruptcy has 
been committed does not affect the question whether the banlirupt should 
be discharged, or whether the property, the transfer of which was an 
alleged act of bankruptcy, should be retained by the transferee. In re 
Dibblee et al., 3 Ben. 283; 7 Fed. Cas. 651. 

On a proper showing, the district court as a court of bankruptcy may 
open a decree and grant a rehearing on the ground of newly-discovered 
evidence. Judge Drummond expressed the opinion that the circuit court 
may peremptorily order the district court to do so. In re Great Western 
Tel. Co., 5 Blss. 1050; 10 Fed. Oas. 1053. 

The only proof in support of an involuntary petition was the statement 
of the alleged bankrupt that he had sold a stock of goods to his wife for 
$5,000 and lost the money. The court decided that no act of bankruptcy 
was proved, for if the statement proved the sale, it also proved the loss 
of the purchase price. In re Franklin, 8 Ben. 233; 9 Fed. Oas. 709. 

On a trial on a petition charging acts of bankruptcy and a denial by 
the bankrupt, it is not necessary that the petitioning creditor make proof 
of his debt. Phelps v. Olasen, Woolw. 204; 19 Fed. Cas. 445. 

Acts of bankruptcy being in proof, the court will not permit an inquiry 
to be made into alleged collusion between one of the bankrupts and the 
petitioning creditors. In re Bininger et al., 7 Blatchf. 262; 3 Fed. Cas. 412. 

When the petition for review is not filed at the same term at which the 
decree is made, it cannot be entertained, the rule requiring bankruptcy 
proceedings to conform when applicable to equity practice. In re Ander- 
son, 23 Fed. Rep. 482. 

An attorney for a corporation may appear and admit acts of bankruptcy 
without a vote of the stockholders conferring such authority. Leiter et 
al. V. Rep. Fire Ins. Co., 7 Biss. 26; 15 Fed. Cas. 274. 

Justice Daniel decided under the Act of 1841 that a debtor cannot be 
adjudged a bankrupt when he omits debts from his schedule of liabilities, 
nor when he had contracted debts in a fiduciary character, notwithstand- 
ing he had debts not of such a character. In re Hardison, 4 Law Rep. 
255; 11 Fed. Cas. 498 (1842). 

A marshal's return to a warrant must show full compliance with the 
provisions of section 12 of the Act of 1867, and general order number 13. 
In re Ferris et al., 6 Ben. 473; 8 Fed. Cas. 11&4. 

Effect of Adjudication. 

An adjudication of bankruptcy is not subject to legislative control, and 
hence is not affected by a subsequent act of congress. In re Raffauf, 6 
Biss. 150; 20 Fed. Oas. 165. 

A petition in bankruptcy was held to be an action, and an adjudication 
thereon a final judgment, which even congress cannot annul or set aside. 
In re Comstock et al., 3 Saw. 128; 6 Fed. Cas. 241. 

An adjudication of bankruptcy is a judgment, and cures irregularities 
that did not go to the jurisdiction of the court. In re Getchell, 8 Ben. 
256; 10 Fed. Cas. 268. 



168 The Banketjptct Law. 

An adjudication in bankruptcy is a notice to all the world, being in the 
nature of a judgment in rem. In re Wallace, Deady, 433; 29 Fed. Cas. 65. 

An adjudication of bankruptcy against a corporation is in the nature of 
a decree in rem. Lamp Chimney Oo. v. Ansonia Brass Co., 91 U. S. 656. 

Proceedings in bankruptcy are proceedings in rem when they affect only 
the assets, but as to other property, they bind only those who have 
notice. In re Judkins, 2 Hughes, 401; 13 Fed. Cas. 1193. 

Where the plaintiff and the parties whom he represented formed an 
integral part of a corporation which had been adjudged to be bankrupt, 
they are parties to the proceedings in bankruptcy, and cannot attack it 
in a collateral action. Graham v. Boston H. & E. R. Co., 14 Fed. Rep. 753. 

An adjudication of bankruptcy where the court had jurisdiction is con- 
clusive of the facts decreed against persons claiming an adverse interest 
in the property of the bankrupt. Chapman v. Brewer, 114 U. S. 158. 

An adjudication in involuntary proceedings is evidence as to the per- 
sons not parties of the commission of the act of bankruptcy, and that 
there was a debt due the petitioning creditor. Shawhan v. Wherritt, 7 
How. 27. 

Impeadhinent of Adjudication. 

An adjudication in bankruptcy cannot be impeached collaterally by a 
party to the proceedings, and shareholders of a corporation are parties to 
bankruptcy proceedings against it. ■ Graham v. Boston H. & E. R. Co., 118 
U. S. 161. 

Held, under the Act of 1841, that creditors cannot attack an adjudica- 
tion of bankruptcy collaterally, but are bound as by a decree in rem. 
Shawhan v. Wherritt, 7 How. 627. 

An adjudication in bankruptcy against a corporation is in the nature of 
a decree in rem as respects the status of the corporation, and when the 
court had jurisdiction, and the adjudication is correct in form, and due 
notice was given, it cannot be attacked, in a collateral proceeding. New 
Lamp Chimney Co. v. Ansonia B. & C Co., 91 TJ. S. 656. 

The signing and verification of a voluntary petition by an agent of the 
debtor is suflicient to sustain the jurisdiction of the court against a col- 
lateral attack. Wald v. Wehl, 6 Fed. Rep. 163. 

An order of the district court, adjudicating a debtor a bankrupt, made 
after the return day, and upon a petition of a creditor and after notice to, 
and appearance by, the debtor, though it may be irregular, is not void, 
and cannot be collaterally assailed by the assignees under a previous 
voluntary assignment. Hobson et al. v. Markson et al., 1 Dill. 421; 10 Fed. 
Cas. 269. 

A creditor who had obtained a preference by attachment was heard by 
the court on a petition to set aside an adjudication in bankruptcy. In re 
Donnelly, 5 Fed. Rep. 783. 

The court annulled an adjudication of bankruptcy in voluntary pro- 
ceedings where all the claims had been paid by assignment to one creditor, 
who released the bankrupt. Case of Stern, 22 Fed. Cas. 130O. 



Courts akd Proceduee Therein. 169 

Five months after the bankrupt had united with his partners In a 
voluntary petition, he moved to set aside the adjudication on the ground 
that he was misled by his partners by fraudulent representations; that 
the firm was not in fact insolvent, etc. Held, that the motion would not 
be entertained in view of the fact that the rights of the creditors had 
become fixed with his acquiescence. In re Court et al., 17 N. B. R. 555; 
6 Fed. Cas. &i8. 

The court ordered the annullment of an adjudication upon the assent 
of all the known creditors, and after the publication of notice of the 
application. In re Magee, 16 Fed. Oas. 382. 

Where the return of the marshal showed due service, an adjudication 
in bankruptcy will not be set aside on the motion of a. creditor who 
swears that he did not receive notice of the adjudication. In re Groome, 

I Fed. Rep. 464. 

It is not necessary that an attaching creditor should be a party to the 
proceedings in bankruptcy to authorize him to move to set aside an 
adjudication. In re Bergeron, 12 N. B. R. 385; 3 Fed. Cas. 266. 

Attorneys had appeared for an insolvent insurance company, and con- 
sented to an adjudication. Six months later, after several hundred 
thousand dollars of assets had been collected and were ready for dis- 
tribution, certain stockholders moved to set aside the proceedings. The 
court refused on the ground of laches. In re Rep. Ins. Co., 8 N. B. R. 317; 
20 Fed. Cas. 552. 

Where the debtor confesses the acts of bankruptcy charged in the peti- 
tion, and a trustee is appointed, a creditor who has proved his debt can- 
not be heard on a motion to set aside the adjudication. In re Thomas, 

II K B. B. 330; 23 Fed. Cas. 932. 

An application to set aside an adjudication will not be heard without 
notice to the bankrupt. In re Bush, 6 N. B. R. 179; 4 Fed. Cas. 879. 

An adjudication will not be set aside because the debtors solicited 
creditors' to join in the petition. In re Duncan et al., 8 Ben. 365; 8 Fed, 
Cas. 1. 

Dismissal of Proceedings. 

When there is but one creditor, the alleged bankrupt is entitled to have 
bankruptcy proceedings against him dismissed upon payment of the debt 
In re Sherman, 8 N. B. R. 353; 21 Fed. Cas. 1222 (1873). 

All parties whose interests might be affected must consent before a 
petition in voluntary bankruptcy can be withdrawn; but it seems that 
the assent of the assignee is not always necessary. In re Gile, 5 Law Rep,' 
224; 10 Fed. Cas. 369 (1842) 

Where the bankrupt had settled all his claims but a few that were 
contested, it was held that proceedings in bankruptcy might be dis- 
missed upon security being given to creditors who did not consent to t'le 
dismissal. In re Great Western Tel. Co., 5 Biss. 1059; 10 Fed. Oas. 1053. 

Where a bankrupt has made a settlement and signed a stipulation by 
which the proceedings were dismissed, the court in bankruptcy will not 



170 The Bankhuptct Law. 

set It aside until he has secured relief in a separate suit. In re Bieler, 7 
N. B. R. 552; 3 Fed. Cas. 339. 

An adjudication may be made on a day subsequent to the time fixed in 
the order of reference; but if the bankrupt does not appear within a 
reasonable time, his petition will be dismissed. In re Hatcher, 1 N. B. R. 
390; li Fed. Cas. 814. 

A petition in involuntary bankruptcy will be dismissed where the 
alleged bankrupt denies that the petitioner is a creditor, and establishes 
the denial by proof. In re Cornwall, 9 Blatchf. 114; 6 Fed. Cas. 586. 

After the filing of a petition, the petitioning creditor commenced a suit 
at law against the bankrupt and prosecuted it to judgment. Held, that 
this was not sufllcient ground for dismissing the petition in bankruptcy. 
Van Kleeck et al. t. Thurber, 28 Fed. Cas. 1081 (1842). 

Tkial by Juhy. 

§ 19. Jury Trials. — (a.) A person against whom an involuntary 
petition has been filed shall be entitled to have a trial by jury, in re- 
Bjiect to the question 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 such appli- 
cation 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 jurisdic- 
tion 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. 

Judge Blatchford expressed doubt whether under the Act of 1867 a jufy 
could be demanded on any day but the return day. In re Pupke et al., 1 
Ben. 342; 20 Fed. Cas. 59. 

Under the Law of 1867 an involuntary bankrupt could not demand a 
trial by jury if he did not appear on the return day of the rule. In re 
Gebhardt, 3 N. B. R. 268; 10 Fed. Cas. 141. 



CouBTS AND Procedure Therein. 171 

Held, under rule 24 in pursuance of the Act of 1867, that it Is not too 
late to ask for a jury trial when specifications in opposition to a discharge 
are set for hearing. In re Hoist, 11 Fed. Rep. 856. 

Held, under the Act of 1867 (sections 21980, 4984, R. ,S.), that a creditor 
who appealed to the circuit court from an order disallowing a claim had 
a right to a jury trial. Thistle v. Hamilton, 4 Dill. 162; 23 Fed. Oas. 920. 

Under the Act of 1841, it was held that the district court had power to 
set aside the verdict of a jury which tried an issue under section 4 of 
that Act, and to order a new trial in accordance with the principles ob- 
served by courts of law. Ex parte Corse, 1 N. Y. Leg. Obs. 231; 6 Fed. 
Oas. 600. 

A court of bankruptcy has the same power over verdicts of juries that 
is exercised by courts of common law, and may in proper cases set them 
aside and order a new trial. In re De Forest, 9 N. B. R. 278; 7 Fed. Cas. 
368. 

Administration of Oaths. 

§ 30. Oaths, Affirmations. — (a.) Oaths required by this Act, ex- 
cept upon hearings in eouTt, may be administered by (1) referees ; (2) 
ofBeers authorized 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 ofScers of the United 
States in any foreign country. 

(h.) 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. 

Judge Blatchford dismissed a petition under the Act of 1867 that was 
verified before a notary public. In re Heller et al., 11 Fed. Oas. 1052. 

Evidence. 

§ 31. Evidence. — (a) A court of bankruptcy may, upon appli- 
cation of any officer, bankmpt, or creditor, by order require any desig- 
nated person, including the bankrupt, who is a competent witness 
under the laws of the State in which the proceedings are pending, to 
appear in court or before a referee or the judge of any State court, to 
be examined concerning the acts, conduct, or property of a bankrupt 
whose estate is in process of administration under this Act. 

(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. 



irS The Bankbuptct Law. 

(c.) Notice of the taking of depositions shall be filed with the 
referee in every ease. When depositions are to be taken in opposi- 
tion to the allowance of a claim notice shall also be served npon the 
claimant, and when in opposition 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 and effect as certified copies of the records of district courts 
of the United States are now or may hereafter be admitted as evi- 
dence. 

(e.) A certified copy of the order approving, the bond of a trustee 
shall constitute conclusive evidence of the vestipg 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 com- 
position, or granting or setting aside a discharge, not revoked, shall 
be evidence of the jurisdiction of the court, the regularity of the pro- 
ceedings, 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 
fram the trustee to the bankrupt if recorded would impart. 

Exammation of tlie Bankrupt. 

It is tlie duty of a creditor who wishes to examine the bankrupt to 
move in the matter, and the bankrupt has no other duty than to attend 
on notice. In re Littlefield, 1 Low. 331; 15 Fed. Cas. 624. 

The fact that a bankrupt has already answered a question will not 
excuse him for refusing to answer when asked by another creditor. In 
re Vogel, 5 N. B. K. 393; 28 Fed. Cas. 1244. 

Where the bankrupt had testified that he did not own certain property, 
it was held that all further questions relating to it were irrelevant. In 
re Van Tuyl, 1 N. B. R. 63S; 28 Fed. Cas. 1088. 

The bankrupt may be required to appear for examination on the applica- 
tion of a creditor, notwithstanding a trustee and committee of creditors 
have been appointed under section 43 of the Act of 186Y. In re CooKe 
et al., 10 N. B. E, 146; 6 Fed. Oas. 418. 

A bankrupt was Interrogated concerning property of his wife, and his 
own acts relating thereto. The bankrupt refused to answer on the ground 
that the transactions occurred prior to the time when the creditor's debt 
was contracted. The court required him to answer. In re Oraig, 3 N. B. 
R. 100: 6 Fed. Oas. 711. 



Courts and Procedure Thereik. '173 

A creditor has a right to require of the bankrupt a full disclosure under 
oath of everything relating to his estate, but where there has been one 
examination, and ample opportunity has been afforded to creditors, an 
application for further examination will be refused. In re Frisble, 13 N. 
B. R. 349; 9 Fed. Gas. 961. 

At the first meeting of creditors a debt was proven as secured by 
certain liens and an assignment, the value and extent of which security 
was unknown to the creditor so secured. Held, that such creditor was 
entitled to examine the alleged bankrupt on oath. In re Schwab, 8 Ben. 
353; 21 Fed. Gas. 764 (1876). 

The pendency of composition proceedings suspended the right of a 
creditor to examine the bankrupt under the Act of 1867 (section 5086, R. 
S.). In re TifEt, 18 N. B. R. 177; 28 Fed. Gas. 1212. 

It Is not competent to examine a bankrupt on the question whether a 
debt was created by fraud. In re Rosenfield, 1 N. B. R. 575; 20 Fed. Oas. 
1202. 

A bankrupt cannot be required to give an answer to a question which 
might render him summarily liable for an offense under the Bankrupt 
Act of 1867. In re Patterson, 1 N. B. R. 152; 18 Fed. Gas. 1319 (1867). 

A bankrupt, on his examination, may decline to answer any question 
which he cannot answer without incriminating himself. In re Kock, 1 
N. B. R. 549; 14 Fed. Oas. 832. 

A bankrupt cannot refuse to answer questions put to him on an ex- 
amination concerning property in which it is alleged that he has an 
interest In re Bonesteel, 2 N. B. R. 330; 3 Fed. Gas. 8i9. 

Where the allegations in the creditor's proof are' not denied by the 
bankrupt, creditors will not be allowed to examine the bankrupt to prove 
the nature of the transaction out of which the indebtedness arose, for 
the purpose of disclosing facts which vrould bar a discharge. Such ex- 
amination is wholly irrelevant. In re Wright, 2 Ben. 509; 2 N. B. R. 
142; 30 Fed. Gas. 656 (1868). 

A claim of a creditor having been proved was disputed by the bank- 
rupt as invalid for usury. Held, that notwithstanding the objections of 
the bankrupt and other creditors, the creditor whose claim was disputed 
had the right to examine the bankrupt before the election of an assignee. 
In re Winshlp, 7 Ben. 19i; 30 Fed. Oas. 306 (1874). 

Creditors who have proved their claims are entitled to an order for 
an examination of the bankrupt, notwithstanding their claims are con- 
tested. In re Belden et al., 4 N. B. R. 194; 3 Fed. Oas. 82. 

A bankrupt who left the district after an order for an examination will 
be denied a discharge until he has submitted to an examination. In re 
Kingsley, 16 N, B. R. 301; 14 Fed. Gas. 590. 

A bankrupt, after examination, has the right to be cross-examined, or 
further examined in his own behalf, after the creditor or assignee has 
concluded, so far as may be necessary, to explain or qualify matters pre- 
viously brought out apparently unfavorable to himself, or matters which 
are obscure. In re Moles, 2 Low. 362; 18 Fed. Gas.' 464. 



174 The Bankeuptcy Law. 

It was held under section 26 of the Act of ISe^, and general order 
number 10, that a bankrupt could be examined and cross-examined like 
any other witness. In re Levy et al., 1 Ben. 496; 15 Fed. Gas. 427. 

A bankrupt attending as witness at the instance of a creditor was held 
not to be entitled to fees under the Act of 1867. In re McNair, 3 N. B. R.' 
219; 16 Fed. Oas. 315. 

A bankrupt is not entitled to an allowance of witness fees upon his 
examination in bankruptcy. In re O'Kell, 2 Ben. 144; 18 Fed. Oas. 632 
(1868). 

On a hearing in bankruptcy a creditor is only bound to pay the ex- 
penses of his own examination. If the bankrupt makes further state- 
ments after his examination by the creditor is closed, he becomes his 
own witness, and must pay the expenses. In re Mealy, 2 N. B. R. 128; 
16 Fed. Oas. 1302. 

Upon the examination of a bankrupt, his attorney may attend and 
object to improper questions, but the bankrupt cannot consult with his 
attorney, unless the register can see cause therefor. In re Tanner, 1 
Low. 215; 23 Fed. Gas. 687. 

It is not permissible for a bankrupt during his examination to consult 
with his counsel before answering questions, except by leave of the 
court or register. In re Oollins, 1 N. B. R. 551; 6 Fed. Oas. 116. 

The bankrupt, while under examination, should have the privilege of 
consulting vrith his counsel in relation to his answers, providing such 
consultation does not cause delay in the proceedings. In re Patterson, 
1 N. B. R. 125; 18 Fed. Gas. 1315 (1867). 

Judge Fox, of the district court of Maine, said that while he did not 
approve of the bankrupt consulting with his counsel on his examination, 
the question must be determined by the register according to the cir- 
cumstances of each particular case. In re Lord, 3 N. B. R. 253; 15 Fed. 
Gas. 872. 

It was held to be competent under the Act of 1867, on the examination 
of the bankrupt, for his own counsel to cross-examine him. In re Leach- 
man, 1 N, B. R. 391; 15 Fed. Gas. 97. 

The bankrupt was arrested on process in a civil action, while on his 
way to the register's office for the purpose of Ueing examined. Judge 
Blatchford ordered that he be released so as to attend the examination; 
but decided that as soon as his privilege as a witness should cease, he 
might be rearrested. In re Kimball, 2 Ben. 38; 14 Fed. Oas. 474. 

Under the Act of 1867, an order for the examination of a bankrupt could 
only be made on a verified petition or affidavit shoviring good cause for 
the granting of the order. In re Adams, 2 Ben. 503; 1 Fed. Gas. 78. 

It was held unnecessary that an application of an assignee for the 
examination of the bankrupt should be verified, or that it should specify 
the reasons for the same, or the matters upon which it was proposed 
to examine him. In re Lanier, 2 N. B. R. 154; 14 Fed. Oas. 1116. 

The fact that one creditor has examined the bankrupt is no reason for 
withholding the privilege from another creditor. But the bankrupt must 



COUETS AND PeOOEDUEB THEREIN. 175 

be protected as to such examination from annoyance, oppression, and 
mere delay. In re Adams, 3 Ben. 7; 1 Fed. Oas. 81. 

After the examination of the banliriipt had commenced, he moved to 
vacate the order because it was not founded on an aflldavit. The 
register denied the motion, and the court sustained his action. In re 
McBrlen, 2 Ben. 513; 15 Fed. Oas. 1218. 

On an oral application, the register made an order for the examina- 
tion of the bankrupt. On objection by the bankrupt Judge Blatchford 
held that the granting of the order was a matter of discretion, and that 
the facts did not show that the discretion was abused. In re Solace, 

4 Ben. 143; 22 Fed. Oas. 782. 

The register made an order for the examination of a bankrupt, reciting 
that it was made on the application of parties claiming to be interested 
and who had duly proved their debt. The application was not verified. 
It was held that the order was properly issued. In re Vetterleln et al., 

5 Ben. 7; 28 Fed. Gas. 1170. 

An opportunity should be given for a full examination of the bank- 
rupt as to all of his transactions; but It Is not good practice to give 
such an opportunity to each creditor separately. A second examination 
will not be ordered except for cause shown. In re Gilbert, 1 Low. 340; 
10 Fed. Gas. 344. 

Examination of the bankrupt had been ordered on the application of 
a creditor who had proved his claim. The bankrupt refused to be sworn, 
saying that he had a set-off which extinguished the debt of the creditor. 
The court held that he must submit to an examination. In re Kingsley, 

6 Ben. 300; 14 Fed. Oas. 587. 

A bankrupt who had indorsed a note before the commencement of 
proceedings, and who had thereafter been discharged, was held not to 
be barred as a witness for the Indorsee on the ground of interest. Mur- 
ray et al. V. Marsh et al., 1 Brun. Col. Oas. 22; 17 Fed. Gas. 1059 (1803). 

It was held under the Act of 1867 that a bankrupt, on his examination 
before a register, could be examined to show that the debt to the cred- 
itor making the examination was fraudulently contracted. In re Kock, 
1 N. B. R. 549; 14 Fed. Oas. 832. 

A bankrupt was asked on examination whether, after filing his peti- 
tion, he did not make a deposit of some thousands of dollars In money. 
The court held that the question was proper and relevant, and must be 
answered. In re McBrien, 3 Ben. 481; 15 Fed. Oas. 1219. 

A bankrupt on examination will answer or refuse to answer a ques- 
tion at his own risk. If he refuse, the question should be certified to 
the court, and thereupon the judge will decide whether the question was 
a proper one. In re Rosenfield, 1 N. B. R. 319; 20 Fed. Oas. 1205. 

A bankrupt was asked: "With what firm, If any, are you at present 
connected, or are your transactions made by you individually? " The 
bankrupt having stated that the question had no connection with his 
business prior to the date of filing his petition, the court sustained his 
refusal to answer. Ibid. 



176 The Bankruptcy Law. 

On the day appointed for the examination of the bankrupt, a creditor 
failed to appear. Another day was appointed on which the bankrupt 
failed to appear. Both appeared on a subsequent day, and the examina- 
tion proceeded. The district court refused to interfere with the examina- 
tion. In re Robinson et al., 2 N. B. R. 516; 20 Fed. Cas. 982. 

Under the Act of 1867 the register could pass upon the admissibility 
of questions on the examination of a bankrupt, and at the close of the 
testimony entertain motions to strike out answers or admit questions 
that he had excluded, and thereupon certify the questions for the deci- 
sion of the court. In re Lyon, 1 N. B. R. Ill; 15 Fed. Gas. 1179. 

Under the Act of 1867 it was held that the register had no right to 
fix an arbitrary limit to the examination of the bankrupt, though he 
could interpose to prevent vexation and delay. In re Tift, 17 N- B. R. 
421; 23 Fed. Cas. 1219. 

Under the Act of 1867 the register had no power to fix an arbitrary 
limit to the examination of a bankrupt in composition proceedings. In 
re Waitzfelder et al., 8 Ben. 423; 28 Fed. Cas. 1342. 

Two years after bankrupt's discharge, the assignee sought to recover 
assets alleged to have been fraudulently omitted from the bankruptcy 
schedule. Held, that the assignee was not entitled to examine the bank- 
rupt for the purpose of securing evidence of such assets. In re Wit- 
kowskl, 10 N. B. R. 209; 30 Fed. Cas. 403 (1874). 

Judge Blatchford held that a bankrupt could be subjected to an ex- 
amination under section 26 of the Act of 1867, more than two years after 
he had received his discharge. In re Heath et al., 7 N. B. R. 448; 11 
Fed. Cas. 975. 

When it is desired to examine a bankrupt after his discharge as to 
property alleged to have been fraudulently transferred, a plenary suit 
is necessary. In re Dole, 11 Blatchf. 499; 7 Fed. Cas. 828, 832. 

After his discharge, a bankrupt cannot be required by summary peti- 
tion to submit to an examination concerning property alleged to have 
been fraudulently transferred. Ibid. 

The testimony of the bankrupt was held to be inadmissible to prove 
a claim by his wife, for money alleged to have been loaned to him out 
of her separate estate. Bechtel's Case, 3 Fed. Cas. 16. To the contrary 
efeect, see In re Bean, 14 N. B. R. 182; 2 Fed. Cas. 1120'. 

Th.e Wife of the Bankrupt. 

The wife of the bankrupt, and all parties to the proceedings, are com- 
petent witnesses in bankruptcy. In re Anderson, 23 Fed. Rep. 482. 

The wife of a bankrupt must attend and submit to an examination 
in bankruptcy proceedings the same as any other witness. In re Wool- 
ford, 4 Ben. 9; 30 Fed. Oas. 602 (1870). 

The district court for the district of Massachusetts held that a creditor 
who was the wife of a bankrupt was a competent witness in bankruptcy 
proceedings. In re Richards, 17 N. B. R. 562; 20 Fed. Cas. 692. 



CouBTS AND Pkocedube Thereik. 177 

It was held under the Act of 1867 that the wife of a bankrupt was not 
obliged to appear for examination until she was paid her fees as a wit- 
ness. In re Van TuU, 2 N. B. R. 70; 28 Fed. Cas. 1090. 

The wife of a bankrupt cannot be examined concerning the admissions 
of her husband as to his dealings with third persons; but may be re- 
quired to testify to transactions to which she was a party or witness. 
In re Gilbert, 1 Low. 340; 10 Fed. Cas. 344. 

When the wife of a bankrupt is obliged to attend and be examined 
as a witness, she Is entitled to per diem and mileage. In re Griffen, 2 
Ben. 209; 11 Fed. Gas. 4. 

When the wife of a bankrupt disobeyed a subpoena to testify, it was 
held that the proper proceeding was an order to show cause, and that 
an attachment should not be issued. In re Bellls et al., 3 N. B. R. 270; 3 
Fed. Cas. 135. 

The wife of a banljrupt, on examination before the register, refused 
to answer certain questions because the matters concerned her private 
business. Her refusal was certified to the court, and she was ordered 
to answer. In re Craig, 4 N. B. R. 50; 6 Fed. Oas. 712. 

An order had been made for an examination of the bankrupt's wife, 
and served on the bankrupt. She failed to attend, and a discharge was 
refused unless he should prove that he was unable to procure her attend- 
ance. In re Van Tuyl, 3 Ben. 237; 28 Fed. Cas. 1088. 

The vrife of a bankrupt cannot be compelled to testify as a witness 
against her husband on a motion to set aside the discharge. So held 
under the Act of 1867. Tenny et al. v. Collins, 4 N. B. R. 477; 23 Fed. 
Cas. 848. 

Other Witnesses. 

W. had been enjoined from disposing of any property received from the 
bankrupts during the four months preceding the adjudication. There- 
after he was summoned as a witness before the register. An objection 
by the bankrupts to his being examined on the ground that he had been 
made a party to the proceedings was overruled, as was also a claim made 
by W. to a right to be attended by counsel on such examination. In re 
Feinberg et al., 3 Ben. 162; 8 Fed. Cas. 1126. 

Referring to the Act of 1867, Judge Lowell said: " As the law stands 
I think the register must have the power, subject to the reviewing power 
of the court, to conduct the Inquiries (in composition proceedings) and 
to take down the substance of the answers, and to adjourn the meeting 
by consent of parties, and even, in some cases, against the wishes of one 
or the other; but not to conduct a written examination of the length which 
this appears to threaten, nor to permit all the inquiries and investigation 
which would be proper in bankruptcy, and in most cases, I think he would 
be justified in refusing to permit the inquiries to extend beyond the day 
of the meeting." In re Proby, 17 N. B. R. 175; 20 Fed. Oas. 1. 

The register having certified to the court the refusal of a witness to 
answer certain questions. Judge Cadwalader used this language: " The 

12 



178 The Bankeuptct Law. 

register holding provisionally the court of banliruptcy should have de- 
clared on the examination before him the opinion which he now certifies, 
and should have ordered the examinant to answer the questions. If an 
exception to this ruling of the register had then been taken, which is 
very improbable, he should have certified it for the summary considera- 
tion of the court, the examination proceeding in its other parts. If the 
witness, or the examinant, without such exceptions refused to answer 
the question, his contumacy should have been reported." In re Keakirt, 
7 N. B. R. 329; 20 Fed. Cas. 368. 

The proper practice under section 26 of the Act of 1867 was held to 
be that the register should pass upon objections to questions and enter 
exceptions to his ruling. At the close, the questions thus raised should 
be certified to the judge for his decision, and subsequent proceedings be 
governed by such decision. In re Levy et al., 1 N. B. B. 105; 15 Fed. 
Cas. 432. 

In the examination of witnesses in proceedings in bankruptcy, the 
privilege of communications between attorneys and clients must be re- 
spected; also that of letters written by one partner to another on the 
business of the firm. In re Krueger et al., 2 Low. 182; 14 Fed. Cas. 870. 

The court will expunge the proof of a claim where the creditor refuses 
to obey an order for an examination. In re Kyler, 2 Ben. 414; 14 Fed. 
Oas. 887. 

An attorney being examined as a witness cannot add to the oath which 
he takes a reservation of a right to refuse to answer any question that 
comes within his privilege. In re Adams, 6 Ben. 56; 1 Fed. Cas. 82. 
Neither can he refuse to be sworn nor object until some question is asked 
which invades his privilege. In re Woodward, 4 Ben. 102; 30 Fed. Cas. 
541. He cannot be compelled to disclose any information as to the affairs 
of the bankrupt which he received as his attorney from the bankrupt, 
or from a person to whom he was referred by the bankrupt for the pur- 
pose of obtaining such information. In re Aspinwall, 7 Ben. 433; 2 Fed. 
Cas. 64. 

It may be established by oral testimony that the building in which 
the bankrupt firm conducted its business was a part of the capital stock 
contributed to the business of the partnership. In re Farmer et al., 18 
N. B. R. 207; 8 Fed. Cas. 1019. 

Under the Act of 1867, the register could not require anyone but the 
debtor to testify at a meeting of creditors held to take action on a pro- 
posed composition. In re Dobbins, 18 N. B. R. 268; 7 Fed. Cas. 781. 

Held, that the power conferred in section 26 by the Act of 1867, to 
discover assets by the examination of the bankrupt, ceases with the 
discharge, but will be revived upon its being set aside. In re Jones, 6 N. 
B. R. 336; 13 Fed. Cas. 935. 

In sustaining the refusal of a witness to answer a question on cross- 
examination in bankruptcy, Judge Blatchford used this language: " As 
the question did not relate to any matter of fact in issue, nor to any 
matter contained in hH direct testimony, and as a truthful answer to It 



Courts and Proceduke Therbiit. 179 

would tend to degrade him, he was not bound to answer it." In re Lewis, 
4 Ben. 67; 15 Fed. Gas. 453. 

Under the Act of 1867 it was not necessary that notice be given to the 
bankrupt of the examination of a witness at the instance of the assignee. 
In re Levy et al., 1 Ben. 454; 15 Fed. Cas. 425. 

The attorney for the banlirupt was called as a witness by parties op- 
posing their discharge, but he refused to be sworn. The court ordered 
that he be sworn and examined. In re Leland et al., 8 Ben. 204; 15 Fed. 
Cas. 290. 

A witness who had purchased claims against the banlirupt swore on 
examination that he had not obtained the money from the banlirupts or 
either of them; but refused to answer from whom he had obtained it. 
The court held that he must answer. In re Lathrop et al., 4 N. B. R. 
93; 14 Fed. Cas. 1179. 

It is not an absolute right of a witness during his examination In 
bankruptcy to consult with his counsel; but it may be permitted by the 
register for good cause. In re Judson, 2 Ben. 210; 14 Fed. Cas. 2. 

A witness will be required on a hearing in bankruptcy to answer all 
proper questions relating to his transactions with the bankrupt prior 
to the proceedings, and to produce any necessary books of account con- 
taining information concerning such dealings. In re Earle, 3 N. B. E. 
304; 8 Fed. Cas. 251. 

A witness must answer questions concerning his dealings with the 
bankrupt, notwithstanding his answers might furnish evidence against 
himself in a civil case. In re Fay, 3 N. B. R. 660; 8 Fed. Cas. 1111. 

An attachment was asked for against witnesses for refusing to answer 
questions on an examination under a commission. The attachment was 
refused for the reason that no written interrogatories accompanied the 
commission, and the application did not set forth questions which the 
witnesses refused to answer. In re Glaser, 2 N. B. R. 398; 10 Fed. Cas. 
467. 

Two witnesses, on an examination in bankruptcy, were asked if they 
resided at a certain place, where a gambling house was kept. They re- 
fused to answer on the ground that the answer would tend to criminate 
them, and the court held that they were privileged from answering the 
question. In re Graham, 8 Ben. 419; 10 Fed. Cas. 913. 

An attorney may be required to disclose facts concerning his client's 
affairs that were not confided to him by his client. In re Donoghue, 2 
Hask. 17; 7 Fed. Cas. 899. 

A bill in equity asking for a discovery of the particular goods alleged 
to have been fraudulently transferred by a bankrupt was held bad on 
demurrer, the court deciding that the complainant could secure the de- 
sired information by compelling the preferred creditor to submit to an 
examination. Garrison v. Markley, 7 N. B. R. 246; 10 Fed. Cas. 53. 

An order on a creditor to submit to an examination respecting a claim' 
which he has proved imposes the burden of proof upon him, and in 
case of his failure to appear, the objections to the claim are to be taken 
as confessed. In re Lount, 11 N. B. R, 315; 15 Fed. Cas. 988. 



180 The Bankkuptct Law. 

An assignee had brought suit against A. for the possession of the bank- 
rupt's books, which he held as receiver of H.- under appointment of a 
state court. While this suit was pending, A. was summoned as a wit- 
ness before the register, and appeared, but refused to be sworn or to 
produce the books except upon an order of the court that appointed 
him. The court ruled that he was not privileged; that he must be sworn 
and produce the books, but that they should remain in his possession. In 
re Hulst, 7 Ben. 40; 12 Fed. Oas. 867. 

It was held by the United States circuit court for the district of Maine 
that the creditor of a bankrupt was not a competent witness for the 
assignee in a suit to increase the assets. Carr v. Hilton, 1 Ourt 390; 5 
Fed. Cas. 137 (1853). 

A refusal by a judgment creditor to be examined as to the question of 
usury in the debt upon which his judgment was founded was sustained 
by the court. McKinsey et al. v. Harding, 4 N, B. R. 38; 16 Fed. Oas. 
225. 

A witness on an examination in bankruptcy cannot refuse to answer 
a question unless It would accuse him of something penal or Infamous; 
the fact that It would subject him to a civil Injury Is not a sufficient 
excuse. In re Danforth, 6 Fed. Cas. 1150. 

In the case of a witness subpoenaed during the hearing on an applica- 
tion for a discharge, the bankrupt is not entitled to notice of such ex- 
amination, or to cross-examine the vritness. In re Duncan et al., 8 Ben. 
541; 8 Fed. Oas. 8. 

A creditor presenting a claim in bankruptcy subjects himself to the 
jurisdiction of the court, and upon being examined as to his debt is not 
entitled to witness fees. In re Paddock, 6 N. B. K, 396; 18 Fed. Cas. 975. 

In an examination a witness will be compelled to answer questions 
respecting his transactions with the bankrupt, and is not entitled to 
counsel, notvnthstanding his answers might establish a liability on his 
part. Creditors other than the examining creditor cannot Interpose ob- 
jections to questions addressed to such a witness. In re Stuyvesant Bank, 
6 Ben. 33; 23 Fed. Cas. 340. 

A creditor who Institutes an examination could be required to pay or 
secure the register's fees before the latter proceeds, under the Act of 1867. 
In re TifCt, 17 N. B. R. 550; 23 Fed. Cas. 1209. 

Held, under the Act of 1867, that the register could not, on the applica- 
tion of creditors, order the examination of a trustee appointed In pur- 
surance of section 43. In re Hicks et al., 2 Fed. Rep. 851. 

The right to refuse to answer a question on the ground of privilege 
does not warrant refusal by counsel for a bankrupt to be sworn as a 
witness. Privilege cannot be Interposed until a question is asked which 
invades the privilege. In re Woodward, 4 Ben. 102; 30 Fed. Cas. 541 
(1870). 

The provisions of section 876, R. S., as to subpoenas for, and attendance 
of, witnesses apply in bankruptcy. In re Woodward, 8 Ben. 112; 30 Fed. 
Oas. 542 (1875), 



Courts and Peoceduee Thereix. 181 

It was held that each party In bankruptcy proceedings is chargeable 
with fees for testimony on direct and cross-examination, respectively, 
talicen by such party. Scofleld v. Morehead, 2 N. B. E. 1; 21 Fed. Cas. 780 
(1868). 

Judge Choate used this language: "I see no objection to one creditor's 
proceeding in an examination commenced by another if that examina- 
tion Is Incomplete or leaves matters that may aid the creditors in voting 
on the composition uninvestigated." In re Vanderhoef et al., 28 Fed. 
Cas. 966. 

Judge Wallace decided under the Act of 1867, that an assignee in bank- 
ruptcy may be required to testify in the same manner as any other wit- 
ness; but that It was the duty of the register to protect him from un- 
necessary annoyance. In re Smith, ^14 N. B. R. 432; 22 Fed. Oas. 403. 

A debtor issued a series of bonds with interest coupons payable to 
bearer, and secured the same by a mortgage of real estate to trustees. 
Held, that the bonds were negotiable instruments, and that the considera- 
tion could not be Inquired into upon an examination In bankruptcy. In 
re Leland et al., 6 Ben. 175; 15 Fed. Oas. 27& 

Depositions and Boctuneutary I>videiice<. 

The requirements of depositions to prove claims in bankruptcy are con- 
sidered in the case cited. In re Port Huron Dock Co.. 14 N. B. R. 243; 
19 Fed. Cas. 1080. 

The practice In taking depositions before a register in bankruptcy 
should be conformed to the practice in examinations Before an examiner 
In chancery. In re Levy et al., 1 Ben. 496; 15 Fed. Cas. 427. 

Testimony on proceedings In bankruptcy cannot be taken under section 
30 of the Act of 1789, or the Act of 1817, or the Act of 1872. In re Dunn 
et al., 9 N. B. R. 487; 8 Fed. Cas. 96. 

In a case in bankruptcy, a commission was issued out of the United 
States district court for the northern district of New York to take the 
testimony of a witness In Illinois. The United States circuit court for 
the latter state held that it could enforce the attendance of the witness 
before the commission and punish him for contempt in case of refusal to 
testify. In re Johnston, 14 N. B. R. 567; 13 Fed. Cas. 881. 

The bankrupt was a member of a banking firm which belonged to a 
syndicate. The court ordered an examination into the accovmts of all 
the members to determine what amounts were due to and from the 
bankrupt's estate. In re Cooke et al., 12 N. B. R. 30; 6 Fed. Cas. 427. 

The court refused to allow the withdrawal of the original papers at- 
tached to a deposition of the bankrupt. In re McNair, 2 N. B. R. 343; 
16 Fed. Oas. 315. 

Judge Nelson, of the district court of Minnesota, expressed the opinion 
that the general scope of the bankrupt law would give plenaiy power 
to the district court to compel the examination of all papers and books 
of the debtor, or In his possession. If pertinent to the Issue. In re Menden- 
hall, 9 N. B. R. 286; 17 Fed. Cas. 8. 



183 The Bankexjptot Law." 

Under the Act of 1867, and the internal revenue laws in force in 1868, 
it was held that an assignment of property which had no internal 
revenue stamp could not be used as evidence of alleged acts of bank- 
ruptcy. In re Dunham et aJ., 2 Ben. 488; 8 Fed. Oas. 33. 

It was held that a certified copy of an examination of the bankrupt 
in supplemental proceedings under the laws of the state was admissible 
in evidence to prove admissions by the bankrupt, under the Act of May 
26, 1790. In re Rooney, 6 N, B. R. 163; 20 Fed. Oas. 1153. 

In support of an objection that the bankrupts had not kept proper 
books of account, a judgment-roll was offered in evidence which showed 
that the bankrupt had made false entries. It was held that the evidence 
was not competent for that purpose, the judgment having been ob- 
tained by default. Metcalf v. Oflicer et al., 2 Fed. Rep. 640. 

To prove an order in a particular proceeding in a bankruptcy case, it 
is not necessary to produce the whole record of that case, but only 
the whole record of that particular proceeding. Payson v. Brooke, 19 
Fed. Cas. IT. 

A copy of any distinct proceeding in bankruptcy may be authenticated 
as a separate record, and is thereupon admissible as presumptive evi- 
dence of the facts stated. Michener v. Payson, 13 N. B. R. 49'; 17 Fed. 
Cas. 259. 

The proceedings in bankruptcy are admissible in evidence to show the 
appointment of the assignee. Babbitt v. Walbrun et al., 1 Dill. 191; 2 
Fed. Oas. 283, 285; affirmed by the supreme court in 16 Wall. 577. 

In an action by the assignee against the assignor of a promissory note, 
the former set up to excuse his failure to bring a suit against the maker 
that such a suit would have been (unavailing. Issue was joined on 
such averment. Held, that the record of an adjudication in bankruptcy 
against the maker of the note before suit could have been brought was 
conclusive evidence in support of the averment. Wills et al. v. Claflin et 
al., 92 U. S. 135. 

Refehences. 

§ 23. Reference 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) gener- 
ally to the referee or specially with only limited authority to act in the 
premises or to consider and report upon specified issues ; or (3) to any 
referee -vithin the territorial jurisdiction of the court, if the conven- 
ience of parties in interest will be served thereby, or for cause, or if the 
banlcrupt does not do business, reside, or have his domicile in the 
disiiict. 

(1).) The judge may, at any time, for the convenience of parties or 
for cause, transfer a case from one referee to another. 



CouETS AND Pkocedure Thereik. 183 

JUBISDICTION OE ACTIONS AT LaW OB IN EQUITY. 

§ 23. Jurisdiction of United States and State Courts.— (a.) 
The United States circuit courts shall have jurisdiction of all con- 
troversies at law and in equity, as distinguished from proceedings in 
bankruptcy, between trustees as such and adverse claimants concern- 
ing the property acquired or claimed by the trustees, in the same man- 
ner and to the same extent only as though bankruptcy proceedings 
hal 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 
courts 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 pro- 
posed defendant. 

(c.) The United States circuit courts shall have concurrent juris- 
diction with the courts of bankruptcy, within their respective terri- 
torial limits, of the offenses enumerated in this Act. 

The circuit court of the United States had jurisdiction under the Act 
of 1841 to set aside a transfer that was void under its provisions, and 
to distribute the property among parties having valid liens and the gen- 
eral creditors. McLean v. Meline et al., 3 McLean, 199; 16 Fed. Cas. 282 
(1843). 

Justice Miller held that after the Amendment of 1874, if not before, an 
assignee in bankruptcy could sue in the circuit courts of the United 
States to collect debts, without reference to the amount claimed. Payson 
V. Coffin, 4 Dill. 386; 19 Fed. Oas. 18. 

It was held under the Act of 186T that the United .States circuit court, 

as a court of equity, had full jurisdiction over a bill brought to set aside 

a transaction charged to be fraudulent under section 35, and to enjoin the 

. parties from prosecuting proceedings in other courts relating to such a 

transaction. Little v. Alexander, 1 Hughes, 171; 15 Fed. Oas. 601. 

Under the Act of 1867, the circuit court, at the suit of the assignee, 
could issue an injunction against the prosecution of an action of trover 
in a state court against the marshal for seizing the property of a third 
person under his warrant in bankruptcy. Hudson v. Schwab et al., 18 
N. B. R. 480; 12 Fed. Cas. 814. 

The assignee of a bankrupt who is payee of a note may sue in the 
United States circuit court to collect the same. Prltchard v. Chandler, 
2 Curt. 488; 19 Fed. Cas. 1347 (1855). 

A question of the validity of a certain lien on bankrupt's property 
which was claimed to have been acquired by preference came before 
the court on a petition and answer. The court refused to decide it in 



184 The Bankeuptcy Law. 

that proceeding and required the petitioner to proceed by a WU in equity 
or a suit at law. In re Belew, 4 Ben. 135; 2 Fed. Cas. 559. 

It was stated by Judge AVoodrufE that the practice in the New York 
circuit under the Act of 1867 was to review by petition, but that the 
circuit court could entertain a plenary suit. Hurst v. Teft, 12 Blatchf. 
217; 12 Fed. Cas. 1044. 

The circuit court will entertain a bill in equity requiring an assignee 
in bankruptcy to account and pay dividends when that authority is not 
conferred by the Act upon the district court. Lucas et al. v. Morris et 
al., 1 Paine, 396; 15 Fed. Cas. 1063 (1825). 

Under section 2 of the Act of 1867, a circuit court in a district other 
than the one in which the decree of bankruptcy was made, has juris- 
diction over a cross-bill filed by an assignee in bankruptcy to assert a 
right to redeem mortgaged property. Barnard et al. v. Hartford P. F. 
R. Co. et al., 2 Fed. Cas. 832. 

A bankrupt in making his schedules conceals, and, after his discharge, 
fraudulently conveys his property. A suit by his assignee to set aside 
such conveyance is not a suit to annul the decree of discharge. Such suit 
Is, therefore, not required to be brought in the district court which 
rendered the decree. The circuit court is the proper tribunal. Nicholas 
V. Murray, 5 Saw. 320; 18 Fed. Cas. 174 (1878). 

The circuit court for the district of Michigan held that It could enter- 
tain a bill by an assignee against several lien holders to ascertain the 
amounts due, and sell all the property free from Incumbrances. Suther- 
land et al. V. Lake ^Superior Ship Canal, Railroad & Iron Co. et al., 9 
N. B. R. 298; 23 Fed. Cas. 459. 

The jurisdiction under the Act of 1867, which the circuit court owed to 
the fact that the complainant was an assignee in bankruptcy, was not 
lost because he had parted with all of his title to the property In con- 
troversy during the pendency of the suit. Barnard et al. v. Hartford P. 
F. R. Co. et al., 2 Fed. Cas. 832. 

Judge Emmons held that the decision of the supreme court In Marshall 
V. Knox, 83 TJ. S. 551, does not deprive the circuit court of its power to 
order all matters pending In a state court to be adjudicated in an original 
suit subsequently to be commenced In such court by an assignee in bank- 
ruptcy. Sutherland et al. v. Lake Superior Ship Canal, Railroad & Iron 
Co. et al., 9 N. B. R. 29S; 23 Fed. Cas. 459. 

The circuit court was held to have no jurisdiction under the Act of 1867 
over a bill in equity by the assignee of a bankrupt firm against the as- 
signee of one of the partners to require him to pay the complainant from 
moneys remaining in his hands after the individual creditors of the 
partner were satisfied. Stevens v. Appleton et al., 4 ClifE. 265; 23 Fed. 
Oas. 6. 

Held, that the circuit court had jurisdiction of a bill In equity by an 
assignee in bankruptcy against the bankrupt and another to set aside a 
conveyance made by the bankrupt to the other defendant and for an 
accounting and a discovery. Versellus v. Versellus et al., 9 Blatchf. 189; 
28 Fed. Cas. 1169. 



CouKTS AND Procedure Thereik. 185 

A suit by an assignee In bankruptcy In the circuit court against the 
banltrupt's wife and a third party for the recovery of property alleged 
to have been unlav^fully transferred was sustained by the court as to its 
jurisdiction on the ground that the matter in dispute exceeded $500, and 
that the suit was between citizens of different states. Spauldlng v. Mc- 
Govern et al., 10 N. B. R. 188; 22 Fed. Oas. 891. 

Where an adjudication was had in Kansas, and a resident of Minnesota 
brought a suit in Indiana without leave of the banlirupt court to fore- 
close a mortgage given by the bankrupt, making the assignees In bank- 
ruptcy parties defendant, and the assignees in bankruptcy brought a 
suit In the circuit court in the district of Minnesota against the plaintiff 
In the foreclosure suit asking to have the mortgage declared void, and for 
an injunction from the further prosecution of the foreclosure suit in 
Indiana, Judge Dillon held that the circuit court for Minnesota had no 
bankruptcy jurisdiction, and could only exercise its ordinary equity 
powers, and accordingly refused to grant the Injunction. Markson v. 
Heaney, 1 Dill. 497; 16 Fed. Gas. 769. 

Neither the Judiciary Act of 1789, nor the Bankrupt Law of 1800, nor 
any other law authorized a circuit court to enjoin proceedings by the 
bankrupt or his counsel In the district court. Sand's Case, 1 U. S. L. J. 
15; 21 Fed. Gas. 333 (1803). 

An assignee in bankruptcy can maintain an action for the recovery of 
assets in a circuit dourt other than that where the bankruptcy proceed- 
ings are pending without regard to citizenship. So held under the Act 
of 1867. Lathrop v. Drake, 91 XJ. S. 516. (Glearly not under the present 
law.) 

Under the Act of 1867 the circuit court had original concurrent juris- 
diction with the district court to determine the validity of conveyances, 
and the rights of the parties to a fund received by an assignee in bank- 
ruptcy from the sale of incumbered property. Giveen v. Smith et al., 
1 Hask. 358; 10 Fed. Gas. 454. 

The supreme court held in the case cited that under the Act of 186T 
an assignee In bankruptcy could maintain an action in a state court to 
recover assets of the bankrupt. Olaflin v. Houseman, 98 U. S. 130. 

A person claiming an Interest in property transferred to the assignee 
could maintain an action for the recovery of the same in the United 
States circuit court without respect to diversity of citizenship. Burbank 
V. Biglowe, 92 U. S. 179. (Otherwise under the present law). 

The United States circuit court has no jurisdiction in a suit brought 
by a purchaser from an assignee in bankruptcy to enjoin the sale of the 
same property under an order of a state court. Sarge'nt v. Helton, 115 
U. S. 348. 

An assignee in bankruptcy having in possession property which had 
been levied upon by virtue of a writ of attachment could maintain a bill 
in equity in the circuit court to remove the attachment as a cloud upon 
the title, and the circuit court could restrain the sale of the property by 
Injunction. Chapman v. Brewer, 114 U. S. 158. 



186 The Bankkttptcy Law. 

Proceedings in bankruptcy were pending against a debtor in the eastern 
district of New York. The bankrupt applied to the circuit court for the 
southern district to restrain proceedings under a judgment and execu- 
tion in a state court. Held, under section 720, K. S., that the circuit 
court had no jurisdiction to grant the injunction. Tifft v. Ironclad Mfg. 
Co. et al., 16 Blatchf. 48;" 23 Fed. Cas. 1217. 

The jurisdiction of the circuit court over a suit in equity brought by 
the assignee of a bankrupt in one state against citizens of another state, 
to recover a debt due the bankrupt's estate, was not conferred by the 
Bankrupt Act of 1867, but by the Judiciary Act of 1789. Glndrat et al. v. 
Dane et al., 4 Cliff. 260; 10 Fed. Cas. 434. 

The circuit court for the district of Missouri affirmed its jurisdiction 
over a suit brought by an assignee In bankruptcy for that district against 
a citizen of Pennsylvania, on the ground thai the jurisdiction was con- 
ferred by the Judiciary Act of 1789. Post v. Rouse, 19 Fed. Oas. 1091. 

The circuit court has jurisdiction of all suits brought by an assignee 
in bankruptcy, or against one. McLean v. LaFayette Bank et al., 3 
McLean, 185; 16 Fed. Cas. 253 (1843). 

The district court, and not the circuit court, has jurisdiction of a bill 
filed by creditors before the appointment of an assignee to restrain the 
holder of a chattel mortgage in possession from disposing of the goods 
covered by the mortgage. Johnson et al. v. Price, 13 N. B. R. 523; 13 
Fed. Cas. 793. 

Under the Act of 1867 an assignee In bankruptcy could bring a suit in 
equity to redeem property from a chattel mortgage in either the circuit 
or district courts of the United States. Foster et al. v. Ames et al., 1 
Low. 313; 9 Fed. Oas. 527. 

The circuit court for Pennsylvania decided under the Act of 1867 that 
it had no jurisdiction of a suit by an assignee in bankruptcy appointed 
in another district to recover the amount of a preference obtained by a 
creditor. Lathrop v. Brake et al., 30 Leg. Int. 141; 14 Fed. Cas. 1178. 
This case was appealed to the supreme court, where the decree of the 
circuit court was reversed on the proposition above stated. Lathrop v. 
Drake et al., 91 U. S. 516. 

Suits between the assignee and the bankrupt, depending on the status 
of the latter, are within the exclusive jurisdiction of the district court; 
but the circuit court had jurisdiction, under the Act of 1867, of an action 
by the assignee against the bankrupt for property in his possession that 
he claims as agent for a third person. Carr v. Gale, 2 Ware, 330; 5 Fed. 
Oas. 118 (1847); affirmed, Carr v. Gale, 3 W. & M. 38; 5 Fed Cas. 123. 

The jurisdiction of the circuit and district courts is concurrent as to 
cases brought by assignees in bankruptcy against parties claiming an 
adverse interest. Hallack et al. v. Trltch, 17 N. B. R. 293; 11 Fed Cas. 
286. 

Circuit and district courts of the United States have full jurisdiction in 
equity to settle and distribute the estate of the bankrupt. Mitchell v. 
Great Works M. & M. Co., 2 Story, 618; 17 Fed. Oas. 496 (1843). 



Courts and Pkocedure Therein. 187 

THe circuit and district courts of the United States have concurrent 
jurisdiction in tlie collection and distribution of assets of a bankrupt. 
So held under the Act of 1841. McLean v. LaFayette Bank et al., 3 
McLean, 185; 16 Fed. Cas. 253 (1843). 

[See notes to §§ Sand 11.] 
A'PPEALS AND KeVISION. 

§ 2J:. Jurisdiction of Appellate Courts.— (a.) The Supreme 
Court of the United States, the circuit courts of appeals of the 'United 
States, and the supreme courts of the Territories, in vacation in cham- 
bers and during their respective terms, as now or as they may be hers- 
alter held, are hereby invested with appellate Jurisdiction of contro- 
versies arising in bankruptcy proceedings from the courts of bank- 
ruptcy from wliich they have appellate jurisdiction in other cases. 
The Supreme Court of the United States shall exercise a like juris- 
diction from courts of bankruptcy not within any organized circuit 
of the United States and from the supreme court of the District of 
Columbia. 

(b.) The several circuit courts of appeal shall have jurisdiction in 
equity, either interlocutory or final, to superintend and revise in mat- 
ter of law the proceedings of the several inferior courts of bankruptcy 
within their jurisdiction. 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; (3) from a judgment granting or denying a discharge; and 
(3) from a judgment allowing or rejecting a debt or claim of five hun- 
dred 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 reject- 
ing 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.) ■\Vbere the amount in controversy exceeds the sum of two thou- 
sand dollars, and the question involved is one which might have been 



188 The Bankeuptcy Law. 

taken on appeal or writ of error from the highest coiirt 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. 

(c.) 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 hereafter enacted. 

Appellate and Bervisory Jurisdiction and Practice. 

It was held to be fataJ to an appeal under the Act of 1867, that no 
notice was given to the assignee in bankruptcy, within ten days after the 
entry of the decree. Wood v. Bailey, 21 Wall. 640. 

The time for appeal in bankruptcy cannot be extended after the period 
for appeal has lapsed. Judson v. Courier Co., 25 Fed. Rep. 705. 

The right of appeal conferred by section 8 of the Act of 1867 cannot 
be enlarged by the court; and where a proper bond is not given, the 
appeal will not be allowed. Benjamin v. Hart, 4 Ben. 454; 3. Fed. Cas. 
189. 

It was held under the Act of 1867 that an appellate court obtains juris- 
diction by the filing and service of the notice of appeal, and not by the 
filing of the transcript; also that the time for filing the transcript may 
be extended by consent beyond the statutory time. Baldwin v. Raplee, 
5 N. B. K. 19; 2 Fed. Cas. 526. 

The supreme court sustained the action of the circuit court in dis- 
missing an appeal to the latter court which was not entered at a term 
then in progress, within ten days after it had been taken, from a decision 
of the district court in bankruptcy. Ex parte Woollen, 104 U. S. 300. 

Under the Act of 1867, the circuit court would review an order adjudg- 
ing the petitioner a bankrupt when all the testimony in the district court . 
on the trial of the issue was preserved by a bill of exceptions; but would 
not reverse the lower court on a question of fact, unless Its decision 
was manifestly erroneous. In re Pickton, 2 Dill. 54S; 19 Fed. Oas. 620. 

A failure to file the appeal and statement within ten days, by a cred- 
itor appealing from a decision rejecting his claim, was held not to be 
jurisdictional under the Act of 1867, notwithstanding the provisions of 
general order number 26. Fellows v. Burnap, 14 Blatchf. 63; 8 Fed. 
Cas. 1131. 



COUETS AND PkOCEDUEE Ti-IEREIN.' 189 

Under the Act of 1867 the petitioning creditor could not appeal to the 
circuit court from an order of the district court vacating an adjudica- 
tion made at the instance of another creditor. In re Hall, 1 Dill. 585; 11 
Fed. Gas. 199. 

The opinion was expressed that an order made by the district court in 
the exercise of summary jurisdiction should not be reviewed by an ap- 
peal under section 8 of the Act of 1867. In re Clark, 9 Blatchf. 372; 5 
Fed. Cas. 811. 

Where the district court had erroneously ordered a set-ofC tO' be allowed, 
held, under the Act of 1867 (section 4986, R. S.), that the circuit court 
had jurisdiction to set aside the order. Wilson v. Nat. Bank, S Fed. Rep. 
391. 

In an oral opinion. Justice Miller said that section 8 of the Act of 
1867 provided for a writ of error and for two classes of appeals. One 
class was appeals in equity cases proper, of which the district was 
given jurisdiction in broad and plain terms by the first and second 
sections of the Act. The other class related to controversies between 
creditors and the assignee in relation to the allowance and rejection of 
claims; the procedure of appeal in this class, when taken by the cred- 
itor, being further regulated by section 24. This provision as to appeal 
is anomalous, since the general legislation by congress distinguishes 
between writs of error and appeals. Hawkins v. First Nat. Bank, 1 
Dill. 453; 11 Fed. Cas. 880. 

An appellate court will not review proceedings of assignees and 
registers unless presented to and passed upon by the district court. Ala. 
& O. R. R. Co. V. Jones, 7 N. B. R. 145; 1 Fed. Cas. 281. 

Only parties to proceedings in bankruptcy can appeal. Ibid. 

An objection that the assignee brought a suit without an order from 
the court of bankruptcy will not be heard for the first time In the ap- 
pellate court. Hallack et al. v. Tritch, 17 N. B. R. 293; 11 Fed. Cas. 286. 

The Act of 1867 (section 4980, R. S.) authorizes an appeal to the circuit 
court from a decision in a proceeding by the assignee in bankruptcy 
to expunge the proof of an alleged debt. Morris et al. v. Brush, 2 Woods, 
354; 17 Fed. Cas. 810. 

It was held to be doubtful under the Act of 1841, whether the granting 
or refusing to grant a motion for a new trial could be adjourned into 
the circuit court; but Judge Story held that if it could be all the evi- 
dence must be included in the record. In re Marsh, 6 Law Rep. 67; 16 
Fed. Cas. 790. 

If the debt claimed exceeds $500, the error lies to the circuit court 
on exceptions taken on a trial in the district court during proceedings 
for Involuntary bankruptcy. So held under section 41 of the Act of 
1867. And the circuit court may compel the district court by mandamus 
to proceed to judgment in such a case. Insurance Co. v. Comstock, 16 
Wall. 259. 

Under the Act of 1S41 it was held that the district judge could not 
sit in the circuit court on questions adjourned from the district to the 



190 The Bankeuptct Law. 

circuit court, and that the questions adjourned could not be talien to the 
supreme court by certificate of division, nor by appeal or writ of error. 
Nelson v. Carlan, 1 How. 265. 

A bill will not be entertained in the circuit court to reverse an order 
allowing a claim which has been twice contested before the district 
court. Bank v. Cooper, 20 Wall. 171. 

A petition by an assignee in banliruptcy asking that the validity of 
certain alleged dealings be determined and that the estate be distributed 
was held to be a case in equity within the meaning of section 8 of the 
Act of 1867. It is not a case within the supervisory power of the cir- 
cuit court, but may be appealed. Stickney v. Wilt, 23- Wall. 150. 

Held, that the review of an interlocutory decree of the district court in 
a suit to set aside a preference should be secured by appeal under 
section 8 of the Act of 1867, and not under section 2. Warren et al. T. 
Tenth Nat. Bank et al., 9 Blatchf. 193; 29 Fed. Cas. 286. 

Under the Act of 1867 no appeal lies to the circuit court from an ad- 
judication of bankruptcy by the district court In re O'Brien, 6 Int • 
Rev. Rec. 182; 18 Fed. Cas. 521 (1873). 

All questions of law which arise in the progress of a petition in bank- 
ruptcy may be reviewed by the circuit court, but only on writ of error 
after final judgment. Oregon Bulletin Printing & Pub. Co., 8 Chi. Leg. 
News, 143; 18 Fed. Cas. 780. 

The action terminates when the debtor is adjudged bankrupt. The 
case in the district court is then at an end, and may be reviewed by the 
circuit court in the manner prescribed by law, and if tried by a jury can 
only be reviewed upon a writ of error. Ibid. 

Technical objections to pleadings cannot be taken for the first time 
in the appellate court. Babbitt v. Burgess, 2 Dill. 169; 2 Fed. Cas. 2S0. 

Held, that under section 4986, R. S., no particular form of proceeding 
was required to take the case to the circuit court for review, and a 
writ of error will be sufficient to give the circuit court jurisdiction. 
Cleveland Ins. Co. v. Globe Ins. Co., 98 TJ. S. 36a 

The circuit court will not reverse the judgment of the district court 
in bankruptcy for irregularities. Its revisory power is limited to what 
has been determined or done. Huntington v. Saunders, 64 Fed. Rep. 476. 

Election or appointment of assignees is subject to the approval of the 
district judge, and it is not in the contemplation of the Bankrupt Act 
that these proceedings shall be reviewed in the circuit court. Woods v. 
Buckewell, 2 Dill. 38; 30 Fed. Cas. 531 (1872). 

The statute and the rules prescribing no time within which application 
for review must be filed, it was held that it must be in a reasonable time. 
Eleven months held unreasonable, unless excuse made for the delay. In 
re Beck, 31 Fed. Rep. 554. 

Held, under the Act of 1841, that the authority of a district judge to 
adjourn a question arising in bankruptcy into the circuit court was not 
barred by the fact that it had given an opinion on such question, when 
no final order or decree had been entered. In re Hyde, 6 Fed. Rep. 869. 



Courts and Pboceduee Thekeik. 191 

The circuit court refused on a petition of review to consider tlie post- 
ponement by the register of the day for the creditors to show cause 
why the banlirupt should not be discharged, on the ground that It was a 
question of practice to be determined by the district court. In re Robin- 
son, 6 Blatchf. 253; 20 Fed. Oas. 978. 

A circuit judge, who had proved his claim and thereafter sold it and 
received the consideration, was held not to be disqualified from deciding 
a petition for the review of an order by the district court on the allow- 
ance of a claim. In re Sime et al., 2 Saw. 320; 22 Fed. Oas. 145. 

The assignee, alleging that the bankrupt withheld certain money, 
asked for an order that he pay it over. The bankrupt swore that the 
money had already been expended before the adjudication, and the 
prayer of the assignee was thereupon denied. On review, the circuit 
court said that it would require a very clear case to justify the review- 
ing court to set aside the decision of the district court on a question of 
fact. In re Mooney et al., 14 Blatchf. 204; 17 Fed. Oas. 659. 

The circuit court, in reviewing proceedings in the district court on a 
writ of error, will accept the findings of fact made by a referee as 
conclusive, and only review conclusions of law embraced in exceptions 
filed in the lower .court. Sicard v. Buffalo, N. Y. & P. R. Oo., 15 Blatchf. 
525; 22 Fed. Oas. 64. 

Under the Act of 1867, It was held in the sixth circuit that upon a 
demurrer to a petition for review, the petition will be taken as true, and 
the appeal determined accordingly. Onrran et al. v. Munger et al., 6 N. 
B. R. 33; 6 Fed. Oas. 982. 

Five months after the discharge of the bankrupt, a creditor whose 
claim amounted to 2 per cent, of the aggregate indebtedness of the 
bankrupt filed a petition for review. In the meantime, the bankrupt had 
engaged in new business. It was held that the delay was unreasonable, 
and th'e petition for review was dismissed. In re Murray et al., 14 
Blatchf. 43; 17 Fed. Oas. 1040. 

A petition for revision should set forth specifically the alleged error 
or errors of the court below that the petitioner relies upon. Llttlefield v. 
Del. & H. Canal Oo., 3 Biss. 371; 15 Fed. Gas. 621. 

The power of the circuit court over proceedings of the district court 
In bankruptcy, under the Act of 1867, was supervisory, and it would 
not hear additional testimony on a petition for review. In re Great 
Western Tel. Oo., 5 Biss. 1059; 10 Fed. Oas. 1053. 

The supervisory jurisdiction conferred by the Act of 1867 on circuit 
courts is restricted to the court for the district where the proceedings in 
bankruptcy are pending. Jobbins v. Montague et al., 6 N. E. E. 509; 13 
Fed. Oas. 648. 

A bill of review can only be sustained on the ground of errors that 
appeared on the record which, in proceedings In bankruptcy, does not 
Include the evidence. Barker v. Barker's Assignee, 2 Woods, 241; 2 Fed. 
Gas. 809. 



193 The Bankeuptoy Law. 

The superintendence given to the circuit court in section 2 of the Act 
of 1867 is revisory in its nature, and there was no intention to give to 
parties authority to apply to that tribunal for original orders in the 
nature of a specific execution of the decrees of a district court. In re 
Bininger et al., 7 Blatchf. 165; 3 Fed. Cas. 410. 

Where it was desired, under the Act of 1867, to secure the opinion of 
the circuit court on a question arising in the course of proceedings in 
bankruptcy, the proper practice was by a petition for a review, and uot 
by an appeal. In re Reed, 2 N. B. R. 9; 20 Fed. Oas. 417. 

It was held, under the Act of 1867, that section 2 conferred on the cir- 
cuit court complete control over proceedings, and any separate branch of 
it, or any particular question arising, and that it might exercise this 
jurisdiction by bill, petition, writ of error, writ of certiorari or other 
appropriate process, though a proceeding by petition was held to be 
preferred. Ruddick v. Billings, Woolw. 330; 20 Fed. Cas. 1306. 

An objection to a composition will not be considered on review in the 
circuit court, unless made in the district court. In re Wilson, 16 Blatchf. 
112; 30 Fed. Cas. 93 (1879). 

The circuit court will not on review interfere with a decree of the dis- 
trict court, in composition proceedings, in the matter of the percentage 
accepted by the creditors. In re Joseph, 24 Fed. Rep. 137. 

The court refused to decide abstract questions certified at the instance 
of a person who was not a party to the proceedings. In re Haskell, 4 
N. B. R. 558; 11. Fed. Cas. 770. 

Where an assignee or a creditor is driven to a bill in equity or an 
action at law, the circuit court has no supervisory jurisdiction, nor has 
it such jurisdiction in the matter of the rejection or allowance of claims 
in bankruptcy. Such cases can only be taken up on writ of error or 
appeal. York's Case, 1 Abb. (U. S.) 508; 4 N. B. R. 479; 30 Fed. Cas. 814 
(1870). 

Construing the Act of 1867 (section 4984, R. S.), Judge Dillon held that 
where a creditor appeals from the decision of the district court disallow- 
ing a part of his claim, he must file a declaration at law, and the issues 
must then be joined, and the case tried, in the same way as a case at 
law originally commenced in the circuit court. Stillwell v. Walker, 17 
N. B. R. 569; 23 Fed. Gas. 93. 

Where an involuntary bankrupt filed a petition in the district court for 
a review of the record, it was decided to be a part of the original pro- 
ceedings, and not a bill to impeach the adjudication for fraud. Also that 
it could not be taken to the circuit court by appeal, but only under the 
supervisory power conferred by section 2 of the Act of 1867. Sandusky 
V. National Bank, 23 Wall. 289. 

The circuit court would not entertain an appeal under the second sec- 
tion of the Act of 1867 from an interlocutory decree made by the district 
court in a suit in equity by an assignee in bankruptcy against a person 
claiming an adverse interest. Clark v. Iselin, 9 Blatchf. 196; 5 Fed. Oas, 
880. 



Courts and Proceduee Theeeik. 193 

It was held that a petition for a review under section 2 of the Act of 
1867 must set forth distinctly the ruling of the district court that Is sought 
to be reviewed. In re Sutherland, 2 Biss. 405; 23 Fed. Oas. 452. 

Held, under the Act of 1867, that any creditor having a lien upon the 
banlirupt's property could Involie the supervisory jurisdiction of the court 
for a review of any decree affecting his rights. In re Taliafero, 3 Hughes, 
422; 23 Fed. Cas. 674. 

Held, under the Act of 1867, section 2, that an adjudication of hanls- 
ruptcy may be reviewed by the circuit court or judge at any place within 
the circuit, either within or without the district where the proceedings in 
bankruptcy are pending. Thornhill et al. v. Banli of Louisiana, 3 N. B. 
R. 435; 23 Fed. Cas. 1135; s. c, 1 Woods, 1; 23 Fed. Gas. 1139. 

In a suit brought by an assignee in banliruptcy to recover property 
alleged to have been unlawfully transferred, 'the referee reported certain 
findings. No exception was made to the report. The defendant sued out 
a writ of error from the circuit court, but the case contained exceptions 
which embraced only proceedings prior to the report of the referee. Held, 
that the referee's findings of fact could not be reviewed. Tyler v. Ange- 
vine, 15 Blatchf. 536; 24 Fed. Oas. 458. 

Held, under the Act of 1867, that the circuit court could review a reso- 
lution by the creditors of a banlirupt accepting a certain percentage of 
their claims, but the supervisory power of the court would only be ex- 
ercised as to assignments of error set forth in the petition. In re South 
Boston Iron Co., 4 Cliff. 343; 22 Fed. Cas. 812. 

Held, under the Act of 1841, that the circuit courts of the United States 
could upon a sufficient showing grant new trials in criminal cases arising 
under the Bankrupt Act. U. S. v. Conner, 3 McLean, 573; 25 Fed. Oas. 
595. 

The circuit court refused, under section 2 of the Act of 1867, to enter- 
tain a petition to review the decision of the district court allowing a 
claim on the ground that the Act contained other provisions for the 
review of such orders. In re Troy Woolen Co., 9 Blatchf. 191; 24 Fed. 
Cas. 244. 

Appeals to the Supreme Coiirt. 

Where the circuit court has affirmed a decree of discharge, an appeal 
will not lie to the supreme court, notwithstanding the debt of the opposing 
creditor exceeds $2,000. Colt v. Robinson, 19 Wall. 274. 

The supreme court refused to review orders determining the priority of 
certain claims to the bankrupt's estate that were first heard before the 
register, and then taken to the district court, and thence by appeal to the 
circuit court. Hall v. Allen, 12 Wall. 452. 

Under the Act of 1867 the supreme court had no jurisdiction by appeal 
or writ of error over a decision of the circuit court in the exercise of its 
supervisory jurisdiction. Sandusky v. National Bank, 23 Wall. 289. 

Under the Act of 1867 the supreme court refused to review the action 
of the circuit court in the exercise of its supervisory jurisdiction over an 
adjudication in bankruptcy. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. 
S. 366. 

13 



194 The Bankettptcy Law.' 

A Judgment by the circuit court on an appeal from an order of the 
district court In bankruptcy rejecting claims offered by an alleged cred- 
itor is not reviewable in the supreme court. Wiswall v. Campbell, 93 U. S. 
347; Leggett v. Allen, 104 id. 741. 

In the cases cited it was decided that an appeal does not lie to the 
supreme court from a decree of the circuit court exercising its super- 
visory Jurisdiction under section 2 of the Act of 1867. Hall v. Allen, 12 
Wall. 452; Morgan v. Thornhill, 11 id. 65; Mead v. Thompson, 15 id. 635; 
Sandusky v. Nat. Bank, 23 id. 289; Connell v. Crane, 94 U. S. 441; Hill v. 
Thompson, id. 322; Minick v. Coleman, 95 id. 266; Milner v. Meek, id. 252. 

The supreme court entertained an appeal from the supreme court of the 
District of Columbia from a proceeding disposing of a claim under section 
1 of the Act of 1867. Smith v. Mason, 14 Wall. 419. 

The supreme court has Jurisdiction of an appeal from a decree of the 
circuit court on a bill in equity filed in the district court by assignees 
against creditors of the bankrupt for the sale of his lands. Morgan v. 
Thornhill, 11 Wall. 65. 

The supreme court held that it has no power of revision over the 
decrees of the district courts as courts of bankruptcy. Ex parte Christy, 
3 How. 292. 

Where the highest court of a state has rendered the decision upon a 
proceeding for perpetual injunction against the collection of a Judgment 
obtained in a court of the state on the ground of the discharge of the 
Judgment debtor in bankruptcy, a federal question is raised which is 
subject to review by the supreme court of the United States. Palmer v. 
Hussey, 119 U. S. 96. 

In the case cited, the supreme court entertained Jurisdiction of an 
appeal from a decision by the highest court of the state on a motion to 
enjoin the collection of a Judgment of a state court on account of the 
discharge of the defendants In bankruptcy, holding that It raised a federal 
question. Ibid. 

Justice Davis held under the Law of 1867 that an order made by the 
circuit court in the exercise of its supervisory Jurisdiction of bankrupt 
proceedings may be reviewed on appeal by the supreme court. In re Fox 
et al., 8* Chi. Leg. News, 313; 9 Fed. Cas. 623. On appeal to the supreme 
court of the United States, this decision was reversed, and the appeal was 
dismissed. Conro v. Orane, 94 U. S. 441. 

Aebiteation. 

§ 36. Arbitration of Controversies.— (a.) The trustee may, 
pursnant to the direction of the court, submit to arbitration any con- 
Iroversy 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 ap- 
pointment the court shall appoint the third arbitrator. 



COUKTS AND PrOCEDUBB THEREIN. 195 

(e.) The i^Titten finding of the arbitrators, or a majority of thenj, 
as to the issues presented, may be filed in court and shall have like 
force and effect as the verdict of a jury. 

It was decided under the Act of 1867, that after the commencement of 
proceedings, a creditor and the bankrupt could not submit to arbitration 
the question what amount was due to the creditor. In re Ford et al., 18 
N. B. K. 426; 9 Fed. Gas. 425. 

COMPHOMISES. 

§ 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. 

An order of the bankrupt court approving a compromise by assignee, 
entered on ex parte application of the assignee, does not bind the other 
party. Section 5074, R. S. DufC v. Hopkins, 39 Fed. Rep. 599. 

An assignee In bankruptcy may compromise a claim that depends upon 
the uncertainties of litigation; but only upon receiving a pro rata share. 
In re Furbish, 2 Hask. 120; 9 Fed. Gas. 1007. 

The district court vacated an order authorizing the surrender of certain 
life insurance policies to a creditor to whom they had been pledged in 
satisfaction of a secured debt upon a showing that the order had been 
procured by misrepresentation of material facts. In re Hoole, 3 Fed. Rep. 
496. 

In the case cited the court considered and construed the general orders 
under the Act of 1867 relating to compromises. Ibid. 

The circuit court decided under the Act of 1867 that the district court 
could not authorize the assignee to compound all doubtful claims with the 
consent and approbation of a committee of creditors. In re Dlbblee, 3 
Ben. 354; 7 Fed. Oas. 657. 

Publication of N"otioes. 

§ 28. Designation of Newspapers. — (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. 



196 The Bankeuptot Law. 

Offenses. 
§ 39. Offenses.— (a.) A person shall be punished, by imprisonment 
lor 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 document 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 know- 
ingly 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) received any naaterial 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 ease in which he is directly or indirectly interested; 
or (8) 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 inspec- 
tion 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 
tlie 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. 

The sufficiency of an indictment under section 44 of the Act of 1867 is 
considered in the case cited. U. S. v. Crane, 3 Oliff. 211; 25 Fed. Gas. 689. 

It was held not to be necessary that an Indictment for perjury by a 
petitioner in bankruptcy should set out the petition at length. U. S. v. 
Deming, 4 McLean, 3; 25 Fed. Oas. 816 (1845). 

Held, that a prosecution under subdivision 6 of section 5132, R. S. 
(Bankrupt Act of 1867), could be based on an information, the crime not 



Courts and Pkooeduee Therein. 197 

Tieing Infamous within the meaning of the fifth amendment to the Con- 
stitution. U. S. V. Block, 4 Saw. 211; 2-i Fed. Cas. 1174. 

An indictment under section 44 of the Act of 1867 was held to be in- 
sufficient where it did not name the court, or the time, or the place where 
the proceedings in bankruptcy were instituted. U. S. v. Latorre, 8 Blatchf. 
134; 26 Fed. Cas. 872. 

It was held that, after the amendment of 1874, a court had jurisdiction 
to try an indictment under section 51S2, R. S. (Act of 1867), before an 
adjudication was had. It was not necessary that an indictment under 
section 5132, R. S., should charge an intent to defraud creditors generally, 
or contain a negative averment to the effect that the defendant was not 
" carrying on business and dealing in the ordinary course of trade." U. S. 
T. Myers, 16 N. B. R. 3S7; 27 Fed. Cas. 49. 

Referring to an indictment under section 44 of the Act of 1867, Judge 
Miller said that all matters necessary to constitute the offense must be 
pleaded. " It is not sufficient to aver that proceedings in bankruptcy were 
duly commenced. It must be pleaded and proven that the petition in 
bankruptcy was presented to the district court by a certain creditor, 
naming him, and allege the amount of such petitioning creditor's claim, 
and the alleged cause of bankruptcy, and the adjudication of bankruptcy, 
it must appear affirmatively that the creditor had a right under the law 
to prosecute proceedings in bankruptcy. The amount of his debt must 
appear, otherwise the court would liave no jurisdiction. * * * The 
description of the goods should be as definite as in a declaration in trover. 
The word 'feloniously' should be omitted." U. S. v. Prescott, 2 Biss. 
325; 27 Fed. Cas. 614. 

The execution of a chattel mortgage by a debtor was held to be a dis- 
position of the property out of the usual course of business under the 
criminal provisions of the Act of 1867. TJ. S. v. Block, 4 Saw. 211; 24 
Fed. Cas. 1174. 

A retail dealer who bought a large quantity of goods ostensibly to re- 
plenish his stock, but sold them at wholesale at a sacrifice, was held to be 
guilty under section 44 of the Act of 1867. U. S. v. Frank, 2 Biss. 263; 25 
Fed. Cas. 1205. 

On the facts of the case, the defendant was held to answer under sec- 
tion 44 of the Act of 1867. U. S. v. Geary, 4 N. B. K. 534; 25 Fed. Cas. 
1272. 

Under sections 1 and 7 of the Act of 18il an intentional omission of a 
part of the bankrupt's property In a verified schedule was held to be 
perjury. U. S. v. Nichols, 4 McLean, 23; 27 Fed. Cas. 151 (1845). 

Persons other than the bankrupt may conspire with the latter so as to 
constitute an offense under the Act of 1867 (sections 5134, 5440, B. S.). 
V. S. V. Bayer et al., 4 Dill. 407; 24 Fed. Gas. 1046. 

Judge Dillon expressed the opinion that under the Act of 1867 (section 
5132, R. S.), a person who procures the bankrupt to commit the acts 
therein made criminal, is subject to indictment. Ibid. 



1S8 The Bankbuptoy Law. 

The bankrupt could be convicted of concealing assets from the assignee 
under the Act of 1867 without proof of a demand by the assignee. V. S. 
V. Smith, 13 N, B. R. 61; 27 Fed. Oas. 1170. 

The defendants were charged with a conspiracy to have a bankrupt 
falsely pretend that the proceeds of a mortgage which he had given had 
been stolen. The fact was held to constitute an offense under the Act of 
1867 (section 5440, B. S.). U. S. v. Swett et al., 2 Hask. 310; 28 Fed. Cas. 8. 

The character of proof in criminal cases under the Act of 1867 Is dis- 
cussed in the case cited. XJ. S. v. Penn, 13 N. B. R. 464; 27 Fed. Oas. 490. 

The repeal of the bankrupt law of 1800 was held by Justice Washington 
to be a bar to a prosecution under that law. U. S. v. Passmore, 4 Dall. 
372; 27 Fed. Oas. 458 (1804). 

Evidence given by a bankrupt on a compulsory examination cannot be 
used against him on a criminal proceeding. U. S. v. Prescott, 2 Dill. 
405; 27 Fed. Oas. 616. 

The court upheld the constitutionality of the clause of section 44 of the 
Act of 1867 which punishes by Imprisonment a fraudulent disposition of 
goods obtained on credit and remaining unpaid for within three months 
preceding the commencement of proceedings in bankruptcy. U. S. v. 
Tusey, 6 N. B. R. 284; 27 Fed. Oas. 631. 

In the case cited, subdivision 9 of section 5132, R. S., was held to be 
unconstitutional, the court holding that " an act committed within a state, 
whether for a good or bad purpose, or whether with an honest or criminal 
intent, cannot be rhade an offense against the United States unless it 
have some relation to the execution of a power of congress, or to some 
matter within the jurisdiction of the United States." U. S. v. Fox, 95 
U. S. 670. 

EULES OF PkOCEDUBE. 

§ 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. 

Judge Hopkins held that the forms prescribed in the general rules 
adopted by the supreme court under the Act of 1867 were not mandatory, 
but might be adapted to the circumstances of each case. In re Strachan, 
3 Biss. 181; 23 Fed. Cas. 212. 

Certain rules and forms under the Act of 1867, considered. In re 
Bellamy, 1 Ben. 390; 3 Fed. Cas. 121; 1 Ben. 426; 3 Fed. Cas. 124; 1 Ben. 
474; 3 Fed. Cas. 126. 

It was held that the Act of 1867 conferred no power on the United States 
district court to make general rules governing proceedings in bankruptcy. 
In re Kennedy et al., 7 N. B. B. 337; 14 Fed. Cas. 808. 



Courts and Pbocedurb Thekbik. 199 

Computation of Time. 

§ 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 legal holiday. 

The last day for a bankrupt to apply for his discharge under the Act of 
1867 fell on Thanksgiving. It was held that he might apply on the fol- 
lowing day. In re I^ang, 2 N. B. R. 480; 14 Fed. Cas. 1097. 

The court refused to set aside the proceedings of a meeting of creditors 
because it was held on Thanksgiving day. In re McGlyn, 2 Low. 127; 16 
Fed. Cas. 122. 

Teansfbe of Cases. 
§ 32. Transfer of Cases. — (a.) In the event petitions are filed 
against the same person, or against different members of a partner- 
ship, 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. 



200 The Bankeuptcy Law. 



CHAPTER V. 

Ophcees, Theie Duties and Compensation, 
eefbbebs — appointment and qualification. 

§ 33. Creation of Two Offices. — (a.) The offices of referee and 
trustee are hereby created. 

§ 34. Appointment, Eemoval, and Districts of Eeferees. — (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 (3.) designate, and 
from time to time change, the limits of the districts of referees, so 
that each county, .where the services of a referee are needed, may con- 
stitute at least one district. 

§ 35. Qualifications of Eeferees. — (a.) Individuals shall not be 
eligible to appointment as referees unless they are respctively (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 consanguin- 
ity 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 
coiirts. 

§ 37. Number of Eeferees. — (a.) Such number of referees shall 
be appointed as may be necessary to assist in expeditiously transacting 
the bankruptcy business pending in the various courts of bankruptcy. 

JUEISDICTION. 

§ 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 juris- 
diction to 



Officees, Theik Duties and Compensation. 201 

(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 ad- 
niinii^tering 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 
bj the clerk of a certificate showing the absence of a judge from the 
judicial district, or the division of the district, or his sickness, 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 pre- 
scribed by rules or orders of the courts of bankruptcy of their re- 
spective districts, except as herein otherwise provided; and 

(5.) Upon the application of the trustee during the examination of 
the bankrupts, or other proceedings, authorize 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 pro- 
ceedings. 

In the absence of objections by the creditors, the register had power 
under tlio Act of 1867 to order a sale of the debts and choses in an action 
belonging to the estate. In re Bank of North Carolina, 19 N. B. R. 164; 2 
Fed. Cas. 668. 

A register in bankruptcy was held under the Law of 1867 to have power 
to direct the assignee to pay court fees to officers of the court out of funds 
in his hands. In re Lane, 3 Ben. 98; 14 Fed. Cas. 1069. 

The register has not the power to decide on the validity of objections 
to questions in the examination of a bankrupt or on the admissibility of 
testimony. In re Patterson, 1 N. B. E. 147; 18 Fed. Cas. 1321 (1867). 

The register can, of his own motion, order the bankrupt to amend his 
schedules to conform to the facts, or when they" appear insufficient or 
irregular. But the order of the register should specify in what respect 
the schedules are defective. In re Orne, 1 N. B. R. 79; 18 Fed. Cas. 823 
(1867). 

Under the Act of 1867 the register had no authority to exclude a ques- 
tion addressed to a witness which was challenged for want of competency, 
materiality or relevancy. In re Rosenfield, 1 N. B. R. 319; 20 Fed. Cas. 
12(». 

It was held under the Act of 1867 that a register had power to adjourn 
a meeting of creditors when, in his opinion, the interest of the creditors, 
as a whole, required it. In re Cheney, 19 N. B. R. 16; 5 Fed. Cas, 541. 



303 The Bankkupxct Law. 

Under the Act of 1867 the register in bankruptcy was required to take 
possession of the bankrupt's property, and keep it until it was turned 
over to the assignee on his appointment. In re Hasbrouck, 1 Ben. 402; 
11 Fed. Cas. 7G7. 

A register has no power to order the bankrupt to execute deeds releasing 
an interest held at the time of filing his petition. In re A. B., 3 N. B. K. 
241; 1 Fed. Cas. 3. 

Judge Blatchford construed rule 3< under the Act of 1867 to mean that 
a register could not order the proof of a debt to be expunged or reduced 
if the debtor objected, but that he must certify the question to the court. 
In re Muldaur et al., 8 Ben. 127; 17 Fed. Oas. 959. 

Under section 26 of the Act of 1867, the register could make an order 
for the examination of the bankrupt or a witness without applying to 
the court, and such examination was conducted substantially as in sup- 
plementary proceedings under the laws of the state. In re Pioneer Paper 
Co., 7 N. B. R. 250; 19 Fed. Cas. 715. 

Questions to be decided by the district court must arise regularly in the 
course of proceedings before the register, and between parties who have 
a legal right to raise them, unless there is a suggestion that the proper 
party is acting in bad faith in refusing to raise such question or other 
similar suggestion. In re Wright, 1 N, B. R. 393; 30 Fed. Cas. 662 (1873). 

Certain creditors appeared before the register and filed objections to 
proceedings in bankruptcy on the ground, among others, that the bank- 
rupt had omitted from his schedule property held by him or others for 
his use. The court held that this was not such an " opposition to the 
discharge " as required the register to refer the matter to the court. In 
re Hill, 1 Ben. 321; 12 Fed. Oas. 144. 

It was held under the circumstances of the case that the register might 
appoint a watchman to take charge of the property of the bankrupt. 
In re Bogert, 2 N. B. B. 585; 3 Fed. Oas. 803. 

Where a trustee had been appointed by the creditors under section 43 
of the Act of 1867, it was held that the register had no power on the mere 
application of creditors to issue a summons for his examination or for the 
production of his books and papers. In re Hicks, 2 Fed. Cas. 851. 
[See notes to § 31 as to authority of referees in the examination of witnesses.] 

Duties. 

g 39. Duties of Referees. — (a.) Eeferees shall 

(1.) Declare dividends and prepare and deliver to trustees dividend 
sheets showing the dividends declared and to whom payable; 

(3.) Examine all schedules of property and lists of creditors filed by 
bajikrupts and cause such as are incomplete or defective to be 
mended; 

(3.) Furnish such information concerning the estates in process of 
administration before them as may be requested by the parties in in- 
terest: 



Officees, Theih Duties and Compensation. 203 

(4.) Give notices to creditors as herein provided;, 

(5.) Make up records embodying the evidence, or the substance 
thereof, as agreed upon by the parties 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 property 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, perfectj 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 transmit the original papers, transmit 
certified copies thereof by mail; 

(9.) Upon application of any party in interest, preserve the evidence 
taken or the substance thereof as agreed upon by the parties before 
them when a stenographer is not in attendance; and 

(10.) Whenever their respective offices are in th© same cities or 
towTis 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 indirectly inter- 
ested; 

(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. 

Judge Blatchford held that proceedings before a register are under his 
control, and should he conducted without reasonable delay, but that no 
inflexible rule can be prescribed as to postponements. In re Hyman, 3 
Ben. 28; 12 Fed. Gas. 1134. 

Where a part of the bankrupt's property is covered by a lien for its 
full value, the assignee in bankruptcy will not be required to determine 
the priority or validity of subsequent liens. Mattocks v. Perrington, 2 
Hask. 331; 16 Fed. Gas. 1147. 

A general reference to the register was held to be sufficient to authorize 
him to take testimony regarding the claim of the petitioning creditors for 
costs and disbursements. In re Robinson, 43 How. Pr. 25; 20 Fed. Gas. 
980. 



304 The Banketjptot Law. 

Compensation. 

§ 40. Compensation of Referees. — (a.) Referees shall receive, as 
full compensation for their services, payable after they are rendered, a 
fee of ten doUars 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 from estates which have been administered before them 
one per centum commissions on sums to be paid as dividends and 
commissions, or one-half of one per centum on the amount to be paid 
to creditors upon the confirmation of a composition. 

(b.) Whenever a case is transferred frm one referee to another the 
judge shall determine the proportion in which the fee and commis- 
sions therefor shall be divided between the referees. 

(e.) In the event of the reference of a case being revoked before it is 
concluded, and when the case js specially referred, the judge shall 
determine what part of the fee and commissions shall be paid to the 
referee. 

In the case cited, are discussed allowances to registers, services for 
which charges are allowable, and how questions concerning such charges 
can be raised. In re Sherwood, 1 N. B. R. 344; 21 Fed. Gas. 1286 (1868). 

After the deposit for costs had been exhausted, and no assets had come 
Into the hands of the assignee, the court ordered the bankruppt, in a 
proceeding of involuntary bankruptcy, to pay the register's and clerk's 
costs. In re McBride, 15 Fed. Oas. 1218. 

It was held under the Act of 1867 that the court, and not the clerk, 
should fix the fees of the register, and that the register could be com- 
pelled to pay any excess of fees received by him into the court. In re 
Portington et al., 8 Ben. 173; 19 Fed. Oas. 1082. 

The fees taxed by a register for his own services are considered by 
Judge Blatchford in the case cited. In re Robinson, 2 Ben. 145; 20 Fed. 
Cas. 974. 

Contempts. 
§ 41. Contempts Before Keferees. — (a.) A person shall not, in 
proceedings before a referee, (1) disobey or resist any lawful order, 
process, or writ; (3) 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 exam- 
ined 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 



Opficehs, Theih Duties and Compensation. 205 

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 con- 
tempt committed before the court o£ 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. 

Where a bankrupt refuses to answer a proper question upon examina- 
tion before the register, the court will compel him to answer. In re Holt, 
3 N. B. R. 241; 12 Fed. Cas. 428. 

A custodian of the estate of the bankrupt ad interim had been appointed, 
and the register had ordered the bankrupt to pay over to him certain 
moneys. Held, that disobedience of such an order was a contempt. In re 
Speyer et al., 6 N. B. B. 255; 22 Fed. Oas. 928. 

It was held under the Act of 1867 that a malicious attack upon the 
character of a register In bankruptcy in a paper filed in court was a 
contempt of court. In re Breck et al., 13 N. B. E. 216; 4 Fed. Cas. 44. 

[See notes to § 81 ] 

Eeooeds. 

§ 42. Records of Referees. — (a.) The records of all proceedings 
in each case before 0, 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 sepa- 
rate book or books, and Shall, together with the papers on file, con- 
stitute the records 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. 

Vacancies. 

§43. Referee's Absence or Disability. — (a.) Whenever the office 
of a referee is vacant, or its occupant is absent or disqualified to act. 



206 The Bankeuptcy Law. 

the judge may act, or may appoint another -referee, or another referee 
holding an appointment under the same court may, by order of th# 
judge, temporarily fill the vacancy. 

Trustees — Appointment, Qualifications, Eemoval, Etc. 

§ 44. Appointment of Trustees. — (a.) The creditors of a bank- 
rupt 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 dis- 
charge revoked, or if there is a vacancy in the of&ce of trustee, ap- 
point 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. ftualiflcations of Trustees. — (a.) Trustees may be (1) indi- 
viduals who are respectively competent to perform the duties of that 
office, and reside or have an office in the judicial district within which 
they are appointed, or (3) corporations authorized 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 or Removal of Trustees. — (a.) The death or re- 
moval 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 proceeded with or defended by his joint trustee or 
successor in the same manner as though the same had been com- 
menced or was being defended by such joint trustee alone or by such 
successor. 

When only one creditor proves his debt or attends the meeting, he Is 
entitled to name the assignee. Anon., 1 N. B. R. 216; 1 Fed. Cas. 1013. 

When only one creditor appears at a meeting of craditors to elect an 
assignee, he has the right to malie the election. In re Haynes, 2 N. B. E. 
227; 11 Fed. Oas. 914. 

It is optional with creditors who have proved their claims whether they 
will or will not wait for others to prove before proceeding to elect an 
assignee. In re Lake Superior Ship Onal R. I. Co., 7 N. B. R. 376; 14 
Fed. Cas. 951. 

When a creditor is added by an amendment to the bankrupt's schedule. 
It is not necessary to hold another meeting of the creditors to elect an 
assignee, if one has already been chosen. In re Carson, 5 Ben. 277; 5 
Fed. Oas. 172. 

The result of an election of assignee cannot be changed by the votes 
of those who filed their proof of claims after the election. In re Lake 
Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951. 



OfficebSj Theie Duties and Compensation. 207 

Creditors who hare received payment under the terms of a composition 
which is set aside cannot vote at an election of assignee to proceed with 
the administration of the estate. Ex parte Hamlin, 2 Low. 571; 1 Fed. 
Cas. 367. 

When a separate adjudication is made against a bankrupt who is, or 
has been a member of a firm, his individual creditors have a right to vote 
for assignee. In re Falliner, 16 N. B. R. 503; 8 Fed. Cas. 973. 

A power of attorney given to a firm to vote for the election of an 
assignee can only be exercised by all the members of the firm. In re 
Foye, 2 Low. 399; 9 Fed. Cas. 649. 

The register has no power without special order of the court to Inquire 
Into the right of creditors to vote In the election of an assignee. The fact 
that persons fraudulently and by collusion claiming to be creditors voted 
in such election may be presented to the court as a reason why such 
election should not be approved. In re Noble, 8 Ben. 332; 18 Fed. Cas. 
282 (1869). 

One member of a firm can cast the vote of a firm at a meeting of cred- 
itors for the full amount of the debt; but as to joint creditors who are 
not partners neither can act or vote without the authority of the other. 
In re Purvis, 1 N. B. B. 163; 20 Fed. Cas. 74. 

The vote of a creditor for assignee which was procured by corruption 
should be excluded; but it does not invalidate the election unless it changed 
the result. In re Pfromm et al., 8 N.. B. R. 357; 19 Fed. Cas. 415. 

Under the Act of 1867 it required the votes of a majority of all who 
had proved claims to elect an assignee, and a majority of votes cast was 
not sufficient. In re Purvis, 1 N. B. R. 163; 20 Fed. Cas. 74. 

Neither an agent nor an attorney-at-law of a creditor can vote for 
assignee unless duly constituted an attorney in fact. Ibia. 

A creditor cannot vote at a meeting when his claim Is exceeded by a 
set off for a debt due to the bankrupt. In re Purcell, 18 N. B. B. 447; 20 
Fed. Cas. 61. 

The question submitted being whether a creditor having a mortgage 
upon the homestead of the bankrupt in Kansas to secure his demand, has 
a right to prove his demand, and vote on the choice of an assignee in 
bankruptcy, it was answered in the affirmative. In re Stlllwell, 7 N. B. R. 
226; 23 Fed. Cas. 89. 

One member of a firm can execute a power of attorney to a third per- 
son authorizing him to cast the vote of the firm for the election of the 
assignee. In re Barrett, 2 Hughes, 444; 2 Fed. Cas. 909. 

Judge Lowell condemned the practice of procunng creditors with small 
privileged claims for wages to prove their debts at the first meeting, so 
as to vote for assignee, and intimated that he might refuse to confirm 
such an election. At the same time he denied a motion to reject the 
proofs of such claims. In re Houghton, 2 Low. 243; 12 Fed. Cas. 588. 

Property was sold at public auction after the adjudication of the mort- 
gagor on a mortgage for $15,000. The mortgagee purchased it for $142.50 
and then proved up the deficiency against the estate of the mortgagor in 



308 The Bankeuptcy Law. 

bankruptcy. His vote on the claim so proved controlled the election of 
the assignee. The court held that such a method of ascertaining the value 
of the security was not contemplated by the Act of 1867, and that the 
election of the assignee was irregular. In re Hunt, 17 N. B. B. 205; 12 
Fed. Cas. 902. 

" It is only the creditors who have proved their debts that can partici- 
pate in choosing an assignee. The proving of debts must, therefore, pre- 
cede the choosing of an assignee; but it may often happen that a bankrupt 
owes a hundred or more debts and that it may be impossible, owing 
to the complicated nature of some, to go through the proofs of one-tenth 
of them on the day designated in the warrant of notice. If, therefore, 
in such case a meeting cannot adjourn to the next or another day to take 
proof of other debts, it will follow that a power which the statute con- 
templates shall be exercised by a greater part in number and value of 
the whole. Is actually exercised by one-half of the creditors representing 
but a small portion of the debts. The plainest principles of justice would 
require such an adjournment from day to day as would furnish proper 
opportunity to all creditors present to prove their debts, and thus qualify 
themselves to join in selecting an assignee." In re Phelp et al., 1 N. B. R. 
525; 19 Fed. Cas. 436. 

An attorney for creditors is eligible to election as assignee. In re Law- 
sou, 2 N. B. R. 113; 15 Fed. Oas. 88; In re Barrett, 2 Hughes, 144; 2 Fed. 
Cas. 909. 

It was held to be a sufficient objection to an appointment of an assignee 
that he was a director of a bank to whom the bankrupt had given a 
preference. In re Powell, 2 N. B. R. 45; 19 Fed. Cas. 1211. 

When an assignee has been chosen in the interest of the bankrupt, 
or through his influence, the court will refuse to confirm the election. In 
re Bliss, 1 Ben. 407; 3 Fed. Oas. 705. 

Judge Lovell expressed the opinion that a nonresident of the district, 
or a person who has an interest antagonistic to that of the general cred- 
itors, or the attorney of the bankrupt, should not be chosen assignee; but 
that the objections do not extend to a general creditor or his attorney, or 
to a former attorney of the bankrupt. In re Clairmont, 1 Low. 230; 5 Fed. 
Cas. 810. 

Judge Blatchford refused to to confirm the election of an assignee who 
had made it a regular business to seek out creditors and solicit them to 
prove their debts and vote for him. In re Doe, 2 N. B. B. 308; 7 Fed. 
Cas. 802. 

Under the Act of 1867 the court refused to confirm the election of an 
assignee who resided out of the district. In re Havens IN B R 485" 
11 Fed. Cas. 849. 

The court refused to sanction the election of an assignee when there 
was only one creditor present at the meeting, and he voted for a person 
who was a stranger to himself and who had solicited his vote. In re A. 
B., 3 Ben. 66; 1 Fed. Cas. 2. 



Officees, Theik Duties and Compensation. 209 

An assrgnee chosen at a meeting of creditors had promised to pay the 
claims of two creditors In full to procure their powers of attorney to 
vote at such meeting. The court refused to confirm the election. In re 
Haas et al., 8 N. B. R. 189; 11 Fed. Cas. 138. 

In the absence of evidence of bad character or incompetency, the court 
will not interfere with the election of an assignee chosen by a majority 
of the creditors in number and value. In re Grant, 2 N. B. R. 106; 10 
Fed. Cas. 973. 

A receiver had been appointed under a state law for an Insolvent bank- 
Subsequently, proceedings in bankruptcy were commenced, and the cred- 
itors elected the receiver trustee. They also elected a committee of cred- 
itors, one of whom was the president of a bank which claimed to be a 
preferred creditor. The court refused to confirm the election of the 
trustee or the committee, and appointed an assignee. In re Stuyvesant 
Bank, 5 Ben. 566; 23 Fed. Cas. 339. 

It is the duty of the court of bankruptcy to see that the rights of cred- 
itors are protected in the choice of an assignee; and the court set aside 
the election of an assignee who had been a bookkeeper of the bankrupt, 
and when the bankrupt and his attorney seemed to control the action of 
the creditors. In re Wetmore et al., 16 N. B. R. 514; 29 Fed. Cas. 842. 

Decision by register: " It has been uniformly held by the courts that 
they will not affirm the election or appointment of an assignee who is 
a relative of the bankrupt" In re Zlnn, 4 N. B. R. 370; 40 How. Pr. 
461; 30 Fed. Cas. 935. 

The mere fact of the relationship in the ninth degree or less of the pro- 
posed trustee, on the pai-t of the bankrupt or of the largest creditor, 
is no disqualification. In re Zinn, 4 Ben. 500; 4 N. B. R. 436; 30 Fed. Cas. 
934 (1871). 

Under the Act of 1867 the court had authority to approve or disapprove 
of the election of an assignee by the creditors.; but it was held that this 
was a legal discretion, and where the choice was made by a large ma- 
jority both in number and amount, the court could not refuse to confirm 
upon mere rumors of commercial dishonesty. In re Funkenstein et al., 
1 Pac. Law Rep. 11; 9 Fed. Cas. 1004. 

Several members of the family of one of the members of a bankrupt 
firm had proved claims against the estate. His son was elected assignee. 
The court refused to confirm the election. In re Bogart et al., 3 N. B. R. 
651; 3 Fed. Cas. 803. 

When there are no assets and no creditors have proved debts, an as- 
signee should nevertheless be appointed. Anon., 1 N. B. R. 122; 1 Fed. 
Cas. 1012. 

Judge Longyear, of the district court of Michigan, said that the Bank- 
rupt Act of 1807 prescribed no particular manner of voting for assignee, 
and added: " It may be assumed, therefore, that any mode or manner 
of voting by which the choice of each creditor entitled to vote is clearly 
expressed is sufficient. It may no doubt be taken by ballot, or rirn voce. 
It may be taken by calling the name of each creditor, or by calling upon 
U 



310 The Bankkuptcy Law. 

the person or persons representing creditors by power of attorney to 
name tlae clioice of the creditor or creditors represented by him." In re 
Lalie Superior Ship Oanal E. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951. 

Judge Blatchford decided, under the Act of 18OT, that when no creditor 
had proved his debt at the time fixed for the first meeting of creditors, 
the judge or register could appoint an assignee. In re Cogswell, 1 Ben. 
388; Fed. Oas. 11. 

The bankrupt himself could be heard in objection to the appointment of 
an assignee under the Act of 1867. In re McGlyn, 2 Low. 127; 16 Fed. 
Cas. 122. 

At the first meeting of creditors, the selection of a certain assignee 
was expressly opposed. The meeting was adjourned to a subsequent day, 
when, the opposing creditors not being present, the assignee first pro- 
posed was selected, and the register reported that he was chosen with- 
out opposition. The facts being presented to the court, it was held that 
the register erred in so reporting, and that he should have reported the 
facts, the adjourned meeting being but a continuance of the first meeting. 
In re Norton, 18 Fed. Cas. 416 (1873). 

The court held that the appointment of an assignee by a register should 
be annulled, though no formal objection was made at the time by any 
of the creditors, but where there was shown to be an opposing interest. 
In re Pearson, 2 N. B. R. 477; 19 Fed. Cas. 65. 

Held, under the Act of 1867, that a register cannot directly or indi- 
rectly interfere with the choice of the assignee by creditors. In re Smith, 
2 Ben. 113; 22 Fed. Cas. 381. 

Under the Act of 1800, Judge Oranch instructed the jury that where an 
assignee in bankruptcy was plaintiff, he must prove himself to be duly 
appointed by producing the original commission and the proceedings 
thereon, or a certified copy thereof and the original deed of assignment. 
Mclver v. Moore, 1 Cranch C. C. 90; 16 Fed. Cas. 153 (1802). 

Irregularity in the proof of a claim which did not afCec* the result of 
the election of assignee is not sufiicient ground for setting che election 
aside. In re Jackson, 7 Biss. 280; 13 Fed. Cas. 191. 

Creditors who have not been allowed to prove their claims so as to 
vote for assignee without fault of their own, may apply to ihe court, and 
on a proper showing the court will set aside the result and order a new 
election. In re Lake Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 
Fed. Cas. 951. 

Under the Act of 1867, an order to set aside the appointment of an 
assignee could only be made by the district judge, and upon notice. In 
re Stokes, 1 N. B. R. 489; 23 Fed. Cas. 134. 

, The court refused to sanction the election of a trustee, and a committee 
to supervise his action, under section 43 of the Act of 1867, which con- 
sisted of only two members, one of whom was the trustee himself. In re 
Stillwell, 2 N. B. R. 526; 23 Fed. Cas. 88. 

Under the Act of 1867, even after an assignee has been duly appointed, 
a creditor may arrange by trust deed to have the assignee removed, and 



Officers, Their Duties and Compensation. 311 

In his stead to have' trustees appointed to administer the bankrupt's 
estate. In re Jones, 2 N. B. R. 59; 13 Fed. Gas. 933. 

The removal of an assignee by the district court will not be reviewed 
by the circuit court. In re Adler, 2 Woods, 571; 1 Fed. Oas. 176. 

Where an application was made for the removal of an assignee tlie 
court ordered the register to employ counsel to represent the estate on 
the order to show cause. In re Price, 4 N. B. R. 406; 19 Fed. Oas. 1313. 

The assignee was clerk of the bankrupt's attorney and was charged 
by creditors with mismanagement of the estate. Under the circumstances 
of the case, the court removed him, and appointed a new assignee; but 
it appearing that the former assignee had acted in good faith, the costs 
of the proceedings were ordered to be paid out of the estate. In re 
Malory, 4 N. B. R. 153; 16 Fed. Gas. 546. 

Where a new warrant is issued containing the names of creditors that 
have been added by an amended petition after the election of an assignee, 
the assignee should not be removed without an application, of which all 
the creditors should have notice. In re Perry, 1 N. B. R. 220; 19 Fed. Oas. 
263. 

An assignee who had permitted the bankrupt's real estate to be sold for 
taxes was removed, notwithstanding he had acted on the advice of coun- 
sel, and was ordered to pay from his own funds the costs of the petition 
for his removal. In re Morse, 7 N. B. R. 56; 17 Fed. Oas. 848. • 

The court refused to remove an assignee for involving the estate in 
needless litigation when it appeared that it was done on the advice of 
counsel. In re Blodget et al., 5 N. B. B. 472; 3 Fed. Gas. 716. 

Where a resolution for the removal of an assignee was passed by the 
votes of parties whose claims the assignee was seeking to impeach, the 
court refused to remove him. In re Dewey, 1 Low. 490; 7 Fed. Oas. 572. 

Duties. 

§ 47. Duties of Trustees. — (a.) Trustees shall respectively 

(1.) Account for and pay over to the estates under their control 
all interest received by them upon property of such estates; 

(3.) 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; 

(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; 



21S The Bankeuptot Law. 

(6.) Keep regular accounts showing all amounts received and from 
what tsources and all amounts expended and on what accounts; 

(7.) Lay before the final meeting of the creditors detailed state- 
ments of the administration of the estates; 

(8.) Make final reports and file final accounts with the courts fif- 
teen days before the days fixed for the final meetings of the creditors; 

(9.) Pay dividends within ten days after they are declared by the 
referees; 

(10.) Eeport 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 
concurrence of at least two of them shall be necessary to the validity 
of their every act concerning the administration of the estate. 

An assignee in bankruptcy can recover money loaned by the bankrupt 
after the petition was filed and before adjudication. Crompton et al. v. 
Conkling, 9 Ben. 225; 6 Fed. Oas. 84& 

An assignee in bankruptcy has the right to bring suit to protect the 
estate, notwithstanding the pendency of a creditor's suit brought In 
aid of the estate, in which suit a receiver has been appointed. Shainwald 
V. Davids, 69 Fed. Rep. 687. 

An assignee in bankruptcy has a right to file a bill in chancery against 
all incumbrancers of the bankrupt's property, to test their validity, priority 
and amount. McLean v. LaFayette Bank et al., 3 McLean, 415, 587; 16 
Fed. Gas. 258, 264 (1844-6). 

The assignee, and not the bankrupt, is the proper party to bring a writ 
of error to a judgment against the latter when he has received his dis- 
charge pending the action. Knox v. Exchange Bank, 12 Wall. 379. 

Under section 5198, E. S., a person who has paid usurious interest to a 
national bank, or his " legal representative," may recover back twice the 
amount of the interest so paid. Held, that an assignee in bankruptcy 
could maintain an action for that pui-pose. Markson v. First National 
Bank, 9 Chi. Leg. News, 108; 16 Fed. Cas. 768. 

Where property was held by the defendant under claims in different 
rights, it was held that the proper remedy for an assignee in bankruptcy 
seeking to recover the same was a suit in the form of a creditor's bill, and 
that it was no objection to such proceeding that there were other cred- 



Ophcees, Theie Duties and Compensation. 213 

iters of the defendant. Stotesbury et al. v. Oadwallader et al., 31 Leg, 
Int. 22»; 23 Fed. Gas. 170. 

The marshal seized goods belonging to the bankrupt which were sub- 
sequently delivered to an alleged purchaser upon his giving a forthcoming 
bond. The alleged sale was set aside as fraudulent, and this decision was 
confirmed in the supreme court. The purchaser was insolvent. The 
court of bankruptcy decided that the assignee might proceed on one of 
the appeal bonds, or upon the forthcoming bond, without first enforcing 
the same against the estate of the purchaser, and that it was not neces- 
sary to resort to a plenary action. Storrs et al. v. Engle et al., 3 Hughes, 
414; 23 Fed. Gas. 165. 

The assignee sued a debtor on the common counts. The defendant set 
up that before the commencement of proceedings in bankruptcy, he had 
brought his suit against the bankrupts, and that the bankrupts had 
claimed by way of set-off the same money sued for by the assignee, and 
for the same cause of action, and that that suit was still pending. A 
demurrer to the plea was sustained. Miller v. Del., L. & W, K. Go., 17 
Fed. Gas. 314. 

After the filing of the petition, a note was given to the bankrupt for 
the payment of a book account, and deposited in bank for collection and 
paid at maturity. This was held, in an action brought by the assignee 
for the amount of the note, to discharge the maker. Galvin v. Boyd, 25 
Fitz. L. J. 14; 9 Fed. Gas. 1140. 

The court of bankruptcy made an assessment upon all the premium 
notes belonging to the bankrupt, a mutual insurance company. This was 
held not to be such an adjudication as to prevent the maker pleading a 
defense to the note when an action was brought upon it by the assignee. 
Lamb v. Lamb, 6 Biss. 420; 14 Fed. Gas. 1016. 

The interests of creditors will be considered, notwithstanding the ex- 
pense and delay of litigation to recover assets of the bankrupt. In re 
Rowe, 18 N. B. R. 429; 20 Fed. Gas. 1280. 

The bankruptcy of an insurance company cannot be set up as a de- 
fense to an action on a note given for a premium, brought by the assignee 
in bankruptcy. Garey v. Nagle, 2 Biss. 244; 5 Fed. Gas. 60. 

In this case the court decided under the Act of 1800 that on the death 
of an assignee in bankruptcy the right of action for a debt due the bank- 
rupt vested in his executor. Richards v. Maryland I. Co., 8 Oranch, 84. 

The omission in a bill in equity by an assignee to allege that there had 
been an adjudication is not fatal when it sets up the filing of the petition, 
the appointment of the assignee and the assignment to him. Lakin v. 
First Nat. Bank, 13 Blatchf. 83; 14 Fed. Oas. 959. 

An adjudication in bankruptcy is an essential prerequisite and condi- 
tion precedent to the power of a register to make assignment of a bank- 
rupt's estate. The adjudication must, therefore, be alleged in a suit by 
an assignee under such assignment brought to recover the property of 
the alleged bankrupt. Wright v. Johnson, 8 Blatchf. 150; 4 N. B. R. 626; 
30 Fed. Gas. 678 (1871). 



314 The Banketjptcy Law. 

Judge Hopkins, of the district court of Wisconsin, in a very elaborate 
opinion, lield that an assignee in bankruptcy can sue and collect the 
assets of the bankrupt in any other court than that in which the bank- 
rupt proceedings are pending; that this right was conferred by the Act 
of 1867 in the authority given the assignee " to collect the assets." Good- 
all V. Tuttle, 3 Biss. 219; 10 Fed. Gas. 579. 

Under the Act of 1867, an assignee could be required to furnish se- 
curity for costs when he was prosecuting expensive litigation, and was 
substantially without funds belonging to the estate. Forman v. Camp- 
bell, 9 Ben. 472; 9 Fed. Oas. 450. 

The district court for the district of Rhode Island decided that under 
the Act of 1867 an assignee In bankruptcy could proceed against a party 
claiming property adversely only by an action at law or a suit in equity; 
but did not decide whether the adverse claimant might not proceed 
against the assignee by a summary petition. Ferguson et ux. v. Peck- 
ham et al., 6 N. B. R. 569'; 8 Fed. Cas. 1152. 

A bankrupt, who was then living in North Carolina, when proceedings 
were commenced In 1868, owned certain railroad bonds which he had 
deposited as collateral for debts that were subsequently paid; and he 
omitted these from his schedule. Soon afterward, he removed to New 
Jersey, and died there in 1877. Thereafter, the assignee in bankruptcy 
brought suit to recover the bonds. The court decided that the suit could 
be maintained, and that the delay did not afford evidence of laches. 
FuUings V. Fulllngs, 3 N. J. L. J. 270; 9 Fed. Cas. 991. 

An assignee represents the creditors of the bankrupt, as well as the 
bankrupt himself, and it follows that he can take advantage of any 
remedy that would be open to an attaching creditor. So held in a case 
where the levy of an execution on the personal property of the bankrupt 
was declared void, because it was not made in conformity with the laws 
of the state. Beers et al. v. Place et al., 4 N. B. R. 459; 3 Fed. Cas. 71. 

To maintain a suit in equity against a person in possession of property 
and claiming to own it for an injunction restraining him from Inter- 
meddling with It, an assignee in bankruptcy must show clearly the 
existence of some peril which a court could not redress. Beecher v. 
BInlnger et al., 7 Blatchf. 170; 3 Fed. Cas. 49. 

It Is not necessary for an assignee to sue a bankrupt for money that he 
appears to have In his hands; the court may make a summary order 
for him to turn It over. In re How, 18 N. B. R. 565; 12 Fed. Cas. 621. 

To establish his right to bring a suit for assets, It is only necessary 
for the assignee to prove the adjudication and his appointment. Carr 
V. Gale, 2 Ware, 330; 5 Fed. Cas. 118 (1847); affirmed, Carr v. Gale, 3 
W. & M. 38; 5 Fed. Cas. 123. 

An assignee may continue the defense of a suit necessary to establish the 
right of the bankrupt to an interest In real estate, if the creditors do 
not object, and the estate will be liable for the expense. In re Babcock, 
1 Woodb. & M. 26; 2 Fed. Cas. 292 (1845). 



Officers, Their Duties and Compensation. 315 

In a case where the bankrupt had secured goods by fraud, and they 
had passed into the possession of his assignee in bankruptcy, it was held 
that they might be reclaimed from the latter as they could have been 
reclaimed from the bankrupt himself. Donaldson v. Farwell, 93 XJ. S. 
631. 

In the adjustment of a usurious loan, an assignee in bankruptcy cannot 
surrender the benefit of the equitable principle which requires that pay- 
ments of excessive interest shall be applied in liquidation of the principal. 
The court considered without deciding whether he is bound to set up 
usury in defense against a claim otherwise valid and meritorious. In re 
Hoole, 3 Fed. Rep. 496. 

A debtor of a bankrupt whose debt had accrued before the commence- 
ment of the proceedings, but who had no notice or knowledge of his bank- 
ruptcy, paid the debt to the bankrupt in the usual course of business. 
Held, that the assignee could maintain an action against him for the 
debt, notwithstanding such payment. Howard et al. v. Orompton, 14 
Blatchf. 328; 12 Fed. Cas. 639. 

If the assignee in bankruptcy is satisfied that property taken by him 
does not belong to the bankrupt, it should be returned without delay to 
the owner; otherwise the claimant must seek redress by appropriate 
action in the courts of the state, and if successful the costs of the as- 
signee may or may not be allowed him in the discretion of the bankrupt 
court. This will depend on whether the assignee was right in taking 
and holding the property in dispute. In re Noakes, Bankr. Ct. Kep. 162; 
18 Fed. Cas. 281. 

Where the holder of a bill of exchange proved his debt in bankruptcy 
against the acceptor and also brought a suit at law against the drawers 
and attached their property, it was held that he was not obliged to pursue 
the suit at law at his own expense, and if he did not, the assignee should 
conduct It for the benefit of the bankrupt's estate and at its expense. In 
re Babcock, 3 Story, 393; 2 Fed. Cas. 289 (1844). 

An assignee in bankruptcy is not obliged to sell mortgaged property 
of the bankrupt unless its value exceeds the mortgage lien. McHenry v. 
La Societe Francaise, 95 U. S. 58. 

An assignee In bankruptcy is not bound to take possession of property 
which would be of no benefit to the estate. He must exercise his elec- 
tion within a reasonable time. If he elect not to take possession, the 
property remains in the bankrupt and his possession is good against all 
the world but the assignee. Smith v. Gordon et al., 2 N. X. Leg. Obs. 325; 
22 Fed. Oas. 554 (1843). 

When the personal property of the bankrupt is mortgaged beyond its 
value, the assignee in bankruptcy has no other duty than to set apart 
exempt property to the bankrupt. In re Lambert, 2 N. B. R. 426; 14 Fed. 
Cas. 1045. 

An assignee in bankruptcy represents the creditors as well as the 
bankrupt, and in the former capacity no defense could be set up against 
him which could not be set up if the suit was solely in the interest of 



216 • The Bankeuptct Law. 

creditors, so far as concerns the validity of stock upon which he was 
seeliing to collect unpaid subscriptions. Upton v. Jaclison, 1 Flipp. 413; 
28 Fed. Cas. 8i4. 

Mortgagees of the bankrupt asked that the assignee be ordered to 
satisfy their claim out of the funds in his hands after a sale of the mort- 
gaged goods. The assignee replied that the mortgage was void as to 
creditors, and this was established in proof. It was then claimed that 
the assignee could not set up this defense, as he succeeded only to the 
rights which the bankrupt had, and that as between the parties the mort- 
gage was valid. The court held that the assignee represented the whole 
body of creditors, and that it was his right and duty to contest the 
validity of the mortgage. In re Metzger, 2 N. B. R. 355; 17 Fed. Cas. 231. 

The stockholders of a bankrupt corporation had paid 20 per cent, on 
their subscriptions, but were liable for the remaining 80 per cent, in the 
event of the cash fund becoming impaired by losses. The entire funds 
of the company having been exhausted, it was held that it was not com- 
petent for the assignee on his own motion to make an assessment on un- 
paid balances, and that before he could recover from the stockholders of 
the corporation, there must have been either corporate action to fix, or a 
judicial assignment of, the defendant's liability. Payson v. Brooke, 19 
Fed. Oas. 17. 

Among the property that came into the hands of the assignee were some 
unfinished locomotives. The court authorized the assignee to expend 
money belonging to the bankrupt estate in finishing them, saying: " There 
is no express provision in the statute touching this jwint; but upon care- 
ful reflection I am satisfied that where a great advantage will result 
to the estate, and within a reasonable time, the assignee may be per- 
mitted to expend money in this way." Foster et al. v. Ames et al., 1 
Low. 313; 9 Fed. Cas. 527. 

The stockholders of a corporation had pledged its bonds, secured by 
mortgage, to secure a personal indebtedness. Thereafter the pledgee 
became bankrupt. The corporation also became insolvent, and its stock- 
holders liable for its debts. The creditor agreed to take the bonds and 
secured the assignee in bankruptcy from liens as a stockholder. Under 
these circumstances, it was held .Iiat he could enforce the individual 
liability of other stockholders. Further held that as the assignee had 
never consented to become a stockholder, there was no liability on his 
part. American File Co. v. Bari.tt, 110 U. S. 288. 

The only relation the assignee sustains to the bankrupt, or oflaee he 
performs for him, is to set aside his exempt property; in all else he is 
agent of the law for the benefit of the creditors; in other words, his duty 
is to collect the bankrupt's estate for distribution among the creditors 
according to their respective rights and priorities. Aiken v. Edrington, 
15 N. B. R. 271; 1 Fed. Cas. 238. 

An assignee in bankruptcy of a corporation does not represent its cred- 
itors for the purpose of enforcing a claim against an officer under a 



Officehs, Theie Duties and Compensation. 217 

statute making him personally liable for the debts of the corporation. 
Bristol V. Sanford, 12 Blatchf. 341; 4 Fed. Cas. 102. 

An assignee In bankruptcy may be required by the district court to take 
whatever steps are necessary for the protection of the rights of creditors. 
Glenny v. Langdon, 98 U. S. 20; Trimble v. Woodhead, 102 Id. 647. 

An assignee In bankruptcy has no standing In the controversies betveeen 
secured creditors unless they shall affect the estate to which he is en- 
titled. Dudley v. Easton, 104 TJ. S. 99. 

It was held, under the Act of 1800, that an assignee could not Impeach 
the authority of the commissioners under whom he received the prop- 
erty of the bankrupt. Gullck's Executors v. Mclver, 3 Cranch O. O. 650; 
11 Fed. Cas. 110 (1804). 

An assignee can retain his fees and commissions out of funds in his 
hands, but not money to cover further expected allowances. He is liable 
to the estate for interest lost by his failure to deposit funds in bank. 
In re Burt, 27 Fed. Kep. 54& 

Under the Act of 1874, the assignee must sell at auction notes belong- 
ing to the bankrupt. If he allows them to be barred by limitation, he is 
liable for the loss r- that being the amount which could have been col- 
lected on them. In re Newcomb, 32 Fed. Rep. 826. 

The assignee having, without the approval of the court, sold real es- 
tate, taking a bond secured by mortgage, the property becoming in- 
adequate to meet the price, it is proper to order the mortgage to be 
transferred to the assignee in his own right, he assuming the amount due 
on the purchase price. Ibid. 

An assignee holding a lien, and being permitted by the court to bid 
on property of the estate at sheriff's sale, there being no fraud, will 
not be chargeable with the profit arising from the transaction. In re 
Carrier, 39 Fed. Rep. 193. 

The court sustained the right of petitioners who had been injuriously 
affected, although they were not parties to the bankruptcy proceedings, 
to set aside the acts of an assignee in bankruptcy upon the ground of 
fraud and illegality. In re King, 3 Fed. Rep. 839. 

In a case where new assets were discovered after the death of the 
assignee in bankruptcy, the court appointed a new assignee to collect 
them, notwithstanding the right of the estate to such assets was doubt- 
ful and subject to litigation. In re Mahoney et al., 5 Fed. Rep. 518. 

The supreme court here considered the difference between the func- 
tions of an assignee in bankruptcy and those of a receiver appointed by 
a court of equity. Booth v. Clark, 17 How. 322. 

An assignee in bankruptcy is an officer of the court, and is limited 
in that capacity to the powers and authority conferred upon him by the 
Bankruptcy Act and the orders of the court. Anything he may do out- 
side of, or in conflict with, or In violation of such powers and authority 
is of course null and void. In re Ryan, 6 N. B. B. 235; 21 Fed. Cas. 104 
(1872). 



318 The Bankeuptcy Law. 

An assignee in banlcruptey is not estopped by a judgment, notwith- 
standing it would worli an estoppel against him in his personal capacity. 
Abendroth v. Durant, 1 Fed. Rep. 849. 

A trustee under an assignment for the benefit of creditors was sub- 
sequently appointed assignee in banliruptcy. Held, that his acts in the 
former capacity must be adopted so far as they were In accordance with 
the deed of assignment. In re Walker, 18 N. B. R. 56; 2& Fed. Cas. 3. 

It is contempt of a court of bankruptcy for an assignee to take any 
measure in a state court without leave. In re Smith, 2 Hughes, 284; 22 
Fed. Cas. 391. 

The court said that no duty was imposed upon an assignee by law to 
institute a search, or even an inquiry, with respect to the interest of the 
bankrupts under a will, which was not mentioned in their schedules, nor 
indicated to the assignee by any of the creditors. In re Mott et al., 17 
Fed. Cas. 902. 

Under the Act of 1867 an order of the district court for the payment 
of a claim on a hearing of which the assignee had no notice, was re- 
versed to give him an opportunity to resist the claim. In re Mltteldorfer 
et al., Chase, 276; 17 Fed. Cas. 534. 

A levy having been made on goods of the bankrupt after the filing of 
his petition, it was held that the assignee should make a sale of the 
goods, and deposit the proceeds subject to the further determination of 
the court. Pennington v. Sale et al., 1 N. B. R. 572; 19 Fed. Cas. 169. 

Judge Hughes, of the district court of Virginia, decided that an as- 
signee in bankruptcy cannot obtain the direction of the court as to the 
mere administration of his trust in matters that are within is own power 
and discretion, unless some opposing interests raised an Issue. Estate of 
Franklin S. F. Soc, 31 Leg. Int. 173; 9 Fed. Cas. 715. 

The Act of 1867 did not authorize a court of bankruptcy to empower the 
assignee to compromise all doubtful debts with the consent of a committee 
of creditors. In re Dibblee et al., 3 Ben. 354; 7 Fed. Cas. 657. 

Under the Act of 1867 the execution of a deed of assignment, and 
the transfer of the property, made the assignee a trustee in possession 
for the equal benefit of all creditors. In re Kimball, 1 N. Y. L. J. 230; 
14 Fed. Cas. 480. 

Where the estate of the bankrupt has been settled and no debts proved, 
the surplus funds in the hands of the assignee will be turned over to the 
bankrupt on his verified petition, showing a proper case therefor. In 
re Hoyt, 3 N. B. R. 55; 12 Fed. Cas. 760. 

An assignee cannot be compelled to account to any court other than 
that which appointed him. In re Bowie, 1 N. B. R. 628; 3 Fed. Oas. 1067. 

Funds in the hands of an assignee in bankruptcy are not taxable by 
the state. In re Boothroyd, 14 N. B. R. 232; 3 Fed. Cas. 881. 

Judge Lowell, of the district court of Massachusetts, commenting upon, 
and dissenting from the opinion of the register in the Boothroyd case 
(14 N. B. R. 232; 3 Fed. Cas. 881), decided that funds in the hands of 



Officees, Theih Duties and Compensation. 219 

an assignee in bankruptcy may be taxed under the laws of a state. In 
re Mitchell, 10 N, B. R. 535; 17 Fed. Cas. 493. 

Funds in the hands of an assignee in bankruptcy are not subject to 
garnishment. In re Cunningham, 19 N. B. E, 276; 6 Fed. Cas. 958. 

Money belonging to the estate of a bankrupt in the hands of an as- 
signee in bankruptcy Is not subject to attachment In re Ohisholm et al., 
4 Fed. Rep. 52a 

It was held that the assignees of a bankrupt, under the laws of Eng- 
land, could not maintain an action against a debtor of the bankrupt in 
this country in their own name. Perry et al. v. Barry, 1 Cranch C. O. 
204; 19 Fed. Gas. 266. 

It was held that trustees, under section 43 of the Act of 1867, could 
settle the estate under the direction of the committee, or the court might 
limit them to the powers and duties exercised by assignees. In re Darby, 
4 N. B. R. 309; 6 Fed. Cas. 1177. 

Previous to the proceedings the bankrupt had become the owner of 
a judgment. Later, he died and an executrix was appointed. There- 
after the judgment was revived by a writ of scire facias, the assignee, 
and upon his death his successor, being made a party. The judgment 
debtor moved to set the proceedings aside. The supreme court held that 
the writ of scire facias was properly sued out by the bankrupt's executrix, 
and that there was no reason why the bankrupt should be relieved from 
the judgment. Brown v. Wygant et al., 163 U. S. 618. 

It was held, under the Act of 1841, that an assignee might make an 
allowance for the support of the bankrupt and his family, not exceeding 
$300; and also that he might employ the bankrupt in taking charge of 
the property, and pay him a reasonable compensation for such services. 
In re Grant, 2 Story, 312; 10 Fed. Cas. 973. 

An assignee in bankruptcy who is appointed after the commencement 
of proceedings to foreclose a mortgage given by his bankrupt, and before 
judgment. Is in the position of a purchaser under like circumstances. 
Eyster v. GafC, 91 U. S. 521. 

The bankrupt and his assignee were directed to convey the property 
of the former to trustees " subject to the approval of the court." It was 
held that the trustees had no standing In court until such approval was 
obtained. Potter v. Wright, 19 Fed. Cas. 1197. 

[See notes to §§ 60, 67 and 70.] 

Compensation. 

§ 48. Compensation of Trustees. — (a.) Trustees shall receive, as 
full compensatioii 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 volun- 
tary bankrupt, and from estates which they have administered, such 
commissions on sums to be paid as dividends and commissions as may 



230 The Bankeuptcy Law. 

be allowed by the courts, not to exceed three per centum on the first 
five thousand dollars or less, two per centum on the second five thou- 
sand dollars or part thereof, and one per centum on such sums in 
excess of ten thousand dollars. 

(b.) In the event of an estate being administered by three trustees 
instead of one trustee oj by successive trustees, the court shall ap- 
portion the fees and commissions between them according to the 
services actually rendered, so that there shall not be paid to trustees 
for the administering of an 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. 

An assignee's bill of costs and fees under the Act of 1867 is reviewed 
in the case cited. In re Tulley, 2 N. B. R. 82; 24 Fed. is. 315. 

The fact that an assignee in bankruptcy is an a rney-at-law does 
not authorize the allowance of any extra compensation. In re Muldaur 
«t al., 8 Ben. 65; 17 Fed. Cas. 958. 

Judge Treat held that where the assignee In bankruptcy was an at- 
torney-at-law he might be allowed additional compensation for his ser- 
vices In the conduct of necessary litigation. In re Welge, 1 Fed. Rep. 
216. 

Judge Blodget held that only the court, and not the creditors, could 
allow extra compensation to the assignee in bankruptcy, under the A(.t 
of 1867. In re Merchants' Ins. Co., 6 Biss. 252; 17 Fed. Oas. 43. 

Real estate of the bankrupt was sold by him under the power con- 
ferred by a mortgage. The sale was made by leave of the court of bank- 
ruptcy, and the mortgagee became the purchaser, no money being re- 
ceived or disbursed by the assignee. Held, under the Act of 1867 (sec- 
tion 5100, R. S.), that the assignee was not entitled to commissions. In 
re Slevin, 4 Dill. 131; 22 Fed. Oas. 323. 

Held, under the Act of 1867 (section 5099, R. S.), that the allowance of 
compensation to the assignee is within the discretion of the court of 
bankruptcy, notwithstanding the rules of the supreme court. The court, 
and not the register, must exercise the discretion, and assignees seeking 
to recover fees beyond those prescribed in rule 30, must notify creditors. 
Ex parte Whitcomb, 2 Low. 523; 29 Fed. Cas. 962. 

In this case the court held that lack of possession of the bankrupt's 
property on the part of the assignees did not destroy their right to com- 
pensation. " The duty of looking out for the interests of all was as pro- 
nounced as though they had the actual compensation, and the lack of 
possession was only to be considered in determining the amount of the 
•compensation." Meddaugh v. Wilson, 157 U. S. 333. 



Officers, Their Duties and Compensation. 231 

Accounts and Eecords. 

§ 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. 

Bonds. 

§ 50. Bonds of Keferees ' of Trustees.— (a.) Referees, before 
assuming the duties of their offices, and within such time as the dis- 
trict courts of the United States having jurisdiction shall prescribe, 
shall respectiyely qualify by entering into bond to the United States 
in such sum as shall be fixed by such courts, not to exceed five thou- 
sand 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 adjudication, or after a vacancy has occurred in the office of trus- 
tee, or after an estate has been reopened, or after a composition has 
been set aside or a discharge revoked, if there isi 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 sure- 
ties 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 office of the clerk of the court and may be 



228 The Bankruptcy Law. 

sued upon in the name of the United States for the use of any per- 
son injured by a breach of their 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 pro- 
vided and within the time limited, he shall be deemed to have de- 
clined his appointment, and such failure shall create a vacancy in 
his o£B.ce. 

(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. 

Otheb Officehs — Cleeks of the Coubt. 

§ 51. Duties of Clerks. — (a.) Clerks shall respectively (1) ac- 
count 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 peti- 
tioner 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, ii 
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. 

Pees of Cleeks and Maeshais. 

§ 52. Compensations of Clerks and Marshals. — (a.) Clerks shall 
respectively receive as full. compensation for their service to each es- 
tate, a filing fee of ten dollars, except when a fee is not required from 
a voluntary bankrupt. 



Officees, Theie Duties and Compensation. 233 

(b.) Marshals shall respectively receive from the estate where an 
adjudication in bankruptcy is made, except as herein otherwise pro- 
vided, for the performance of their services in proceedings in bank- 
ruptcy, 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 ser- 
vices in other cases in accordance with laws now in force, or such as 
may be hereafter enacted, fixing the compensation of marshals. 

The commissions of tbe clerk of the court under the Bankrupt Act 
of 1867 are considered in the case cited. Leech v. Kay, 4 Fed. Rep. 72. 

The allowance of fees and expenses to a marshal for the custody of 
property, making inventories and collecting and paying over money to 
the assignee, is considered at length in In re Johnston et al., 8 Ben. 191; 
13 Fed. Cas. 876. 

The fees of a L'nited States marshal as messenger under the Act of 1867 
are considered in the case cited. In re Talbot, 2 N. B. R. 280; 23 Fed. Cas. 
640. 

Under the Act of 1867 a marshal was entitled to a commission for 
moneys belonging to the bankrupt's estate collected by him as messenger. 
In re PfafC, 7 Ben. 61; 19 Fed. Cas. 414. 

Attohnet-Geneeal. 

§ 53. Duties of Attorney-General. — (a.) The Attorney-General 
shall annually lay before Congress statistical tables showing for the 
whole country, 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 im- 
portant. 

Eepoets of Officees. 

§ 54. Statistics of Bankruptcy Proceedings. — (a.) Officers shall 
furnish in writing and transmit by mail such information as is within 
their knowledge, 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. ■ 



224i The Bankbttptcy Law. 

CHAPTER V. 

Cebditoes — Meetings. 

§ 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 in- 
terest, 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 parties in interest. 
If such meeting should by any mischance not be held within such 
time, the court shall fix the date, as aoon as may be thereafter, when 
it shall be held. 

(b.) At the first meeting of creditors the judge or referee shall pre- 
side, and, before proceeding with the other business, may allow or 
disallow the claims of creditors there presented, and may publicly ex- 
amine the bankrupt or cause him to be examined at the instance of 
any creditor. 

(c.) 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 creditors^ 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. 

(f .) Whenever the affairs of the estate are ready to be closed a final 
meeting of creditors shall be ordered. 

It was held, under the Act of 1867 that the first meeting of creditors 
should be kept open for at least one hour. This was decided in the case 
where the hour was 10 o'clock, and the register closed the polls at 



Ceeditoes — Meetings. 325 

half-past 10. It was held that other creditors who appeared and voted 
before II should be counted. In re Gilley, 2 Low. 250; 10 Fed. Gas. 390. 

It was held, under the Act of 1867 that a register could not adjourn a 
meeting of creditors by letter, or otherwise than by personal attendance 
at the time and place fixed for the meeting. In re Dickinson, 18 N. B. 
R. 514; 7 Fed. Gas. 675. 

In a case where all the creditors of the bankrupt resided in Germany 
the petitioner requested the register to fix the first meeting of creditors 
at twenty days from the date of the warrant. The register decided that 
sixty days was the shortest time that could reasonably be made, and 
his action was approved by Judge Blatchford. In re Heys, 1 Ben. 333; 
12 Fed. Gas. 91. 

VOTBES. 

§ 56. Voters at Meetings of Creditors. — (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 pro- 
vided. 

(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. 

An attorney In fact of the creditors, who proved their claim in bank- 
ruptcy, employed an attorney-at-law to act for the firm at a creditors' 
meeting. It was held that the authority of the latter was not sufficient. 
In re Knoepfel, 1 Ben. 330; 14 Fed. Gas. 782. 

It was held, under the Act of 1867 and general order 34, that letters of 
attorney to represent crediors may be acknowledged before a notary pub- 
lic. In re Butterfield, 14 N. B. R. 195; 4 Fed. Gas. 919. 

A bankrupt firm was Indebted to the wards of one of the partners on 
notes running to him as guardian, but not indorsed by him to the wards. 
The wards, upon coming of age, were held to be competent to vote as 
creditors. In re Bailey et al., 2 Woods, 222; 2 Fed. Gas. 362. 

Where creditors, after proving their claims, sell them, they can take 
no further part in the proceedings, and the transferee can cast but one 
vote on such claims. In re Foye, 2 Low. 399; 9 Fed. Gas. 649. 

It was held, under the Act of 1867, that a creditor having security could 
prove his claim, but could not vote for assignee. In re Davis et al., 1 N. 
B. R. 120; 7 Fed. Gas. 49. 

A wife, who was a creditor In her own right, voted in favor of a 
composition. Afterward her husband filed an affidavit that he had given 

15 



22Q The Bankeuptct Law. 

her authority to vote. This was held to validate the wife's act. In re 
Bailey et al., 2 Woods, 222; 2 Fed. Cas. 362. 

A secured creditor may vote for assignee on the unsecured portion of 
iis demand. In re Parker, 10 N. B. R. 82; 18 Fed. Cas. 1184 (1874). 

Until a creditor has proved his claim, he should not be heard as a 
creditor, and has no right to be heard in any other character. In re 
Brisco, 2 N. B. R. 226; 4 Fed. Cas. 152. 

After a creditor has proved his claim, and until the court has ex- 
punged the proofs, the register cannot refuse to receive the vote of the 
claimant or exclude him from a dividend. In re Jaycox et al., 7 N. B. 
R. 303; 13 Fed. Cas. 399. 

Chief Justice Chase expressed doubt whether one member of a bank- 
rupt firm should be allowed to represent a claim against the estate as 
trustee or agent. In re Mitteldorfer et al., Chase, 276; 17 Fed. Cas. 534. 

When an indorser of a note pays it to the indorsee, who has proved it 
in bankruptcy, the latter can take no further part in the proceedings, 
and the indorser becomes subrogated to his rights. In re Broich et al., 
7 Biss. 303; 4 Fed. Cas. 205. 

A power of attorney to authorize the person named to represent a cred- 
itor in bankruptcy was held not to be invalid for the want of proper 
revenue stamps. In re Myrlck, 3 N. B. B. 156; 17 Fed. Cas. 1131. 

At a creditors' meeting for composition, a creditor voted on unsecured 
debts, but certain secured debts were not considered. Subsequently, he 
sold the securities, which failed to satisfy the debt for which they were 
pledged. It was held that not having had the securities valued, the 
deficiency must be treated as an unsecured debt. Flower v. Greenbaum, 
50 Fed. Rep. 190. 

Where there were two persons claiming a right to vote on a claim, 
the register made a decision in favor of one of them, and the other 
allowed the vote to be taken without further objection. It was held that 
he could not reopen the question. In re Speicer, 18 N. B. R. 199; 22 
Fed. Cas. 914. 

In order to entitle a creditor to vote at the first meeting, he should be 
required to release or surrender any security he may have for the debt 
voted on. In re Saunders, 13 N.. B. B. 164; 21 Fed. Cas. 524 (1875). 

Piling, Etc., of Claims. 

§ 57. Proof and Allowance of Claims. — (a.) Proof of claims shall 
consist 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 
BO what, payments 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 



Ceeditoks — Claims. 33*5' 

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 tinder 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 pend- 
ing 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. 

(e.) Claims of secured creditors and those who have priority may be 
allowed to enable such creditors to participate in the proceedings at 
creditors' meetings held prior to the determination of the value of 
their securities or priorities, but shall be allowed for such sums only 
as to the court seems 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 estate and 
the claimants will permit. 

(g.) The claims of creditors who have received preferences shall not 
be allowed unless such creditors shall surrender their preferences. 

(h.) The value of securities held by secured creditors shall be deter- 
mined by converting the same into money according to the terms of 
the agreement pursuant to which such securities were delivered to such 
creditors or by such creditors and the trustee, by agreement, arbitra- 
tion, 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.) "Wheiever 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 undertaking 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, ex- 
cept for the amount of the pecuniary loss sustained by the act, trans- 
action, or proceeding 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. 



338 The Bankhuptot Law. 

(k.) Claims which have been allowed may be reoonsidered for cause 
and reallowed or rejected in whale 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 bank- 
ruptcy 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 litiga- 
tion and the final judgment therein is rendered within thirty days 
before or after the expiration of such time, then within 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. 

How and by Whanx Proved. 

Under the Act of 1867 it was not necessary that a power of attorney to 
prove a claim should be acknowledged. In re Barnes, 1 Low. 560; 2 Fed. 
Gas. 854. 

An account against a bankrupt that has been assigned may be proved 
by the deposition of the assignee without that of the assignor; but the 
proof should give the name of the original creditor. Ex parte Davenport, 

1 Low. 384; 7 Fed. Gas. 6. 

Under the Act of 1867 the oath of an agent in proof of a claim that he 
is better acquainted with the facts than the principal would not make 
such proof admissible. In re Whyte, 9 N. B. R. 267; 20 Fed. Gas. 1129. 

Held, that the proof of a claim might be made by an agent who has 
personal knowledge of all the facts required to be proved. In re Watrous 
et al., 14 N. B. R. 258; 29 Fed. Gas. 419. 

A receiver appointed by a court to take charge of the property of a 
creditor was held to be an assignee of the debt, and competent to prove 
it in bankruptcy proceedings. In re Mills, 17 N. B. R. 472; 17 Fed. Gas. 
397. 

Under the laws of Pennsylvania (April 15, 1869), a bankrupt can be a 
witness in support of a claim by his wife. In re Bean, 14 N. B B 182- 

2 Fed. Gas. 1120. 

The capital stock of a corporation organized under the laws of New 
York had not been paid within the time provided by the Act authorizing 



Ckeditoes — Claims. 329 

such corporation. The president of the corporation, having become a 
bankrupt, made proof as president of a debt due by him to the corpora- 
tion, though he had previously ceased to be a stockholder. A motion to 
expunge the proof of debt was denied. In re Morgan, 8 Ben. 186; 17 Fed. 
Cas. 746. 

A debt which has been assigned after the commencement of proceedings 
in bankruptcy may be proved against the estate either by the assignor or 
by the assignee. In re Murdock, 1 Low. 362; 17 Fed. Cas. 1010. 

After the debt of the bankrupt, a creditor offered to be sworn in proof 
of his claim against the estate. The register ruled that he was not a 
competent witness, and certified the question to the district court. The 
district court decided that the law of the United States, and not of the 
state; controlled; that the creditor could not be excluded on account of his 
interest and was otherwise competent, and that the proof of a debt is a 
proceeding in rem, and not an action against the bankrupt or his legal 
representative. In re Merrill, 9 Ben. 165; 17 Fed. Oas. 80. 

On the application of the surety, a court of equity will require a creditor 
to prove his debt against the principal, provided that the surety brings the 
amount out into court. In re Babcock, 3 Story, 393; 2 Fed. Oas. 289 (1844). 

When a member of a bankrupt firm is also a member of another firm to 
which the former is indebted, the other partner in the latter firm can 
prove its debt. In re Buckhause, 2 Low. 331; 4 Fed. Oas. 560. 

Proof of a claim against a firm cannot be united with proof of a claim 
against one of the partners. In re Walton et al., Deady, 510; 29 Fed. Cas. 
127. 

In proving a claim against a partnership, it should appear clearly 
whether it was contracted by the firm or the individual partners. Ibid. 

The proof of a claim must show that a debt exists in favor of the 
claimant which he has a present right to have paid out of the estate of the 
bankrupt; otherwise it will be rejected. Ibid. 

Claims should be proved before the register, notwithstanding the pro- 
ceedings in bankruptcy had been stayed under the provisions of section 
43 of the Act of 1867. In re Bakewell, 4 N. B. R. 619; 2 Fed. Cas. 500. 

Under the Act of 1867 claims against an estate in bankruptcy could be 
proved by attorney. In re South Boston Iron Co., 4 Cliff. 343; 22 Fed. 
Cas. 812. 

The creditor's Christian name ought to appear in the proof of a claim 
though it is omitted in the note upon which the indebtedness was based. 
In re Valentine, 4 Biss. 317; 28 Fed. Cas. 868. 

The rules under the Act of 1867, respecting the proving of debts bv 
nonresident creditors, and the taking of depositions are considered m 
the case cited. In re Strauss, 2 N. B. R. 48; 23 Fed. Oas. 231. 

A proof of debt cannot be taken before an attorney of the creditor; 
and where such proof is made before a notary public, his official seal must 
be attached. In- re Nebe, 11 N. B. R. 289; 17 Fed. Oas. 1268. 

After quoting from section 22 of the Act of 1867, Judge Longyear said: 
"In this state of the law, I cannot see that the court has any jurisdic- 



^30 The Bankeuptot Law. 

tlon to refuse to receive and file a proof of debt which appears on its 
face to have been taken by a proper officer, and to be correct in form and 
in substance. By the receipt and filing of proof of debt, and by It alone, 
the court obtains jurisdiction of the claim, and of the creditor presenting 
it; and then and then only does the revisory power of the court over such 
proof mentioned in the Act of 18G8 commence." In re Merrick, 7 N. B. 
R. 459; 17 Fed. Gas. 75. 

When the proof of a claim is by deposition, it must state whether the 
claim is secured or unsecured. Otmningham v. Cady, 13 N. B. R. 525; 
6 h'ed. Gas. 906. 

Where an Indebtedness is evidenced by a note, it must be produced 
when called for; but this is not the rule when the note has been reduced 
to a judgment. In re Knoepfel, 1 Ben. 398; 14 Fed. Gas. 783. 

Under the Act of 1867 it was held that a debt was not proved where 
the creditor had only filed a deposition setting forth a claim for unliqui- 
dated damages on a breach of contract, but making no application for 
their assessment. In re Clough, 2 N. B. R. 151; 5 Fed. Gas. 1086. 

Judge Lowell expressed the opinion that under the Act of 1867 a debt 
is to be considered as proved when it is duly authenticated and sent to the 
assignee or register, without regard to when the formal entry of its al- 
lowance is made. Ex parte Harris et al., 2 Low. 568; 11 Fed. Gas. 606. 

After the election of a trustee under section 43 of the Act of 1867, 
a creditor could not prove his claim, but should apply to the court for 
leave to make such proof. In re Trowbridge, 9 N. B. R. 274; 24 Fed. Gas. 
218. 

Five years after the discharge of the bankrupt, assets were unex- 
pectedly realized, and a meeting of creditors was called to make a distri- 
bution. It was held that a creditor could prove a debt at such meeting, 
and participate in the dividends under section 28 of the Act of 1867. In 
re Robinson, 2 Low. 326; 20 Fed. Gas. 961. 

Claims existing at the time of the commencement of proceedings may 
be proved in bankruptcy as long as there Is a fund to distribute. In re 
Maybin, 15 N. B. R. 468; 16 Fed. Gas. 1221. 

Glaims against a bankrupt cannot be proved after the day upon which 
the creditors were required to show cause why he should not be dis- 
charged. Hester v. Baldwin, 2 Woods, 433; 12 Fed. Gas. 00. 

Where proof of a claim has been deferred by the register until after 
the election of an assignee. It is then to be ti-eated as if it had not been 
tendered before the election. In re Herrman, 4 Ben. 126; 12 Fed. Gas. 53. 

The postponement of the proof of a claim is within the discretion of 
the register under section 23 of the Act of 1867. In re Jacoby, 13 Fed. 
Gas. 280. 

Debts need not be proved at the hour mentioned in the notice; any 
time during the session of the court on the day fixed is suflicient. In re 
Gaylor, 10 Fed. Gas. 119. 

A creditor who seeks to prove his claim must do so unreservedly, and 
Is not at liberty to interpose any protest or qualification. Button et al. 
V. Freeman, 5 Law Rep. 447; 8 Fed. Gas. 175 (1842). 



Ceeditoes — Claims. 331 

In proving a promissory note as a claim against tlie banlirupt's estate, 
the liolder must set forth the consideration, and whether any payments 
have been made upon it. In re Loder, 4 Ben. 123; 15 Fed. Gas. 717. 

Proof of a claim in bankruptcy by deposition must show the particu- 
lars of the consideration. In re Elder, 1 Saw. 73; 8 Fed. Gas. 401. 

A creditor cannot make proof of debt before a notary public who is 
the attorney of record of the bankrupt. In re Keyser, 9 Ben. 324; 14 Fed. 
Gas. 442. 

A creditor represented that a new note had been given for two old 
notes that he had proved against an estate in bankruptcy, and asked 
leave to amend his proof. The application was denied, the court holding 
that he must prove the new note as a new claim. In re Montgomery, 
3 N. B. R. 430; 17 Fed. Gas. 622. 

When the bankrupt firm has been held liable for a doubtful, but 
scheduled claim, the court may order the register to adjourn proceed- 
ings on a petition for discharge in order that other creditors may have 
an opportunity to be heard. In re Ketchum et al., 1 Fed. Rep. 838. 

Held, under the Act of 1867, that a creditor who had filed and verified 
a claim which was partly fi-audulent could not receive dividends on any 
part of his claim. Marrett v. Atterbury, 3 Dill. 444; 16 Fed. Gas. 780. 

A creditor may waive a claim, but Is not permitted to withdraw the 
proof from the files after it is once made. In re Emison, 2 N. B. R. 595; 
8 Fed. Gas. 666. 

The authority of the court to authorize a creditor to withdraw the 
proof of his debt will not be exercised for the purpose of allowing a cred- 
itor to continue an arrest of the bankrupt made before the filing of the 
petition. In re Wiener, r4 N, B. R. 218; 29 Fed. Gas. 11.54. 

The Act of 1867 (section 5081, R. S.) was construed to give authority to 
the court to correct any mistake in the proof of a claim made without 
fraud, and to allow the proof to stand for the sum actually due. In re 
New Brunswick Carpet Co., 4 Fed. Rep. 514. 

In composition proceedings, an unliquidated claim may be determined 
by the prosecution to judgment of an action pending in the state court, 
or by direct proceedings in the court of bankruptcy. In the former 'case, 
the creditor should take no execution on any judgment he may obtain. 
Ex parte Trafton, 2 Low. 505; 24 Fed. Oas. 122. 

The bankruptcy court has discretion to allow proofs of debt to be 
amended, and in the absence of fraud will exercise that power in cases of 
mistalie of either law or fact, when all parties remain in the same situa- 
tion, and where justice demands it. In re Parker, 10 N. B. R. 82; 18 Fed. 
Gas. 1184 (1874). 

Creditors who had filed proofs of their debts which were decided to 
be insufficient, asked leave to withdraw them from the files. The register 
refused to permit this, and his action was sustained by the court. In, 
re Hallie et al., 7 Ben. 182; 11 Fed. Gas. 290. 

Under the circumstances of the case, a creditor was allowed to amend 
the proof of his debt five months after he had filed it, and after he had 



232 The Bankexjptct Law. 

been examined by the assignee. In re Montgomery, 3 Ben. 566; 17 
Fed. Cas. 620. 

Where proof of a claim has been made under a mistalce of fact, or even 
of law, it may be corrected almost as a matter of course, if neither the 
bankrupt nor any of the other creditors who have proved their claims 
will be injured. In re Hubbard, 1 Low. 190; 12 Fed. Cas. 775. 

It was decided under the Act of 18G7 that a register could not order 
or permit the withdrawal of the proof of a debt after he had passed upon 
the same, and allowed, certified and transmitted it to the assignee. In 
re Mcintosh, 2 N. B. R. 506; 16 Fed. Oas. 151. 

Clerical errors in the proof of a claim may be corrected at any time 
before the final dividend is declared. In re Myrick, 3 N. B. B. 156; 17 
Fed. Cas. 1131. 

Where an error had occurred in the proof of a claim the creditor was 
not allowed to withdraw it, but was allowed to amend his proof. In re 
Lowerre, 1 Ben. 406; 15 Fed. Cas. 1030. 

Secured Claims. 

A creditor in proving his claim should set forth the particular char- 
acter of his Hen so that it may be liquidated, if necessary. In re Bridg- 
man, 1 N. B. R. 312; 4 Fed. Cas. 111. 

A creditor proving his claim as unsecured will be required to relinquish 
his securities on the summary petition of the assignee. In re Granger et 
al., 8 N. B. B. 30; 10 Fed. Cas. 958. 

A creditor who has security on property that never belonged to the 
bankrupt can prove his whole debt without first selling the security. In 
re Dunkerson et al., 4 Biss. 253; 8 Fed. Cas. 51. 

Where a creditor was secured by a mortgage, and the property was 
subsequently sold under an execution subject to the mortgage, it was 
held that he could prove his debt as unsecured. In re Kinne, 5 Fed. 
Rep. 59. 

An attachment levied within four months, being dissolved by the as- 
signment by operation of law, the attaching creditor has no lien to sur- 
render, and is not barred from participating in the estate. In re Carrier, 
51 Fed. Rep. 900; Duff v. Carrier, 55 id. 433. 

A claim in the form of a bond is not to be regarded as secured because 
the sureties have been indemnified by mortgage. In re Lloyd, 15 N. B. 
R. 257; 15 Fed. Cas. 711. 

An indorsed note is not a secured claim within the contemplation of the 
Act of 1867 (section 5075, R. S.). In re Broich et al., 7 Biss. 308; 4 Fed. 
Cas. 205. 

A creditor whose attachment is avoided by the tei-ms of the law is not 
to be regarded as a secured creditor. Ibid. 

A creditor who has recovered judgment against a bankrupt after the 
adjudication need not vacate his judgment before proving the claim 
on which it is founded, provided the claim was otherwise properly prov- 
able. In re Stevens, 4 Ben. 513; 23 Fed. Cas. 1. 



Ceeditoks — ■ Claims. 333 

The creditor of a firm held securities upon the separate property of one 
of the members. Held, that he could prove his entire debt against the 
estate of the partnership without releasing his security. In re Thomas 
et al., 8 Biss. 139; 23 Fed. Oas. 923. 

A party holding security other than the property of the bankrupt may 
prove for his entire claim, and retain his security. In re Norris, 18 Fed. 
Cas. 317 (187G). 

Where a debt has been guai-anteed by another person, the creditor may 
nevertheless prove it as an unsecured claim. In re Anderson, 7 Blss. 233; 
1 Fed. Cas. 829. 

Where a claimant was not allowed to prove his indebtedness, the 
court refused to compel him to surrender the securities given by the bank- 
rupt to secure the rejected claims. Dallet v. Flues et al., 28 Leg. Int. 
325; 6 Fed. Cas. 1120. 

A creditor who had levied an execution without knowledge of the in- 
solvency of his debtor may relinquish Ws lien and thereupon prove his 
debt. Ooxe et al v. Hale et al., 10 Blatchf. 56; 6 Fed. Cas. 689. 

A secured creditor may prove his claim for the overplus without sur- 
rendering his security, but he can only vote on such overplus. In re 
Bolton, 2 Ben. 189; 3 Fed. Cas. ' 

After the commencement of proceedings in bankruptcy, a secured cred- 
itor should first prove his debt, and then ask permission of the court to 
enforce his security. A sale without such permission will be set aside; 
or the covirt may confirm it upon terms, if the property was sold for a 
fair price. Lee v. Franklin Ave. German Sav. Inst, et al., 3 N. B. R. 218; 
15 Fed. Cas. 155. 

Under the Act of 1867, a mortgagee was required to prove his debt, 
and obtain' the leave of the court in bankruptcy to have the security 
sold, otherwise the court would set aside the sale. In re Davis, 2 N. B. R. 
391; 7 Fed. Cas. 56. 

In a case of which there is no other report than the syllabi. Judge 
Treat is represented as raising, without deciding, the question whether 
a sale of a security by a secured creditor, without the leave of the court, 
passes any title to the purchaser. In re Needham, 1 Chi. Leg. News, 171; 
17 Fed. Cas. 1275. 

A creditor secured by a deed of trust, after having proved his claim 
as secured, should procure the leave of the court to sell his security, and 
if he falls to do so, the sale will be set aside. Ibid. 

Under the Act of 1867 creditors secured by mortgage waived their se- 
curity If they proved' their debts in full. Ex parte Morris, 2 Low. 424; 17 
Fed. Cas. 783. 

Under section 5, Act of 1841, a judgment creditor who proves his debt 
thereby surrenders his lien upon the lands of the bankrupt. Briggs v. 
Stephens, 7 Law Rep. 281; 4 Fed. Oas. 124 (1844). 

Where a creditor proves his debts as unsecured, he thereby waives any 
lien he may have upon the property of the bankrupt. White- v. Crawford, 
9 Fed. Cas. 371. 



334 The Bankeuptct Law. 

The signing of a petition in involuntary bankruptcy by a secured cred- 
itor operates as a waiver or abandonment of his security. In re Bear et 
al., 5 Fed. Kep. 53. 

A creditor who proves his whole debt as unsecured Without disclosing 
the security was held under the Act of 1867 to waive his lien; but an ex- 
ception was made in favor of an executor who acted innocently, and in 
ignorance of the law. In re Bland, 2 Hughes, 334; 4 P^ed. Cas. 17. 

A secured creditor who joins in a petition without mentioning his 
security thereby waives it. In re Broich et al., 7 Biss. 303; 4 Fed. Cas. 
205. 

The creditor who files a petition in involuntary banl^ruptcy by virtue of 
a secured debt, without mentioning that he has a lien by judgment, 
thereby waives his lien. In re Bloss, 4 N. B. R. 147; 3 Fed. Cas. 733. 

A foreign firm proved a debt in bankruptcy, a part of which had been 
collected by a judgment and execution. It was held that it must first 
pay to the assignee the amount so collected, and release its judgment, 
and then share equally with the other creditors upon the whole amount 
of the original indebtedness, with interest to the date of adjudication 
only. In re Bugbie, 9 N. B. R. 258; 4 Fed. Cas. 609. 

A creditor who had been secured by a deed of trust said the property 
under the power conveyed in such deed. Held, that he might neverthe- 
less prove his debt under the circumstances of the case cited. In re 
Ruehle, 2 N. B. R. 577; 20 Fed. Cas. 1311. 

" If a creditor has a mortgage or pledge for his debt, he may apply to 
the court to have the same sold, the proceeds thereof applied toward the 
payment of his debt pro tanto, and if the debt is not wholly satisfied out 
of the security, may prove for the residue." In re Stewart, 1 X. B. R. 
278; 23 Fed. Cas. 50. 

A secured creditor who proved his claim as unsecured by mistake was 
allowed to withdraw his proof upon terms, notwithstanding he had re- 
ceived dividends; but was required to return the dividends with interest. 
In re Baxter, 12 Fed. Rep. 72. 

A secured creditor proved his claim under the Act of 1841 in Ignorance 
of the fact that he was required to surrender his securities. The court 
allowed him to withdraw his proof. Ex parte Harwood, Crabbe, 496; 11 
Fed. Gas. 762 (1842). 

Where a creditor is secured, but proves his claim as an unsecured debt 
in ignorance of the fact that he is secured, he should be allowed to with- 
draw his proof and prove as a secured creditor. If, however, he has ac- 
cepted a dividend on his first proof to the prejudice of other creditors, he 
is bound by his election. In re Jaycox et al., 8 N. B. R, 241; 13 Fed. Cas. 
400. ' 

A creditor who was abundantly secured made proof of his claim, in 
ignorance of the law, without mentioning his security. The court allowed 
him to withdraw his proof and restored him to his former status. In re 
Clark et al., 5 N. B. R. 255; 5 Fed. Cas. 850. 

Under the Act of 1841 a secured creditor who had proved his debt was 
allowed to withdraw his proof after notice to the bankrupt and assignee, 



Cbeditoes — Claims. 335 

under the circumstances of the case. Ex parte Lapsley, 1 Penn. L. J. 
245; 14 Fed. Cas. 830. 

Creditors ^\ho bad proved their claim and received a dividend from a 
bankrupt's estate were indebted to the bankrupt for a lesser amount. The 
trustees in banlcruptcy having brought suit against them, they were 
allowed to withdraw the proof of the claim, repay the dividend received, 
and file a new proof as of a secured claim, secured by their debt to the 
bankrupt. In re Kaufman et al., 8 Ben. 394; 14 Fed. Cas. 153. 

The laws of New Jersey gave the landlord a preference for one j'ear's 
rent from the proceeds of personal property on the leased premises, and 
extended the same privilege to operatives in manufactories for one 
month's wages. The landlord, having proved his claim for rent as an un- 
secured crdeitor, in Ignorance of his privilege, was allowed to amend his 
proof; and the court further held that section 28 of the Act of 1867 did 
not give to the classes of creditors enumerated any privilege over secured 
creditors. In re McConnell, 9 N. B. R. 887; 15 Fed. Cas. 1297. 

When both the maker and indorser of a note become insolvent, the 
latter may recover the security given to the latter, and apply the same in 
payment of the note. Mathews v. Abbott, 2 Hask. 289; 16 Fed. Cas. 1034. 

A creditor having a lien on the propei:ty of a third party to secure a 
debt due from the bankrupt, and who releases the lien for a consideration, 
must credit the amount of the consideration on his claim. Seay v. Wilson, 
9 Fed. Rep. 589. 

A judgment creditor levied upon the goods of a bankrupt before, and 
sold them after, the adjudication. Held, that he might prove any unpaid 
balance of the judgment debt against the estate in bankrupcy. In re 
Shirley, 9 Fed. Rep. 901. 

A mortgagee of the bankrupt obtained leave of the court of bankruptcy 
to foreclose his mortgage in a state court, and the assignee was made 
a party. It was held that he could prove the deficiency as a claim against 
the bankrupt's estate. In re Letchworth, 18 Fed. Bep. 822. 

A mortgagee of the bankrupt foreclosed the mortgage and the property 
was sold for less than his claim. He proved the balance against the mort- 
gagor in bankruptcy proceedings. After the discharge of the latter in 
bankruptcy, he obtained a decree in the foreclosure proceedings for the 
deficiency. It was held that by proving his debt in bankruptcy, he waived 
his right to take judgment for the deficiency. Scott v. Ellery, 142 V. S. 
381. 

Held, under the Act of 1867, that where a mortgagee proved his debt in 
bankruptcy he became a general creditor only for the balance after de- 
ducting the value of the mortgaged property. Henry v. La Societe 
Francaise, 95 U. S. 58. 

When a mortgagee, having obtained leave to foreclose in a state court, 
on condition of waiving his claim for any deficiency, for sufficient reasons 
fails to prosecute the foreclosure suit, he is not thereby precluded from 
being admitted as a creditor in the bankruptcy proceedings. In re Lin- 
forth, 87 Fed. Rep. 386 (1898). 



236 The Bankeuptcy Law. 

The fact that a part of the property on which the lien exists is a home- 
stead does not change the equity rule which requires a party having se- 
curity on two funds to first exhaust his remedy on that In which he alone 
is secured. In re Sauthoff, 14 N. B. E. 3&4; 21 Fed. Cas. rj40 (1875). 

A creditor of a bankrupt having several securities for his debt may be 
required to exhaust the property on which he has an exclusive lien before 
proceeding against other securities which are shared by the other 
creditors. In re Sauthoff, 14 N. B. R. 364; 21 Fed. Oas. 540' (1876). 

A secured creditor sold his security, which was supposed to have no 
value, for a considerable sum. The circuit court held that the district 
court had authority to confirm the sale, and to permit the proof of the 
balance of the debt. Bradley et al. v. Adams Express Co., 3 Fed. Rep. 
895. 

Where the proof of judgment debts showed that the creditor had not 
received " any manner of satisfaction or security whatsoever," and by 
the state law the judgment itself was a lien on real estate of the debtor, 
the fact that the claim was so proved did not amount to a surrender of 
such lien, since the proof of the judgments indicated the lien, the assignee 
having knowledge of the bankrupt's real property. Sedgwick v. Stewart, 
9 Ben. 433; 21 Fed. Cas. 104 (1878). 

The holder of indorsed notes of the bankrupt had granted an extension 
of two months for a valuable consideration. Held, that the Indorser was 
not discharged; that the general rule of law did not apply to such a case, 
and that the remedy of the indorser was to prove his contingent liability 
against the estate of the bankrupt as authorized by the Act of 1841. 
Tiernan v. Woodrufe, 5 McLean, 350; 28 Fed. Cas. 1206 (1852). 

A creditor of a firm was secured by the pledge of property belonging 
to one of the members. It was held that he was bound to prove his whole 
debt against the firm assets, but could only prove the deficiency after 
realizing on the security against the separate assets of such partner. In 
re May et al., 17 N. B. R. 192; 16 Fed. Cas. 1208. 

A mortgagee foreclosed two mortgages in a state court. The bankrupt 
and his wife and the assignee were made defendants. The assignee had 
notice of the sale, but the mortgagee had not obtained the leave of the 
court of bankruptcy. The mortgaged property did not reali'se the amount 
claimed, and the mortgagee was allowed to prove the deficiency against 
the estate. In re Moller et al., 8 Ben. 526; 17 Fed. Cas. 576; s. c, 14 
Blatchf. 207; 17 Fed. Cas. 579. 

The practice under the Act of 1867 was that a secured creditor should 
prove his debt as secured, and after selling the security by leave of the 
court, the balance, if any, would then be allowed as Indebtedness of the 
creditor against the general estate. In re Morrison, 10 N. B. R. 105; 17 
Fed. Cas. 831. 

It was held to be a sufficient compliance vrith the provisions of section 
19 of the Act of 1867 if a surety for the banki-upt paid the debt by giving 
his individual note, where the note was expressly accepted in payment. 
In re Morrell, 2 Saw. 356; 17 Fed. Cas. 781. 



Ceeditoks — Claims. 337 

An assignee In bankruptcy cannot require a creditor to surrender a 
policy of insurance on the life of a banlirviyt held as collateral security for 
a debt of such bankrupt. In re Newliu, 6 Ben. 342; 18 Fed. Oas. 91 (1873). 

The creditor in such case on proving the debt against the bankrupt is 
chargeable with the surrender value of the policy. Ibid. 

The wife of a bankrupt, her husband joining, had given a deed of trust 
on her property to secure a debt of her husband. Before the bankruptcy 
of the husband, the wife died leaving heirs. Held, that the claim could 
be proved against the estate as a secured debt and enforced against the 
property. In re Hartel, 7 N. B. R. 559; 11 Fed. Cas. 697. 

If the bankrupt gives his creditor security from his own property, the 
creditor cannot prove his debt without surrendering his security. But 
if security from a third person be transferred to the creditor, he may 
prove his debt without surrendering his security, and may enforce it 
against such third person, provided he does not thereby receive more than 
his claim. In re Babcock, 3 Stoi-y, 393; 2 Fed. Cas. 289 (1844). 

A warrant of attorney was given six months before the filing of a peti- 
tion in bankruptcy, but the judgment was entered only four months 
before. It was held that the execution, levy and sale under the judgment 
were a transfer and disposal of the property by the debtor; that the exe- 
cution creditor could not retain the proceeds of the sale, but might sur- 
render them and then prove up his debt in the court of bankruptcy, and 
after paying costs, share in the dividends. Hood v. Karper, 5 N, B. R. 
358; 12 Fed. Cas. 456. 

A creditor can prove the full amount of his claim against the joint estate 
of a firm in bankruptcy -svithout selling, surrenaering, or valuing security 
given by one of the partners upon his separate property. When, however, 
one partner gives such security to sureties to indemnify them for his 
separate debt, the separate creditor must procure the security to be ap- 
plied, and prove only the deficiency. In re Holbrook et al., 2 Low. 259; 
12 Fed. Cas. 317. 

A court in bankruptcy may order the sale of the bankrupt's property 
free and clear of all incumbrances, and in that case a secured creditor 
who has proved his claim will be paid out of the funds. Davis v. Ander- 
son et al., 6 N. B. R. 145; 7 Fed. Cas. 103. 

Where a mortgage given to secure a note inclosed by the bankrupt is 
not foreclosed, the holder can prove the debt without deducting the value 
of the mortgaged property. When, however, the mortgage has been fore- 
closed, the proof of the debt should be reduced by the amount of the pro- 
ceeds. In re Cram, 1 Hask. 89; 6 Fed Cas. 738. 

Where the fraud that vitiated a chattel mortgage given by the bank- 
rupt was constructive, and the mortgagee delivered the property to the 
assignee in bankruptcy, as soon as the court found that the mortgage was 
void under the law, and before judgment was entered, he was allowed to 
prove his debt. Burr v. Hopkins, 6 Biss. 34h; 4 Fed. Cas. 814. 

Prior to the commencement of proceedings, the bankrupts had given a 
deed of certain property to a trustee to secure a creditor. After the filing 



238 The Bankkuptct Law. 

of the petition in bankruptcy the trustee surrendered the property without 
action. Held, tliat the secured creditor might prove his debt. In re 
Caarke et al., 2 Hughes, 405; 5 Fed. Cas. 9S9. 

The bankrupt had given a mortgage to secure notes and indorsements 
given by the mortgagee for his accommodation. The security was in- 
sufficient Held, that the holder of the paper, after sharing pro rata in the 
proceeds of the mortgaged property, could prove against the estate the 
balance of their respective claims. Ex parte Dalby, 1 Low. 431; 6 Fed. 
Cas. 116. 

Where a mortgagee wishes leave to foreclose, he must prove his claim, 
and give due notice to an assignee of his application. In re Frizelle, 5 
N. B. R. 122; 9 Fed. Cas. 965. 

Answering the question who were secured creditors under the Act of 
1867, Judge Gresham said: " The secured creditors to vs^hom this excep- 
tion applies are those who are secured by the pledge in some form of prop- 
erty that, apart from their lien upon it, would go into the fund for general 
distribution. The language is general, to be sure, and construed strictly, 
and without reference to other provisions of the statute, might be made 
to embrace those creditors who have personal security. But the law 
makes provisions elsewhere for the protection of such sureties, allovring 
them to prove in full when they have paid the debt, and providing for the 
subrogation to the rights of the creditor if he shall have proved, and they 
aftervs^ard pay the debt. * * *■ it follows, of course, that a creditor 
having personal security votes upon composition proceedings as an unse- 
cured creditor." In re Spades et al., 6 Biss. 448; 22 Fed. Oas. 848. 

After adjudication and the election of an assignee, a mortgagee of the 
bankrupt, without leave of the court, or notice to the assignee, sold the 
mortgaged premises, and then sought to make proof of the balance of his 
debt. The proof was rejected. In re Miller, 19 N. B. E. 78; 17 Fed. Cas. 
297. 

Some of the property sold by the assignee in bankruptcy was covered 
by a chattel mortgage, and it did not bring enough to pay the mortgage 
debt. It was held that the deficiency could not be paid out of the general 
funds of the estate. In re Purcell et al., 2 Ben. 485; 20 Fed. Cas. 59. 

When a mortgagee of the bankrupts foreclosed, by leave of the court, 
he could not prove the deficiency as a claim against the estate except as 
provided In section 29 of the Act of 1867. In re Herrick, 7 N. B. R. 341; 
12 Fed. Cas. 43. 



Claimants Who Have Received Preferences. 

Held, that a creditor whose preferences had been set aside for construc- 
tive fraud, but who was guilty of no actual fraud, was not debarred from 
proving his debt. In i-e Cttdwell, 17 Fed. Rep. 693. 

A creditor unlawfully preferred may surrender his preference and prove 
his claim before, but not after, a decree declaring such preference void. 
In re Graves, 9 Fed. Rep. 816. 



Ceeditoes — Claims. 239 

Surrender of a fraudulent preference can only be made to the assignee; 
the preferred creditor, therefore, must be denied the right to vote for 
assignee. In re Parham, 17 N. B. R. 300; 18 Fed. Gas. 109i (1878). 

The payment of a judgment recovered by an assignee, in bankruptcy 
for property transferred in violation of the Act did not authorize the cred- 
itor to prove his claim under section 23 of the Act of 1867. In re Richter's 
Estate, 1 Dill. 544; 20 Fed. Gas. 748. 

A creditor who had received a preference from the bankrupt surren- 
dered It to the assignee without suit. It was held under section 23 of the 
Act of 1867 that he could prove his debt In re Montgomery, 3 Ben. 565; 
17 Fed. Gas. 619. 

The right of a preferred creditor to surrender the property and prove 
his debt continues until a recovery is had against him by judgment or 
decree, and Is not barred by the commencement of a suit. In re Klpp, 4 
N. B. R. 593; 14 Fed. Gas. 653. 

Under the Act of 1867 a creditor who had received a fraudulent pref- 
erence could only prove his debt by surrendering to the assignee any 
money or property that he received before he was sued for the same. In 
re Drummond, 4 Biss. 149; 7 Fed. Oas. 1110. 

A creditor Is concluded by the determination in bankruptcy. In a pro- 
ceeding to which he was a party, that he had received a fraudulent pref- 
erence and was disqualified to prove his debt under the Act of 1867, and 
cannot reopen the question for further examination. In re Leland et al., 
14 Blatchf. 240; 15 Fed. Oas. 296. 

An unsuccessful attempt to gain a preference was held not to bring a 
creditor within the penalties of the Act of 1867. In re Bonsfield & Poole 
M. Co., 16 N, B. R. 489; 3 Fed. Gas. 1013. 

The levy upon the bankrupt's goods was set aside as a preference. Held, 
that the creditor was not thereby prevented from proving his debt against 
the bankrupt, and that an indorser of a bankrupt's note was not released 
from his liability on account of the levy being set aside. Streeter v. Jef- 
ferson Go. Bank, 147 V. S. 86. 

A firm made an assignment to H. without preferences, but in fraud of 
the Bankrupt Act of 1867. H. accepted the trust. Proceedings In bank- 
ruptcy having been commenced against the firm that made the assign- 
ment. It was held that he could prove his claim against the firm. In re 
Horton, 5 Ben. 562; 12 Fed. Gas. 536. 

Collection by a creditor of a draft of the bankrupt mailed (without intent 
to prefer) before, but received after, the proceedings in bankruptcy were 
known by the creditor to have commenced, does not compel the creditor to 
return the amount of the draft before making proof of debt under the Act 
of 1867. In re Baxter", 25 Fed. Rep. 700. 

A creditor who receives a preference, having reason to believe that the 
debtor is insolvent, .cannot prove his debt, and this is true notwithstand- 
ing he intended to prevent the waste of the bankrupt's effects, and secure 
their distribution among all the creditors pro rata. In re Walton et al., 
Deady, 598; 29 Fed. Oas. 128. 



240 The Bankeuptct Law. 

It appearing that a creditor who had obtained a judgment by confession 
against the bankrupt had knowledge of the latter' s insolvency at the time, 
the court suspended the proof of his claim until after the election of an 
assignee. In re Walton et al., Deady, 442; 29 Fed. Cas. 125. 

A preferred creditor who has made a full surrender of his preference 
before suit has been brought against him may prove his claim, but after 
the commencement of suit, and before recovery, it is discretionary with 
the court. After recovery, he cannot prove his claim. In re Stephens, 
3 Biss. 187; 2 Fed. Oas. 1275. 

Less than four months before the filing of their petition, the bankrupts 
had given a chattel mortgage, and subsequently the mortgaged property 
was sold and bid in by the mortgagees, and the proceeds applied upon 
their debts. The assignee in bankruptcy brought an action and recovered 
a judgment against them, which was paid in full. Held, that the payment 
of the judgment was not such a surrender of the preference as to enable 
the mortgagees to prove their claims against the bankrupts' estate. In 
re Tonkins et al., 4 N. B. R. 52; 24- Fed. Oas. 48. 

The assignee had brought suit against certain creditors to recover a 
preference received by them. After proofs had been taken before a special 
examiner, they delivered to the assignee the amount received by them 
from the bankrupt, and paid the costs of the suit, which the assignee ac- 
cepted. It was held that they could thereupon prove their debt. In re 
Riorden, 14 N. B. R. 332; 20 Fed. Oas. 820. 

A party purchased property fraudulently conveyed by the bankrupt, and 
was compelled to surrender it, after a long litigation, to the assignee. 
The court held that he had no claim either for improvements upon the 
premises, or for the reduction of incumbrances. In re Mead, 19 N, B. R. 
81; 16 Fed. Cas. 1277. 

The court disallowed the proof of a claim where the claimants had 
taken a mortgage to secure It less than four months before the adjudication. 
Phelps V. Sterns, 4 N. B. R. 34; 19 Fed. Cas. 465. 

Under the Act of 1867 a creditor who had secured a preference by chattel 
mortgage could not prove his debt upon relinquishing the mortgage. In 
re Princeton, 2 Biss. 116; 19 Fed. Cas. 1314. 

The provision in section 39 of the Act of 1867 respecting cases in which 
creditors will not be allowed to prove their claims applied only to cases 
where the assignee was compelled to sue for the recovery of property 
illegally transferred, and not where the preferred creditor made a vol- 
untary surrender. In re Reece et al., 2 Bond, 359; 19 Fed. Cas. 402. 

An assignee in bankruptcy recovered a judgment against a preferred 
creditor for the value paid in such preference. The creditor, having paid 
such judgment, offered to prove the same against the bankrupt. The 
question being referred to the court, Blodgett, district judge, held that 
there being no actual fraud, and the preference being only constructively 
fraudulent, the creditor had the right to prove his claim. In re New- 
comer, 18 Fed. Oas. 48. 



Ceeditohs — Claims. Ml 

The debt of the petitioning creditors had been merged into a judgment 
under circumstances amounting to a preference. It was held that being 
in judgment, it was not a provable debt, and the petition could not be 
sustained, but that the creditors might surrender their preference and 
then petition would be entertained. In re Hunt et al., 5 N. B. K. 433; 12 
Fed. Gas. 900. 

Certain creditors of the bankrupt held bonds secured by mortgage. Upon 
proceedings in bankruptcy being commenced, the trustees named in the 
mortgage surrendered possession of the property to the assignee, but with- 
out prejudice to the lien of the mortgage on the proceeds of the sale of 
the property. After the mortgage had been decided to be void as a fraud- 
ulent preference, certain bondholders applied for leave to surrender their 
bonds and prove their debts. Held, that it was too late for the creditors 
to surrender their preferences, and that under the Act of 1867 they could 
not prove their debts. In re Lelaud et al., 7 Ben. 156; 15 Fed. Gas. 280. 

A creditor preferred as to certain debts should be allowed to prove other 
debts not preferred. In re Arnold, 2 N. B. B. 160; 1 Fed. Oas. 1063. 

Under the Act of 1867 a creditor having two separate claims, on one of 
which he had received a preference, might nevertheless prove the other. 
In re Lee, 14 N. B. R. 89; 15 Fed. Gas. 135. 

When a creditor has two or more claims against the bankrupt, and 
receives a preference on one only, he may prove the others; but this 
principle does not apply to a running account for merchandise. In re 
Richter's Estate, 1 Dill. 544; 20 Fed. Oas. 748. 

Where a creditor's claim consists of disconnected debts, and he has 
received a preference as to all of them, he must surrender all that he has 
received before he can prove any portion of his debt. If the preference 
is only as to some of the debts, he may prove the others without surren- 
der.* In re Holland, 8 N. B. R. 190; 12 Fed. Gas. 337. 

A creditor holding ten notes received payments under circumstances 
that amounted to a preference, and indorsed them on tliree notes. It 
was held, under the Act of 1867, that this prevented him from proving 
any of the notes. In re Kingsbury et al., 3 N. B. B. 317; 14 Fed. Gas. 582. 

After the assignee has recovered property from a preferred creditor 
by proceedings for that purpose, the latter cannot prove his debt. In re 
Stein, 16 N. B. R. 569; 22 Fed. Oas. 1232. 

I The assignee in bankruptcy proceeded against a creditor who had re- 
ceived an unlawful preference, and secured a decree setting aside the 
conveyance. It was held, under the Act of 1867, that the creditor, having 
made himself a party to the fraud, could not prove his claim against the 
estate of the bankrupt. In re Oramer, 13 N. B. R. 225; 6 Fed. Oas. 742. 

Under section 39 of the Act of 1867 (section 5021, R. S.), it was held that 
a creditor who obtained a fraudulent preference in the form of a chattel 
mortgage loses his lien, and cannot prove his claim in bankruptcy. In re 
Bingham v. Richmond, 6 N. B. R. 127; 3 Fed. Oas. 405. 

16 



. 243 The Bankkuptct Law, 

Objections to Claims, Etc. 

Objection to a claim must be in writing, and must specify, with reason- 
able certainty and brevity, the grounds relied upon. In re Walton et al., 
Deady, 442; 29 Fed. Gas. 125. 

After the assignee and a creditor had separately applied to the circuit 
court for a review of an order allowing a claim, both of which petitions 
were dismissed, the assignee applied for a rehearing on the claim in the 
district court The court denied the motion. In re Troy Woolen Co., 5 
Ben. 413; 24 Fed. Cas. 241. 

The assignee filed a bill for a re-examination of a claim of a creditor. 
The claimant having offered himself for examination, it was held to be the 
duty of the assignee to introduce such opposing evidence as he might have. 
In re Koblnson, 8 Ben. 406; 20 Fed. Oas. 978. 

Creditors may contest a judgment debt offered for proof in competition 
with their own and show that such judgment is void or voidable for fraud 
or Irregularity. In the absence of such fraud or irregularity, the judgment 
debt will not be disallowed because of an excessive assessment of 
damages. Ex parte O'Nell, In re Fowler, 1 N. B. R. 677; 18 Fed. Cas. 
714 (1867). 

The assignee is the proper person to object to the proof of a claim, unless 
the court otherwise directs under peculiar circumstances. In re Randall 
et al.. 1 Saw. 56; 20 Fed. Oas. 226. 

An order of the district court rejecting a claim could not be reviewed 
except upon a compliance with sections 8 and 84 of the Act of 1867 and 
rule 26. In re Place et al., 8 Blatchf. 302; 9 id. 369; 19 Fed. Cas. 790- 
791. 

A reference had been made to take proof of a claim. Before any evi- 
dence was taken, it appeared that the creditor had proved his claim before 
the register. The court vacated the order of reference, and left the parties 
to pay each his own costs and expenses. In re Baldwin, 6 Ben. 196; 2 
Fed. Oas. 507. 

The consent of the assignee was held not to be necessary to enable one 
creditor to oppose the claim of another, or to take the question to the cir- 
cuit court for review, when his objection was overruled. In re Joseph, 2 
Woods, 390; 13 Fed. Cas. 1124. 

An assignee represents both the bankrupt and his creditors, and' has a 
stronger right than the former Inasmuch as he can contest claims that 
the bankrupt could not contest. In re Gerney, 7 Biss. 414; 11 Fed. Cas. 121. 

An attorney who has acted as counsel for the bankrupt is not excluded 
from appearing as counsel for a creditor whose claim is under re-examlua- 
tlon. In re Morgan, 8 Ben. 232; 17 Fed. Car 746. 

Where the creditor of a corporation had proved his claim in bankruptcy 
and received a dividend, it was held that he did not thereby waive his 
right of action for the balance of his claim. New Lamp Chimney Co. v. 
Ansonla B. & O. Co., 91 U. ,S. 656. 

It is competent for the bankrupt himself to move for the expunging of 
the proof of a debt. In re McDonald, 14 N. B. R, 477; 16 Fed. Cas. 36. 



Ckeditoes — Claims. 243 

It was held, under the Act of 1867, that In a proper case the district 
court would expunge the proof of a debt for causes that had arisen after 
the proof was made. In re Loring, Holmes, 483; 15 Fed Cas. 895. 

One year after the debtor had been decreed a bankrupt, and four months 
after a dividend had been declared, a motion was made to expunge the 
proof of a claim for the reason that it was barred by the statute of limi- 
tations. The court said that as the matter was within his discretion, and 
as the validity of the claim was not denied, he would not allow the motion. 
In re Alden, 1 Fed. Cas. 327 (1844). 

After the proof of a claim founded upon a judgment, the judgment was 
set aside by the court in which it was entered. The court of bankruptcy 
thereupon ordered the proof to be expunged. In re Bruce, 6 Ben. 515; 4 
Fed. Cas. 466. 

An order expunging the proof of a claim is not an adjudication that will 
bar the creditor from pleading it as a set-ofC in an action brought against 
him by the assignee. Catlin v. Foster, 1 -Saw. 37; 5 Fed. Cas. 303. 

Under the Act of 1867 (section 5081, R. S.) a claim in bankruptcy could 
be re-examined and expunged upon the application of the bankrupt, al- 
though no provision was made therefor under the bankruptcy rules. In 
re Pease, 29 Fed. Rep. 503. 

A bankrupt is not concluded from applying to expunge a claim, proven 
as an open account, because he included it in his schedule as a claim evi- 
denced by vote. Ibid. 

The acquiescence of the debtor in the sale of pledged stock will bind 
his assignee In bankruptcy without respect to the price realized, if made 
before the commencement of proceedings; but not otherwise. Sparhawk 
et al. V. Drexel et al., 12 N. B. R. 450; 22 Fed. Cas. 860. 

A mortgagee who purchased the mortgaged premises on a sale by the 
assignee was charged with the costs and expenses of the sale, notwith- 
standing he had offered to take the mortgaged property in satisfaction 
of his debt, which the assignee in bankruptcy refused to consent to, and 
the property was finally sold for less than the amount due. In re Eller- 
horst et al., 2 Saw. 219; 8 Fed. Oas. 520. 

The failure of an assignee to object to a suit for the foreclosure of a 
mortgage, which was pending at the time of the filing of the petition, 
signifies his assent to that method of ascertaining the value of the prop- 
erty subject to the mortgage, and he cannot object to a proof of deficiency 
after the sale. In re Stansfield, 4 Saw. 334; 22 Fed. Oas. 1061. 

It is not necessary that a power of attorney authorizing a person to 
appear for a creditor in bankruptcy proceedings should be acknowledged. 
In re Powell, 2 N. B. R. 45; 19 Fed. Cas. 1211. 

Where a claimant causes delay and expense by misleading the assignee 
In the proof of his debt, he will not be allowed costs. In re De Metz, 
7 Fed. Oas. 451. 

The assignee's solicitor was held to be competent to act as attorney for 
creditors In bankruptcy proceedings under the Act of 1867 after the 
twenty-seventh rule had been vacated. In re Levy et al., 1 N. B. Ri 184; 
15 Fed. Oas. 433. 



24.4: The Bankhuptcy Law. 

Notices. 

§ 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 writ- 
ing, of 

(1.) All examinations of the bankrupt; 

(3.) All hearings upon applications for the confirmation of compo- 
sitions or the discharge of bankrupts; 

(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, and 

(8.) The proposed dismissal of the proceedings. 

(b.) Notice to creditors of the first meeting shall be published at 
least once and may be publishe'd such number of additional times as 
the court may "direct; the last publication shall be at least one week 
prior to the date fixed for the meeting. Other notices may be pub- 
lished as the court shall direct. 

(c.) All notices shall be given by the referee, unless otherwise or- 
dered by the Judge. 

Where the name of the bankrupt was Wm. D. Hill and the notice to 
creditors read " Wm. B. Hill " the variance was held not to be material. 
In re Hill, 1 Ben. 321; 12 Fed. Oas. 144. 

A notice to creditors addressed " Levley, N. Y.," was not a notice to 
Lawrence J. Levley who resided in that city. In re Archenbrown, 11 n! 
B. B. 149; 1 Fed. Oas. 1084. 

When the notice of a meeting of creditors is addressed to a creditor by 
the wrong name, he is not bound by the proceedings of such meeting. 
Anon., 1 N. B. R. 122; 1 Fed. Oas. 1012. 

A sale of Incumbered property without notice to the lien creditors was 
held to be void under the Act of 1867. Ex parte Drewi-y, 2 Hughes, 435; 
7 Fed. Gas. 1074. 

The publication of a notice to creditors under rules 5 and 21 in pursuance 
of the Act of 1867 is considered in the case cited. In re Robinson 1 Ben. 
270; 20 Fed. Gas. 973. 

Where a notice of a meeting of creditors was duly published and mailed, 
the regularity of the proceedings is not affected by the failure of a cred- 
itor to receive it In re Stetson, 4 Ben. 147; 22 Fed. Gas. 1316. 



Ceeditoes — Notices. 245 

Where creditors failecl to receive tlieir notice in time to attend, and 
their presence might have changed the result i-r tire vote, the meeting 
may be reopened upon a prompt application. In re Spencer, IS N. B. R. 
199; 22 Fed. Cas. 914. 

Where schedules are amended hy the addition of the names of new 
creditors, a new warrant should issue to be served on such creditors, and 
they should receive notice containing the names of all the creditors. Ill 
re Perry, 1 N. B. R. 220; 19 Fed. Cas. 2a3. 

The court of bankruptcy will set aside an order made without notice 
approving a schedule of exempt property, or confirming a report of sales, 
made on the day that the same were filed. In re Peabady, 16 N. B. R. 
24a; 19 Fed. Cas. 35. 

Under section 27 of the Act of 1867, notice of the second meeting of 
creditors was required to be sent to the creditors without respect to 
whether they had proved their debts. Thereupon the whole fund in the 
hands of the assignee could be distributed, in the absence of sufiicient 
objections to such action. In re Mills, 7 Ben. 452; 17 Fed. Cas. 393. 

If there are no assets, and no debts have been proved when the bank- 
rupt applies for his discharge, the assignee must nevertheless give notice. 
Anon., 1 N. B. R. 122; 1 Fed. Oas. 1012. 

Held, under section 17 of the amendment of 1874, that upon an applica- 
tion to set aside a composition, notice should be given to all creditors as 
well as the debtor. Ex parte Hamlin, 2 Low. 571; 11 Fed. Cas. 367. 

The proof of a debt had been lost. It was held that the creditor was 
nevertheless entitled to a notice of the application for a discharge, and 
that the discharge must be refused until the proof is supplied and the 
notice given. In re Freidlob, 19 N. B. R. 122; 9 Fed. Cas. 817. 

The marshal's return of service of notice to creditors is not conclusive, 
nor is the register's certificate as to the correctness of the inventory. In 
re Hill, 1 Ben. 321; 12 Fed. Cas. 144. 

The return of the marshal to the warrant certified that he had " sent 
written or printed notices to the creditors named on the schedules, and 
herewith returned, which schedules were made up by him on the best 
information he could obtain in respect thereto, after diligent search." 
Held sufiicient. In re Adams, 5 Ben. 544; 1 Fed. Cas. 82. 

The certificate of the clerk of the court that the copies of a notice 
" were duly mailed to each creditor " was held to be sufiicient evidence 
of the fact stated. In re Townsend, 2 Ben. 62; 24 Fed. Cas. 102. 

A failure to publish the notice of a meeting of creditors in one of the 
designated papers, and an omission in the warrants of the names, resi- 
dences and amounts of the debts of creditors, was held to be sufficient 
ground for setting aside the proceedings. In re Hall, 2 N. B. R. 192; 11 
Fed. Cas. 201. 

In the absence of fraud, all parties are chargeable with notice of the 
t)roceedings in bankruptcy. Barron v. Newberry, 1 Blss. 149; 2 Fed. 
Cas. 937. 

The supreme court held, under the circumstances of the case, that notice 



246 The Bakkhuptcy Law. 

of proceedings in composition was notice of the original proceeding. 
Liebke v. Thomas, 116 U. S. 605. 

The policy-holders of a life insurance company were, by its charter, 
entitled to vote for trustees, and to share in the profits. Proceedings in 
banliruptcy were set aside because the policyholders were not notified of 
the meeting of creditors. In re Atlantic M. L. I. Co., 9 Ben. 270; 2 Fed. 
Cas. 168. 

Petitions. 

§ 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 securi- 
ties 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. 

(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 bank- 
rupt are less than twelve in number, and less than three creditors have 
joined as 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 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 oppor- 
tunity to be heard; if upon such hearing it shall appear that a sufiieient 
number have joined in such petition, or if prior to or during such 
hearing a sufficient number shall join therein, the case may be pro- 
ceeded with, but otherwise it shall be dismissed. 

(e.) In computing the number of creditors of a banlcrupt 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 determined 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 opposition to the prayer of the petition. 



Ceeditoks — Petitions. 247 

(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. 

The statement in a petition that there was due to the petitioners the 
sum of $500 and upward was held to be suflacient under the Act of 1841. 
Ex parte Shouse, Crabbe, 482; 22 Fed. Cas. 27 (1842). 

The petitioning creditor was the purchaser of a note which had been 
delivered by the debtors to the payee after it was due, and after the 
alleged acts of bankruptcy. It was held to be sufficient to support the 
petition. Ibid. 

Where the petition sets forth the nature of the petitioner's debt, and 
avers that it is provable, the question then becomes one of law, and not 
of fact. Sigsby v. Willis, 3 Ben. 371; 22 Fed. Cas. 112. 

An equitable demand was held to be sufficient to support a petition in 
involuntary bankrutcy under the Act of 1867. Ibid. 

Two of the petitioning creditors were indorsers of notes given by the 
bankrupt. It was held that they were not creditors at the time of the 
filing of the petition, notwithstanding the notes had been dishonored. 
Inasmuch as the holders had the first right to prove. In re Biker, 18 N. 
B. R. 393; 20 Fed. Cas. 795. 

One of the petitioning creditors on a petition filed on the 19th of July 
declared on a note for $250 which fell due on the 23d of July. The court 
held that it was not a claim for $250, but for that sum less a rebate of 
four days' interest. Ibid. 

Where the original petition is void for want of proper petitioners, it 
cannot be sustained by intervening petitions. Robinson et al. v. Hanway, 
19 N. B. R. 289; 20 Fed. Oas. 1012. 

Where the petitioning creditor was a bank, it was held that the presi- 
dent must have special authority to sign and verify the petition. Roche 
et al. V. Fox, 16 N. B. B. 461; 20 Fed. Cas. 1065. 

A private bank, which was a partnership, was held to be incompetent 
to maintain a petition in Involuntary proceedings against one of the 
members of the firm. Robinson et al. v. Hanway, 19 N, B. R. 289; 20 Fed. 
Oas. 1012. 

The prosecution of an action by a creditor for the recovery of his debt 
is not a bar as to proceedings against the debtor in bankruptcy. In re 
Henderson, 9 Fed. Rep. 196. 

Where an indorser's liability becomes fixed, such liability constitutes a 
debt due and payable from the Indorser, which may be made the founda- 
tion of involuntary, as well as voluntary, proceedings. In re Nickodemus 
2 Chi. Leg. News, 49; 18 Fed. Cas. 222. 

A petition in bankruptcy may be supported by a debt secured in whole 
or in part In re Stansell, 6 N. B. R. 183; 22 Fed. Cas. 1059. 

A creditor whose debt is not yet due may maintain thereon a petition 
In bankruptcy. In re Ouimette, 3 N. B. R. 566; 18 Fed. Oas. 913 (1870). 



248 The Bankhcptcy Law. 

A debtor had made an assi|nmeiit for the benefit of his creditors, and 
certain creditors had agreed to assent if he would change the assignee. 
Held, that they were not estopped from filing a petition in involuntary 
bankruptcy. Spicer et al. v. Ward et al., 3 N. B. R. 512; 22 Fed. Cas. 931. 

It is not illegal for a debtor to solicit creditors to sign a petition for 
proceedings against him in involuntary bankruptcy. In re Bouton, 5 
Saw. 427; 3 Fed. Cas. 1019. 

A petition by a creditor in involuntary proceedings who has previously 
secured his claim by attachment will not be sustained. In re Hazenes, 
4 Dill. 549; 11 Fed. Cas. 941. 

A creditor whose claim is provable under the Act can file a petition in 
involuntary bankruptcy, notwithstanding his claim is not due. Linn et al. 
V. Smith, 4 N. B. R. 46; 15 Fed. Cas. 563. 

The holder of a note not yet due may file a petition in Involuntary 
bankruptcy. In re Alexander, 1 Low. 470; 1 Fed. Cas. 351. 

The fact that the petitioner was the only creditor of the alleged bank- 
rupt is no reason for the dismissal of the petition. Ibid. 

Under the Act of 1S07 it was held that a secured creditor might file a 
petition if his security fell short by ?2o0 or more of the amount of his 
claim. Ibid. 

When the bankrupt has counterclaims against the petitioning creditor 
in excess of such creditor's claim, the petition will be dismissed. In re 
Osage Valley y. S. K. R. Co., 9 N, B. R. 281; 18 Fed. Gas. 841. 

A petitioner in involuntary bankruptcy set up a preference to himself 
as the act of bankruptcy on which an adjudication was asked. The court 
held that he could not maintain the proceedings without surrendering the 
preference. In re Rado, G Biss. 230; 20 Fed. Cas. 153. 

The petitioning creditors had signed an agreement to give the debtors 
an extension, which was conditional on its receiving the signatures of all 
the creditors. Subsequently, other creditors attached the property of the 
debtors. It was held that the petitioning creditors were qualified to file 
a petition in involuntary proceedings. Ex parte Potts et al., Ctabbe, 469; 
19 Fed. Cas. 1199 (1842). 

As a general rule, the oath of the petitioning creditor is accepted as 
sufficient proof of his right to institute proceedings; but it may be over- 
come by evidence disproving his claim." Ex parte Foster, 5 Law Rep. 406; 

9 Fed. Cas. 507 (1842). 

The debt of the petitioning creditor will not be inquired into as long 
as the adjudication of bankruptcy stands unrevoked. In re Fallon, 2 N. 
B. R. 277; 8 Fed. Cas. 977. 

One petition by a bankrupt does not bar a second petition where it 
appears that the second is based upon debts contracted subsequently to 
the time when the proceedings under the first were closed. In re Drisco, 
14 N. B. R. 541; 2 Low. 430; 7 Fed. Cas. 1092, 1104. 

A petitioner in voluntary proceedings could not proceed in forma 
pauperis under the Act of 1841, but was bound to pay the expenses in- 
cident to the prosecution of his petition. In re Greaves, 5 Law Rep. 25; 

10 Fed. Cas. 1067 (1842). 



Creditoes — Petitions. 349 

A petition was dismissed under the Act hi 1841 because the petitioner 
owed debts that had been contracted in a fiduciary capacity, notwith- 
standing he owed other debts not so contracted. In re Cease, 5 Law Kep. 
408; 5 Fed. Cas. 388 ^812). 

Under the Act of 1841, the court allowed a voluntary petition to be 
filed after the filing of a petition in Involuntary bankruptcy. In re Can- 
field, 5 Law Rep. 415; 5 Fed. Cas. 8 (1843). 

A debtor had made an assignment under the insolvent law of his state, 
and a creditor had thereafter applied to have the bond of the assignee 
increased. Held, that this did not estop him from filing a petition iri 
bankruptcy based on the assignment. Perry v. Langley, 1 N. B. R. 599; 
19 Fed. Cas. 280. 

When the claim of the petitioning creditor is barred by the statute of 
limitations of the domicile, the petition will be dismissed. In re Corn- 
wall, 9 Blatchf. 114; 6 Fed. Cas. 586. 

A note was given without consideration, and lost while in the posses- 
sion of the promisee, and thereupon another note was given to replace it. 
Held, that It was not a sufllcient claim to entitle the holder to commence 
proceedings in bankruptcy against the maker. In re Cornwall, 4 N. B. R. 
400; 6 Fed. Cas. 595. 

A contract between the petitioners and the alleged bankrupt was such 
that the former was to buy cotton for future delivery, and settle, not by 
the delivery of the cotton, but by paying or receiving the difference in 
price. Held, that a note given by the bankrupt tQ pay losses incurred on 
such a contract was valid, and would support a petition in Involuntary 
bankruptcy. Lehman et al. v. Strassberger, 2 Woods, 554; 15 Fed. Cas. 
254. 

It was held to be sufficient, under the Act of 1867, that the debt of the 
petitioning creditor existed when the alleged act of bankruptcy was com- 
mitted, although It was not then due. The court further expressed the 
opinion that the law should be construed against the right of a creditor 
to maintain a petition who had become a creditor after the commission 
of the alleged act of bankruptcy. In re MuUer et al., Deady, 513; 17 Fed. 
Oas. 971. 

The court refused an application of a petitioner in involuntary bank- 
ruptcy to file an amended petition, setting forth a note indorsed by the 
bankrupt which had not matured when the original petition was filed. 
In re Morse, 17 Blatchf. 72; 17 Fed. Oas. 846. 

Petitions in bankruptcy proceedings are treated as the joint act of all 
the petitioners, and those who had no actual knowledge of any falsehood 
which they contained are responsible until their innocence clearly appears. 
In re Keller et al., 18 N. B. R. 10; 14 Fed. Cas. 210. 

One creditor was Induced by the fraudulent representations of another 
to release his debt, and in consequence of such a release the latter secured 
a preference. Held, that the former was not disqualified by the release, 
under the circumstances, from filing a petition against the debtor. 
Michaels v. Post, 21 Wall. 398. 



250 The Bankbuptct Law. 

A creditor could file a petitioti in involuntary bankruptcy under the Act 
of 1841 upon a debt not yet due, but which was certain and liquidated. 
In re King, 1 N. Y. Leg. Obs. 276; 14 Fed. Cas. 509. 

The petitioning creditor was a city, and it had received part of its claim 
from sureties on the bond of the bankrupt. The petition was entertained, 
and an adjudication had, after the city had paid into the registry of the 
court the money so received. In re Marcer, 6 N. B. B. 351; 16 Fed. Cas. 
699. 

Under the laws of Michigan a suit will not be maintained in the state 
courts for a debt on account of sales of intoxicating liquor. A bankrupt 
against whom adjudication had been entered by default, moved to set 
aside his default on the ground that the claim of the petitioning creditor 
was of the character mentioned. The motion was disallowed. In re 
Neilson, 7 N. B. R. 505; 17 Fed. Oas. 1301. 

The by-laws of a corporation authorized the stockholders present at any 
meeting to elect a director to cast the votes of absentees. A resolution 
that the corporation go into bankruptcy was adopted by such a vote, only 
a small number of stockholders being present. Eight months afterward, 
a stockholder, who was also a director, and against whom a suit for neg- 
ligence in the latter capacity had been commenced, and who was not 
present at the meeting, filed a petition for the dismissal of the proceedings. 
The petition was denied. In re Collateral L. & S. Bank, 5 Saw. 331; 6 
Fed. Cas. 100. 

A petition that failed to state that the petitioner constituted one-fourcn 
of the number of creditors, and that his debts amounted to one-third of 
the debts provable, was not cured by a paper filed at the same time, 
signed by the debtor, admitting that the required number and amount of 
his creditors had joined in the petition, and consenting that the proceedings 
be had. In re Keeler, 10 N. B. R. 419; 14 Fed. Cas. 176. 

A petition in involuntary bankruptcy should describe the petitioners' 
debts so far as to enable the court to determine whether they are provable. 
When a preference is alleged as an act of bankruptcy, the name of tlie 
person preferred should be given. It need not be stated that it was In 
fraud of the Bankrupt Act. In re Hadley, 12 N. B. R. 366; 11 Fed. Cas. 
148. 

It was held to be sufficient under the amendment of 1874 for a petition 
in involuntary bankruptcy to state upon belief that the required number 
of creditors had signed. In re Mann, 13 Blatchf. 401; 16 Fed. Cas. 634. 

Partnership debts should be considered on a petition against the in- 
dividual bankrupt in determining whether the required number of cred- 
itors have signed. In re Price, 3 Dill. 514, n.; 19 Fed. Cas. 1312. 

In determining whether the required number of creditors had joined in 
a petition in involuntary bankruptcy, it was held, under the Act of 1807, 
that a creditor who had once joined could not withdraw. In re Phila- 
delphia Axle Works, 19 Fed. Cas. 494. 

Held, under the Act of 1867, that debts less than $250 are to be taken 
Into account in determining whether the required number of creditors had 



Ckeditoes — Petitions. 251 

united In a petition in involuntary bankruptcy. In re McAdam, 4 Saw. 
119; 15 Fed. Cas. 1201. 

Where the petition contains an averment that the number and amount 
of creditors signing are sufiiclent, the fact cannot be re-examined after 
adjudication, unless fraud is alleged, either by the court of bankruptcy, 
or in any collateral proceeding. In re Duncan et al., 8 Ben. 365'; 8 Fed. 
Cas. 1. 

The question being whether the required number and amount of cred- 
itors had joined in the petition, the court held that a creditor who was 
amply secured, and did not waive his security, should not be considered 
in the computation. In re Orossette, 17 N. B. R. 208; 6 Fed. Cas. 894. 

Creditors claiming liens, or having security, could not be taken into 
account in determining whether the required number had joined in the 
petition under the Act of 1867 as amended in 1874. In re Frost, 6 Biss. 
213; 9 Fed. Cas. 965. 

After an adjudication in involuntary bankruptcy had been made by 
default, the bankrupts asked that the default be opened, and that they be 
allowed to answer on the ground that the required number of petitioners, 
had not signed. Upon a reference, this allegation was found to be untrue, 
and the motion to set aside the proceedings was denied. In re Le Favour, 
8 Ben. 43; 15 Fed. Cas. 244. 

In determining whether the required number of petitioners had united 
in a petition against a separate partner, creditors of the firm must be 
included in the computation. In re Lloyd, 15 N. B. R. 257; 15 Fed. Cas. 
711. 

Justice Bradley held that the Act of 1867 did not require that in an 
adjudication the court should pass formally upon the question whether 
the required number and amount of creditors had united in a petition. 
Lastrapes et al. v. Blanc et al., 3 Woods, 134; 14 Fed. Cas. 1164. 

Creditors having security are not to be considered in determining 
whether a sufficient number have signed an involuntary petition. In re 
Green Pond R. Co., 13 N. B. R. 118; 10 Fed. Cas. 1178. 

An adjudication in bankruptcy is a judgment that the required number 
and amount of creditors have joined in the petition, and the question will 
not be reopened unless fraud or imposition is shown. In re Funkenstein, 
3 Saw. 605; 9 Fed. Cas. 1005. 

In determining whether the petitioners are sufficient in number and 
amount, attaching creditors cannot be taken into account. In re Jewett, 
7 Biss. 242; 13 Fed. Cas. 584. 

In proceedings of Involuntary bankruptcy an allegation in the petition 
that the required number of creditors have signed is not jurisdictional, 
and may be amended during proceedings for a composition. Ex parte 
Jewett, 2 Low. 393; 13 Fed. Cas. 580.' 

Creditors who have been fraudulently preferred are not to be counted 
in determining whether a sufficient number had joined in a petition. In re 
Israel, 3 Dill. 511; 13 Fed. Cas. 175. 

Under the amendment of 1874, a denial that a sufficient number of cred- 



253 The Bankkuptcy Law. 

Itors had joined in tlie petition should he verified- by the oath of the 
alleged bankrupt. The question should then be determined by a refer- 
ence, and the affirmative of the allegation is with the petitioning creditor. 
The debtor must attend and submit to an examination If desired by the 
creditors. In re Hines, 7 Ben. 427; 12 Fed. Cas. 1136. 

For the purpose of determining whether the required number of peti- 
tioners have signed, and whether secured creditors have provable debts, 
the court may inquire into the value of securities in the hands of cred- 
itors. In re California P. R. Co., 3 Saw. 240; 4 Fed. Cas. 1061. 

A suggestion that a sufficient number of creditors have not joined in a 
petition of involuntary bankruptcy will be entertained though it comes 
from a creditor who is charged with having received a fraudulent prefer- 
ence. Clinton et al. v. Mayo, 12 N. B. R. 39; 5 Fed. Cas. 1057. 

In determining the sufficiency of the signers to a petition, secured debts 
and debts barred by the statute of limitations should not be included. 
In the case of debts partly secured, the amount of the security must be 
deducted, and so with the offsets. In re Bouton, 5 Saw. 427; 3 Fed. Cas. 
1019. 

The claim of a creditor who has received a fraudulent preference will 
be left out of the computation In determining whether the required num- 
ber of creditors had joined in the petition. Clinton et al. v. Mayo, 12 N. 
B. R. 39; 5 Fed. Gas. 1057. 

Where a question arises whether a sufficiency of creditors have joined 
in the petition, the better practice is to refer the matter to a register or 
United States commissioner to examine the proofs and to report thereon. 
In re Sargent, 13 N. B. R. 144; 21 Fed. Cas. 495 (187^. 

The petition in bankruptcy must affirmatively show that the requisite 
number of creditors in number and amount have united therein. The 
bankrupt law is a stringent j^rovislon for taking a man's business for his 
creditors. If creditors wish to do this, they must do it on the terms of the 
bankrupt law. In re Scammon, 6 Chi. Leg. News, 328; 21 Fed. Oas. 617 
(1874); 6 Biss. 145; 21 Fed. Ga.s. C20 (1874); id. 622 (1874). 

Attaching creditors were held to be on the same footing with other 
secured or preferred creditors, and not entitled to participate in the pro- 
ceedings until an assignee is elected, nor to be included In the computation 
of the number and amount required to be represented In the petition. In 
re ScrafCord, 4 Dill. 376; 21 Fed. Oas. 866 (1877). 

It is strictly a jurisdictional question whether the required number of 
creditors have joined in the petition. In re Henderson, 9 Fed. Rep. 196. 

It is made the duty of the court to investigate and find whether a suffi- 
cient number of creditors have joined. An allegation in the petition that 
such is the case, though admitted by the debtor, is not sufficient. In re 
Scammon, 6 Chi. Leg. News, 328; 21 Fed. Oas. 617 (1874); 6 Biss. 145; 21 
Fed. Oas. 620 (1874); id. 622 (1874). 

When the petitioners fail to prosecute proceedings in involuntary bank- 
ruptcy, any other creditors may intervene and conduct them to a con- 
clusion, though an application for leave to dismiss is pending. In re 
Buchanan, 10 N, B. R. 97; 4 P'ed. Cas. 527. 



Creditors — Petitions. 253 

After filing a petition in involuntary banliruptcy against a debtor, tlie 
petitioning creditors made a settlement with him. On the day fixed for 
the hearing, other creditors were thereupon allowed to appear and pro- 
ceed with the case. Ex parte Calendar, 5 Law Bep. 125; 4 Fed. Cas. 
1044 (1843). 

The court held that in determining whether a petition represents the 
necessai-y amount of indebtedness to the petitioning creditor, the interest 
might be added to the principal. Sloan v. Lewis, 22 Wall. 150. 

After adjudication, the bankrupt and a creditor filed separate petitions 
that the proceedings be set aside on the ground that the required number 
and amount of creditors had not joined in the original petition. It was 
held that the judgment entered on the return day that the required num- 
ber had signed was final in the absence of fraud or collusion. In re Mc- 
Kinley, 7 Ben. 562; 16 Fed. Oas. 218. 

There should be an allegation in a petition in involuntary bankruptcy 
that the petitioners believe that they constitute the required number of 
creditors. If the required number have not in fact joined, owing to the 
refusal of the bankrupt to make a statement of his accounts upon demand, 
and a suflicient number join later, the proceedings will not be set aside. 
Perrln & Gaff M. Co. et al. v. Peale, 17 N. B. R. 377; 19 Fed. Cas. 230. 

A creditor who held a lien by attachment whicli would be avoided by the 
adjudication, filed a petition asking leave to defend, and alleging, among 
other things, that the required number of creditors had not joined. It 
was ordered that the alleged bankrupt be required to file a list of cred- 
itors. Anon., 11 Chi. Leg. News, 190; 1 Fed. Cas. 995. 

A corporation could be adjudged a bankrupt under section 5122, R. S. 
Section 12 of the Act of 1874, as to the number of creditors joining in 
petition, was held not to apply to proceedings against corporations. In 
re Oregon Bulletin, Printing & Pub. Co., 18 N. B. B. 199; 8 Cbi. Leg. 
News, 81 ; 18 Fed. Cas. 770 (1875). 

The district court having determined that the claim of the petitioning 
creditor equals the required amount, such determination is conclusive 
that a debt of that amount is due against a collateral attack. Sloan v. 
Lewis, 22 Wall. 150. 

Individual, as well as firm creditors, should be taken into account in 
determining- whether the required number had joined in a petition. In 
re Matot et al., 16 N. B. E. 485; 16 Fed. Oas. 1109. 

The court of bankruptcy can only secure jurisdiction of the bankrupt 
and his estate by a petition clearly showing that the required number 
and amount of creditors have united, and a defect in this respect cannot 
be cured by amendment. In re Rosenfields, 11 N, B. R. 86; 20 Fed. Cas. 
1209. 

A creditor who had a lien on a bankrupt's property by attachment 
bought the claim of the petitioning creditor in bankruptcy, and obtained 
an order from the court dismissing the proceedings upon the payment of 
costs. Before the costs were paid, another creditor asked to be sub- 
stituted for the petitioning creditor, and to have the dismissal vacated. 



254 The Bankbuptct Law. 

The district court so ordered, and the circuit court on appeal approved 
of its action. In re Lacey et al., 12 Blatchf. 322; 14 Fed. Oas. 906. 

The petitioner settled his claim against the debtor, and before the return 
day of the order to show cause, moved to dismiss the proceedings. An- 
other creditor thereupon appeared, and, alleging that the charges set up 
In the original petition were true, asked that the motion be denied and 
that the case proceed. The prayer was granted, and the motion to dis- 
miss was denied. In re Mendenhall, 9 N. B. E. 380; 16 Fed. Cas. 9. 

A voluntary bankrupt offered a composition of 30 per cent. It was 
accepted, and a majority of his creditors in number and amount joined In 
a petition that the proceedings be discontinued, and the property re- 
stored to him to enable him to carry out the terms of the arrangement 
The court held that it would be necessary that there should be a hearing 
after notice to all the creditors before a discontinuance could be granted, 
and also that it could not be granted until the terms of the composition 
had been carried out. Obiter, the court expressed the view that in in- 
voluntary proceedings there could be a. discontinuance before adjudication 
without the assent of any of the creditors except the petitioners, and 
without notice to other creditors. In re McKeon, 7 Ben. 513; 16 Fed. Cas. 
207. 

Proceedings In involuntary bankruptcy cannot be discontinued without 
an order of the court in pursuance of a special application. In re Bu- 
chanan, 10 N. B. R. 97; 4 Fed. Cas. 527. 

Judge Blodgett, of the district of Illinois, held that creditors who had 
joined in an involuntary petition could not be allowed to withdraw. In 
re Heffron, 6 Biss. 156; 11 Fed. Ca,s. 1020. 

In the absence of good cause shown, the court will not permit a vol- 
untary petition to be withdrawn against the opposition of creditors. Ex 
parte Harris, 3 N. Y. Leg. Ob«. 152; 11 Fed. Oas. 606 (1845). 

Under the Act of 1841 it was held that a voluntary petition might be 
withdrawn before adjudication on a proper showing. Ex parte Randall 
et al., 5 Law Rep. 115; 20 Fed. Oas. 221 (1842). 

The bankrupt, the petitioning creditor, and all the creditors who had 
proved their debts, with an insignificant exception, petitioned for the dis- 
missal of the proceedings before the election of an assignee. The court 
ordered that the proceedings be dismissed, and that the messenger deliver 
the property to the bankrupt upon the payment of costs. In re Miller, 
'1 N. B. R. 410; 17 Fed. Oas. 295. 

While one who has voluntarily joined in the petition in involuntary 
bankruptcy cannot subsequently withdraw, this is not true of one whose 
name has been used without his consent. In re Rosenfields, 11 N. B. R. 
86; 20 Fed. Oas. 1209. 

Where creditors in good faith join in a petition in bankruptcy, they 
cannot afterward withdraw, leaving a less number than is required to give 
the court jurisdiction. But where assent to join in the petition is ob- 
tained by misrepresentation or misunderstanding on the part of the cred- 
itor, he may be allowed by the court to withdraw at any time before 
adjudication. In re Sargent, 13 N. B. B. 144; 21 Fed. Oas. 495 (1875). 



Ceeditoes — Petitions. 255 

A bankrupt who obtains the signatures of creditors to a false and 
fraudulent petition in Involuntary bankruptcy against himself is in con- 
tempt of court, and the proceedings will be stayed until he has purged 
himself of the contempt. In re Lalor, 19 N. B. R. 353; 14 Fed. Gas. 962. 

A member of a former partnership will not be heard on the ground of 
a contingent debt against another partner, or by reason of an indebtedness 
for assets and money of said copartnership growing out of unsettled 
transactions. Sigsby v. Willis, 3 Ben. 371; 22 Fed. Oas. 112. 

The stockholders of a company voted to give one of their number a 
mortgage to secure advances. Another stockholder, who was present 
and made no objection to the proceedings, subsequently filed a petition 
and set up the mortgage as an act of bankruptcy. It was held that he 
was estopped. In re Mass. Brick Oo., 2 Low. 58; 16 Fed. Gas. 1067. 

After adjudication and the election of an assignee, a creditor moved 
to set aside the proceedings for the reason that previous to the filing of the 
petition he had filed a petition in another district. The motion was 
denied on the ground that the creditors should not be required to try the 
question of bankruptcy again. In re Harris et al., 6 Ben. 375; 11 Fed. 
Gas. 611. 

A petition in Involuntary bankruptcy Is for the benefit of all the cred- 
itors, and may be prosecuted by anyone of them who comes in in a 
reasonable time; but where proceedings had been discontinued on account 
of a voluntary assignment for the benefit of creditors, and, seventeen 
months afterward, creditors applied to have the proceedings reopened, this 
was held not to be a reasonable time. Ex parte Freedley et al., Grabbe, 
544; 9 Fed. Gas. 744 (1844). 

An officer of a corporation had filed a petition In voluntary bankruptcy 
In its name. Four years afterward, one of the corporators filed a petition 
praying that the proceedings be dismissed on the ground that it was never 
authorized by the stockholders as required by law. The court held that 
after so long an interval it was a conclusive presumption that the petition 
was authorized. In re Jefiferson Ins. Oo., 2 Hughes, 255; 13 Fed. Gas. 432. 

Judge Hammond held that under the Law of 1867 creditors have a quasi- 
ministerial and quasi-judicial function to perform under some circum- 
stances. In re Sauls, 5 Fed. Rep. 715. 

A general denial of bankruptcy is sufficient to admit evidence of pay- 
ments made by tbe alleged bankrupt to the petitioning creditors. In re 
Skelly, 3 Blss. 260; 22 Fed. Gas. 272. 

One of several petitioners p,sked leave to withdraw on the ground that 
he had been Induced to unite by misrepresentation on the part of other 
petitioners. The court refused to allow him to withdraw. In re Vogel 
et al., 9 Ben. 498; 28 Fed. Oas. 1238. 

Pbefebences. 
§ 60. Preferred Creditors. — (a.) 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 



25(3 The Bankruptcy Law. 

made a transfer of any of his property, and the effect of the enforce- 
ment 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. 

(b.) 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 a preference, it shall 
be voidable by the trustee, and he may recover the property or its value 
from such person. 

(c.) If a creditor has been preferred, and afterwards in good faith 
gives the debtor further credit without security of any kind for prop- 
erty which becomes a part of the debtor's estates, the amount of such 
new credit remaining unpaid at the time of the adjudication in bank- 
ruptcy 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 attorney and counselor at law, solicitor in equity, or proctor in 
admiralty for services to be rendered, the transaction shall be re-exam- 
ined by the court on petition of the trustee or any creditor and shall 
only be held valid to the extent of a reasonable amount to be deter- 
mined by the court, and the excess may be recovered by the trustee 
for the benefit of the estate. 

Prociiring or Suffering Judgments. 

A levy suffered by a debtor, insolvent or contemplating insolvency, is a 
preference, and conclusive evidence of his intention to give a preference. 
In re Dibblee et al., 3 Ben. 283; 7 Fed. Cas. 651. 

The execution'of a warrant of attorney to an indorser, which gives him 
priority over other creditors, was held to be a voluntary act, as the in- 
dorser was powerless to coerce the debtor. Stewart et al. v. Loomis, 23 
Fed. Cas. 66. 

Under the Act of 1841 it was held that a default in a case where an 
attachment was made prior to the commencement of proceedings in bank- 
ruptcy was not an unlawful preference. In re Rowell, 2 N. Y. Leg. Obs. 
285; 20 Fed. Cas. 1288. 

In an involuntary proceeding, it rests upon the petitioning creditor to 
show that the alleged bankrupt suffered his property to be taken on legal 
process vrtth intent to give a preference. In re King, 10 N. B. B. 104; 14 
Fed. Cas. 506. 



Preferences. 257 

Where the bankrupt's property was seized and sold under a judgment 
by confession in a state court, or otherwise disposed of under circum- 
stances amounting to a fraudulent preference, the assignee In banljruptcy 
can recover the proceeds by a bill in equity. Traders' Bank v. Campbell, 
14 Wall. 87; Clarion Bank v. Jones, 21 id. 325. 

A warrant of ,attorney given by an insolvent firm is a preference not- 
withstanding it was given under threats of legal process made by the 
creditor. Campbell v. Traders' N. Bank, 2 Biss. 423; 4 Fed. Oas. 1192. 

Proceedings by a creditor to secure a judgment that will in operation 
give a preference, and an omission of the debtor to protect other creditors 
by proceedings under the Bankrupt Act, amount to a fraud upon the law. 
Buchanan v. Smith, 16 Wall. 277. 

Judge Emmons held that notwithstanding the warrant of attorney was 
dated more than six months before the filing of the petition in bankruptcy, 
the entering of judgment and levying of execution in pursuance of such 
warrant, with the debtor's sufferance and permission, was a fraud upon 
the act. Ford v. Keys, 4 Chi. Leg. News, 150; 9 Fed. Oas. 426. 

" Creditors issuing executions on judgment obtained upon demands long 
overdue against a bankrupt, who has been pressed in repeated instances 
to pay or secure the demand, and who failed to do so because of his ina- 
bility, must be held to have had reasonable cause to believe that his 
debtor was insolvent." Buchanan v. Smith, 16 Wall. 277. 

A debtor permitted judgment to be taken against him earlier than it 
could have been without his aid. An execution was issued on such judg- 
ment and his goods were levied upon. It was held to be within section 
35 of the Act of 1867, as amended in 1874. Rogers v. Palmer, 102 U. S. 
363. 

The circumstances of each case will determine whether the levy of an 
attachment or execution shows a desire on the part of the debtor to give 
a preference. Wilson v. City Bank, 17 Wall. 473; Sage v. Wyncoop, 104 
U. S. 319. 

When a debtor permitted a creditor to enter a judgment the question is 
chiefly as to the intent to give a preference, and the court should take all 
the circumstances into consideration. Little v. Alexander, 21 Wall. 500. 

A confession of judgment for a secured debt cannot be regarded as a 
preference as it takes nothing from the general creditors. Reber v. 
Gundy, 13 Fed. Rep. 53. 

The fact that the bankrupt had manifested a desire that a certain credi- 
tor should succeed by proceedings in a suit in obtaining a preference does 
not prove that the debtor suffered his property to be taken on legal pro- 
cess with intent to prefer. Brown v. Jefferson Co. Nat. Bank, 9 Fed. Rep. 
258. 

An assignee in bankruptcy can maintain an action to vacate a sale upon 
execution issued upon a judgment on a note of the bankrupt, with a 
cognovit given with intent to effect a preference. Balfour v. Wheeler, 15 
Fed. Rep. 229. 

Where a judgment has been obtained against an insolvent debtor, and 
17 



358 The Bankruptcy Law. 

his property seized, the court, in determining whether the proceedings are 
voidable as a preference, will consider the relations between the parties, 
their co-operation, the secrecy of their transactions, and other matters 
of like character. Balfour v. Wheeler, 18 Fed. Rep. 893. 

Where a debtor gave a judgment note payable one day after date for 
a debt not then due, the facts constituted a presumption of an intent to 
give and obtain a preference, and this presumption is not overcome by 
evidence that the note was given at the urgent solicitation of the cred- 
itor. Clarion Bank v. Jones, 21 Wall. 325. 

The judgment was taken in a state court by confession after the pas- 
sage of the Act of 1867, but before It went into effect. Both parties had 
knowledge of the debtor's insolvency. This was held to be an unlawful 
preference. Traders' Bank v. Campbell, 14 Wall. 87. 

The taking of a judgment upon a power of attorney was held not to be 
a confession of judgment within the meaning of the Act of 1867. Stern 
V. Schonfield, 22 Fed. Oas. 1310. 

A debtor knowing himself to be insolvent, who allows an action to 
mature to judgment and execution, the effect of which will be to giVe a 
preference, is chargeable with suffering a preference by legal process. 
Warren et al. v. Tenth Nat. Bank et al., 10 Blatchf. 493; 29 Fed. Oas. 
287. 

A merely passive attitude on the part of a debtor in an action against 
him does not warrant an inference of an intent to give a preference. 
Wight V. Muxlow et al., 8 Ben. 52; 29 Fed. Cas. 1174. 

A debtor who was sued for a just debt made a fictitious defense, which 
enabled another creditor, who brought a suit later, to obtain a judgment 
and the appointment of a receiver. Held, that the facts proved an Intent 
to give a preference to the latter creditor. Ibid. 

It is an unlawful preference for an Insolvent debtor to make a confes- 
sion of judgment when it is followed by a levy on his property. Webb v. 
Sachs, 4 Saw. 158; 29 Fed. Cas. 523. 

It is not a fraud on creditors for the bankrupt to fail to avail himself 
of usui-y as a defense. In re Kintzinger et al., 19 N. B. R. 152; 14 Fed. 
Cas. 700. 

A few days before the commencement of proceedings, the bankrupts 
had offered to allow judgment to be entered against them, which was 
done accordingly and the property sold. The judgment creditors had 
knowledge of the insolvency of their debtors. Held, that the assignee in 
bankruptcy was entitled to have the levy set aside as a preference, and 
to recover of the judgment creditor the value of the property. Darling v. 
Townsend et al., 5 Fed. Rep. 176. 

The fact of the issuing and levying of an execution on the same day 
judgment is rendered, and the subsequent commencement of voluntary 
proceedings in bankruptcy on the same day, is not conclusive evidence 
of a fraudulent preference through collusion of the debtor. Witt v. Hereth, 
6 Biss. 474; 30 Fed. Cas. 404 (1&75). 

Under the Act of 1867, held, that confession of a judgment, issuing 



Peefeeences. 259 

execution, and sale of property under it, constituted an indirect transfer 
of the property by ttie debtor. The transfer and promise is considered as 
made when the warrant of attorney is executed by entry of judgment, 
Irrespective of the date of the warrant. Zahm v. Fry, 9 N. B. R. 546; 30 
Fed. Cas. 904 (1ST4). 

Something more than passive resistance in an insolvent debtor is neces- 
sary to invalidate a judgment and levy on his property; but very slight 
evidence of the existence of a desire to prefer one creditor may be suffi- 
cient to avoid the transaction. Parsons v. Caswell, 1 Fed. Rep. 74. 

Held, under the Act of 1867, that where a warrant of attorney was 
given more than six months before the commencement of proceedings, 
if the lien of the execution issued in pursuance thereof attached within 
six months, the creditor was entitled to no preference where he had 
reasonable cause to believe his debtor insolvent. In re Terry, 2 Biss. '656; 
23 Fed. Oas. 849. 

It is not receiving a preference to obtain a judgment; otherwise when 
property is taken on attachment or execution. In re Stevens, 4 Ben. 513; 
23 Fed. Cas. 1. 

In the case cited, the circuit court for the eastern district of Pennsyl- 
vania held, that there having been an agreement to give a judgment to 
secure a loan at the time it was made, and the warrant confessing such 
judgment having been omitted by mistalje, it was not a fraud upon the 
provisions of the Banlsrupt Act to carry out the terms of the contract 
even after the circumstances of the debtor had become involved, and 
that the judgment should not be set aside; and further that the issue of 
execution on the said judgment was not a fraudulent procurement of 
execution within the meaning of the Act. Stover v. Kennedy, 5 Rep. 
136; 23 Fed. Cas. 194. 

No inference of intent to prefer a creditor is to be derived from the 
fact that an insolvent debtor suffers a judgment by default whereby 
a preference results, it being neither a legal nor moral duty for an in- 
solvent person to file a petition in voluntary banljruptcy, nor to defend 
against a just debt in order to give time to other creditors tO' institute 
banliruptcy proceedings. Partridge v. Dearborn, 9 N. B. R. 474; IS Fed. 
Cas. 1279 (1873). 

The exercise by a vendor of the right of stoppage in transitu is not a 
preference. ,So held in case where the banlsrupt had assisted the vendor 
in regaining possession of the goods. In re Foot et al., 11 Blatchf. 530; 
9 Fed. Cas. 357. 

A debtor gave a confession of judgment while he was solvent. Sev- 
eral months later, after he had become Insolvent, judgment was entered 
and an execution levied on his effects. Held, that the test was his con- 
dition at the time he gave the confession, and not when the execution was 
Issued. Field v. Baker et al., 12 Blatchf. 438; 9 Fed. Cas. 9. 

An assignee in bankruptcy brought an action of replevin against a 
sheriff who levied on goods upon an execution on a judgment entered in 
pursuance of a power of attorney given when the creditor had knowledge 



260 The Bankkuptct Law. 

of the insolvency of the firm. It was held that the assignee had a right 
to the possession of the property, and that the giving of a note with 
warrant of attorney was a fraudulent preference. Haughey v. Albin. 
2 Bond, 244; 11 Fed. Oas. 837. 

A creditor, who had knowledge of his debtor's embarrassments, seized 
his property on execution within four months of the filing of a petition in 
bankruptcy. The court granted a perpetual injunction against the sale 
of the property under the execution, holding that the circumstances 
showed an intended preference and a purpose to defeat the operation 
of the Bankrupt Act. Haskell v. Ingalls, 1 Hask. 341; 11 Fed. Gas. 772. 

A merely passive attitude on the part of a debtor toward an action in 
which a judgment was entered and a levy made does not amount to a 
fraudulent preference. Britton v. Payen et al., 7 Ben. 219; 4 Fed. Gas. 
1S3. 

Where a warrant of attorney was given when the debtor was solvent, 
and later, when he had become insolvent, the creditor entered judgment 
on it, and levied an execution on the property of the debtor, I he cred- 
itor having cause to believe that the latter was insolvent, the proceedings 
were held to be an illegal preference. Olark v. Iselin et al., 10 Batchf. 
204; 5 Fed. Oas. 881. 

The creditor had loaned money to the debtor in good faith when neither 
had reasonable cause to believe that the latter was insolvent, or intended 
any fraud. Later, when both parties had cause to believe the debtor 
to be insolvent, and intended a fraud, and within four months prior to the 
filing of a petition in bankruptcy, the creditor caused judgments to be 
entered in pursuance of the warrant. They were held to be fraudulent 
preferences. In re Lord, 5 N. B. R. 818; 15 Fed. Gas. 873. 

Under the Act of 1867, it was held that when the creditor had cause 
to believe the debtor insolvent, a judgment by default, followed by execu- 
tion, is a preference, and does not give a valid lien against the assignee 
in bankruptcy. Fitch et al. v. McGie, 2 Biss. 163; 9 Fed'. Oas. 180. 

One of the members of an insolvent firm, at the request of a creditor, 
reluctantly delivered a message to the latter's attorney, directing him 
to enter up judgment on a note with warrant of attorney previously given 
by the firm. Held, that he thereby caused the entry of the judgment. In 
re Benson et al., 16 N. B. R. 75; 3 Fed. Gas. 255. 

Construing section 39 of the Act of 1867, Judge Hopkins, of the western 
district of Wisconsin, said: " The debtor as above stated was confessedly 
insolvent when sued, and when his property was taken on the execu- 
tion he took no steps to prevent a judgment on his property from 
being thus taken; he, therefore, suffered an act to be done which he might 
have prevented which necessarily resulted in a preference in favor of 
the judgment creditor, and the law presumes that he intended the natural 
consequences of his acts. The result of his inactivity being necessarily 
an act to give a preference to the creditor suing, he is in law chargeable 
with having intended to effect that purpose." In re Heller, 3 Biss. 153: 
11 Fed. Gas. 1051. 



PEBli-EEENCES. 3C1 

A debtor who had absconded to Canada, crossed to the American 
side at Niagara Falls to permit the service of summonses on him in four 
attachment suits. Judgments ■were subsequently entered in pursuance 
of the service made under these circumstances and executions issued and 
levied on the debtor's property. Proceedings in bankruptcy having been 
commenced, and an assignee appointed, the latter tiled a bill in equity 
to set aside the judgments. The court held that the action of the banli- 
rupt amounted to a fraudulent preference iind that the judgments were 
void under section 35 of the Act of 1867. Beattie v. Gardner et al., 4 
Ben. 497; 3 Fed. Cas. 1. 

Where an insolvent debtor pays a judgment that was entered without 
fraud or collusion, and upon which an execution might be issued at once, 
for the purpose of enabling him to continue his business, such payment 
w^as held not to be in violation of the Bankrupt Act of 1841. Ex parte 
Garwood, Crabbe, 516; 10 Fed. Cas. 58 (1843). 

A creditor who sells the property of his debtor upon execution may be 
assumed to have reasonable cause to believe that the debtor is insolvent. 
Mayer v. Hermann, 10 Blatchf. 256; 16 Fed. Oas. 1240. 

A firm is chargeable with knowledge of its Insolvency when it is pressed 
by its creditors and is unable to pay its matured liabilities. A warrant 
of attorney given under such circumstances to one of its creditors is a 
preference. Campbell v. Traders' Nat. Bank, 2 Biss. 423 ; 4 Fed. Cas. 1192. 

Fraudulent Transfers. 

In the absence of evidence to the contrary, the law presumes the ac- 
ceptance by a creditor of a deed by the debtor giving him a preference. 
In re Saunders, 13 N. B. R. 164; 21 Fed. Cas. 524 (1875). 

Where an insolvent debtor transfers property to a creditor as security 
for a pre-existing debt, the transaction amounts to a preference in the 
absence of proof that the debtor was ignorant of his insolvency. Wager v. 
Hall, 16 Wall. 584. 

Where a creditor in an exchange received property far exceeding in 
value that which he surrendered, the transaction amounts to a preference. 
Waring v. Buchanan et al., 19 N. B. R. 502; 29 Fed. Cas. 228. 

The maker of a note paid the holder under circumstances amounting to 
a fraudulent preference. It was held that the payment was not excepted 
from the terms of the law on account of its having been made on a 
past-due note secured by the indorsement of a responsible person. Bartho- 
low V. Bean, 18 Wall 635. 

Where a debtor accepts a draft drawn on him by a creditor whom he 
knows to be insolvent, for the purpose of giving a preference, the transac- 
tion is void, and the acceptor can be required to pay the debtor's assignee 
in bankruptcy the amount of the draft. Fox v. Gardner, 21 Wall. 475. 

An oral agreement made at the time when the debt was entered into 
that security would be given when required, was held not to validate 
a mortgage given under circumstances which would otherwise make It a 
preference. In re Conner et al., 1 Low. 532; 6 Fed. Cas. 312. 



263 The Bankkuptct Law. 

A note and mortgage given to induce certain creditors to vote for a 
composition are a fraudulent preference, and can be avoided at the suit 
of the assignee. Howell et al. v. Todd et al., 12 Fed. Oas. 707. 

The effect of a transfer by one partner to another of his interest in 
the assets of the firm is to give the individual creditors an advantage 
over the firm creditors, and is, therefore, void as a preference. In re 
Cook et al., 3 Blss. 122; 6 Fed. Cas. 378. 

H. owed the defendant bank $1,000 on a note, and had a credit of $772. 
A few days before an adjudication in bankruptcy, he gave his cheek 
for $772, and paid $228 in cash, and took up his note. The bank had 
knowledge of his insolvency. Held, that the check on the deposit was 
not a fraudulent preference, but that the payment of $228 was, and 
that the assignee in bankruptcy could recover it from the bank. Hough 
V. First Nat. Bank, 4 Blss. 349; 12 Fed. Oas. 564. 

The maker of a promissory note, knowing himself to be insolvent, 
made payment to an inddrser who had reason to believe that the maker 
was insolvent. This was held to be a fraudulent preference within the 
meaning of section 85 of the Act of 1867, and it was further held that the 
assignee could sue for and recover the amount paid. Ahl et al. v. Thorner, 
2 Bond, 287; 1 Fed. Cas. 220. 

The owner of some logs delivered them at a sawmill on a conditional 
sale to the millowner, which was not consummated. The millowner be- 
coming insolvent, gave the owner of the logs sawed lumber instead of 
logs, to an amount in excess of his actual Interest. It was held that this 
was a preference and rendered the transaction void. Bailey v. Hender- 
son, 9 Ben. 534; 2 Fed. Cas. 373. 

Where a debtor makes a preference under the influence of threats and 
coercion, it is none the less a preference within the Act of 1841, if made 
in contemplation of bankruptcy. Atkinson v. Farmers' Bank, Grabbe, 
529; 2 Fed. Cas. 100 (1844). 

Where, under the conditions of a voluntary assignment, certain cred- 
itors executed releases, they are regarded as preferred within the mean- 
ing of the provision of the Act of 1841 denying discharge in such cases. 
Aspinwall's Case, 2 Fed. Cas. 65 (1843). 

While there were executions outstanding against the debtor, and no 
property to satisfy them, he assigned all of his stock of goods to a firm 
of which his father-in-law was a member, in payment of a debt of $3,000. 
His other property, consisting of bills receivable, was of little value. It 
was held that the assignment, under the* circumstances, amounted to a 
preference, and was made in contemplation of bankruptcy. In re House, 
1 N. Y. Leg. Obs. 348; 12 Fed. Cas. 598 (1843). 

An assignment to a trustee with preferences to some creditors over 
others, made in contemplation of insolvency, is conclusive evidence of 
an intent to defeat the operation of the Bankrupt Act. The trustee and 
all persons claiming under the assignment are charged with notice -of the 
insolvency of the assignor, and the intent, by the terms of the Instrument. 
Jackson v. McCulloch, 1 Woods, 433; 13 Fed. Cas. 225. 



Pkefeeences. 363 

A chattel mortgage given by a bankrupt was otherwise Invalid as a 
preference, but it was claimed that it was given in pursuance of a prom- 
ise made when the debt was contracted. Under the facts in proof, the 
court decided that the promise to secure the claim was not sufficiently 
specific to validate the mortgage. In re Jaclison I. M. Co., 15 N. B. R. 
438; 13 Fed. Oas. 260. 

It is a preference for an insolvent firm to make a conveyance of its 
assets to a continuing partner. If made within four months of filing 
a petition in bankruptcy it may be vacated by the joint creditors; or they 
may assent to such conveyance after proceedings in bankruptcy have 
been commenced, and prove their claim against the Individual estate of 
the continuing partner, if he has assumed the joint debts. In re Johnson 
et al., 2 Low. 129; 13 Fed. Oas. 721. 

An Insolvent debtor conveyed his real estate to his wife without con- 
sideration, and thereupon she gave a mortgage to certain creditors of 
her husband, who knew him to be insolvent. This was held to be void 
as a preference given by the husband. Gibson v. Dobie et al., 5 Biss. 19S; 
10 Fed. Gas. 316. 

Where a debtor settled with creditors at different rates, the burden 
of proof Is upon those interested to show that all the creditors con- 
sented. If there is a single exception, that is sufficient to vitiate the 
settlement. .Curran et al. v. Hunger et al., 6 N. B. B. 33; 6 Fed. Gas. 982. 

A bankrupt sold to his father-in-law, a few days before his petition 
in voluntary bankruptcy, the largest portion of his property, and re- 
ceived notes payable at long dates. The father-in-law cashed the notes, 
and paid to his own son, as mortgagee, the money thus furnished in 
discharge of a mortgage on the property of his daughter, the wife of 
the bankrupt. The father-in-law had knowledge of the bankrupt's in- 
solvency. The court held that the transaction was clearly fraudulent 
and void as against creditors. Lawrence v. Graves, 5 N. B. E. 279; 15 
Fed. Gas. 71. 

A bill of sale of fixtures given within four months prior to the filing 
of a petition in bankruptcy to secure past-due rent is void as a preference. 
In re Eckenroth, 8 Fed. Gas. 286. 

More than four months before the commencement of proceedings in 
bankruptcy against a corporation, an officer, vrtthout lawful authority, 
had executed a deed of trust to secure a debt. Within four months prior 
to the commencement of proceedings, the corporation ratified his action. 
The deed of trust was held to be fraudulent and a preference. In re 
Kansas Gity S., etc.. Go., 9 N. B. R. 76; 14 Fed. Gas. 128. 

A merchant gave a mortgage on his entire stock of goods to a creditor. 
Two years later, and within four months of the proceedings in bankruptcy, 
he gave another, which secured the previous debt with some accretion 
of interest, and also covered additions to the stock. The court held that 
the mortgagee's rights must be determined wholly by the second raoi t- 
gage; that it was a preference under sections 35 and 39 of the Act of 
1867, and that the mortgagee could not prove it as a debt against the 
estate of the bankrupt. In re Jordan, 9 N. B. R. 416; 13 Fed. Gas. 11:^1. 



264 .The Bankkuptcy Law. 

Turning over assets to pay one debt without retaining sufficient goods 
to pay other debts as they fell due is not a payment in the ordinary 
course of business. In re Dibblee et aJ., 3 Ben. 283; 7 Fed. Oas. 651. 

In March, 18C9, P., to secure a loan made at the time, gave O. a chattel 
mortgage on the goods in his store. The mortgagor remained in posses- 
sion. The mortgage was not recorded until the 5th of March, ISTO. On 
the 7th of March, O. took possession. In the meantime, P. had become 
insolvent, of which fact C. had Imowledge. On the 30th of March, pro- 
ceedings in banliruptcy were commenced against P. Thereafter the as- 
signee in banliruptcy brought a suit against O. to recover the value of 
the goods taken under the mortgage. Held, that the mortgage was 
invalid; that the possession by the mortgagee operated as a preference, 
and that the assignee could recover the value of the goods taken. Harvey 
V. Crane, 2 Biss. 496; 11 Fed. Gas. 734. 

It was held to be a fraudulent preference where a firm in embarrassed 
circumstances called a meeting of their creditors, and on the same day 
transferred to one creditor the note of a third party as security for an 
existing debt; but that the rule would not apply where such a transfer 
was made as collateral security for a new loan. Ex parte Shouse, 
Crabbe, 482; 22 Fed. Gas. 26 (1842). 

Under the Act of 1867 a mortgage made out of the usual and ordinary 
course of business is prima .facie evidence of a fraudulent- preference. 
In re Palmer, 3 N. B. R. 283; IS Fed. Gas. 1018 (1869). 

An assignee in bankruptcy brought suit against a creditor who had 
received payment of his debt from the bankrupt, who was a private 
banker, after the bank had suspended payment and closed its doors. 
Held, that the payment was an illegal preference, and could be recovered 
by the assignee in bankruptcy. Markson v. Hobson et al., 2 Dill. 327; 16 
Fed. Gas. 774. 

An insolvent debtor sold his stock of goods to a creditor who had 
reasonable cause to believe him to be insolvent, and with the i)urchase 
price extinguished the vendee's claim and paid some other local creditors. 
The court held that the transaction was void, and that the assignee could 
reocver the value of the goods from the purchaser. In re McDonough, 3 
N. B. R. 221; 16 Fed. Gas. 68. 

A debtor who was wholly unable to meet his current expenditures, 
though he seemed to have confidence that he might retrieve his affairs, 
gave a mortgage to a creditor who had reason to believe that his debtor 
was insolvent. A petition of the mortgagee that he be paid out of the 
proceeds of the mortgaged property was denied, on the ground that the 
mortgage was void against creditors. Merchants' Nat Bank v. Truax, 
1 N. B. R. 545; 17 Fed. Oas. 58. 

" There is the best authority for saying that a trader who is insolvent, 
and knows it, and pays in full all securities or debts of one creditor 
may be presumed to intend to prefer that creditor." In re Peri-y et al., 
19 Fed. Oas. 264. 

When an insolvent debtor pays or secures one creditor in full, leaving 



Prefeeences. 205 

others unsecured, it rests upon the secured creditor to show that the 
debtor did not know he was insolvent at the time. Stobaugh v. Mills et 
al., 8 X. B. R, 361; 33 Fed. Cas. 110. 

A creditor took the note and mortgage of an individual member of a 
firm in payment of a firm debt. This was held to be an unla'fl^ul prefer- 
ence over both the separate and partnership creditors. In re Parker, 11' 
Fed. Rep. 397. 

An assignment by a debtor of all his property to pay certain debts in 
full, the balance to be applied wo rata upon other debts, is a preference 
on its face, and void. Stobaugh v. Mills et al., 8 N. B. H. SGI; 23 Fed. Cas. 
110. 

O., who had a mortgage on a stock of goods owned by M., bought the 
stoclf, and took possession of it, knowing at the time that M. was in- 
solvent. The court held that the transaction amounted to a preference, 
and that O. must pay into court the value of the property, with interest 
from the time of the sale. Smith v. McLean et al., 10 N. B. R. 260; 22 
Fed. Cas. 591. 

It was held to be a preference for the obligor on a bond tO' obtain 
securities from one of his debtors, and turn them over to indemnify his 
sureties. Smith v. Little et al., 5 Biss. 490; 22 Fed. Cas. 589. 

For the purpose of giving a preference to a creditor of the bankrupt, 
a third party purchased logs of the bankrupt and took a transfer of a 
note held by the creditor. The court decided that he held such notes as 
trustee for the creditor; and that the acceptance of the logs was a prefer- 
ence. In re Stein, 16 N. B. R. 569; 22 Fed. Cas. 1232. 

An insolvent debtor is presumed to have intended a preference when he 
does an act which operates as such. Webb v. Sachs, 4 Saw. 158; 29 Fed. 
Cas. 523. 

Where the creditor of a bankrupt had purchased property of the latter 
through an agent, and tendered the notes of the bankrupt in payment, 
the transaction was held to be an illegal preference. Fleming et aJ. v. 
Andrews, 3 Fed. Rep. 632. 

A transfer of merchandise to replace goods fraudulently abstracted, 
though such transfer is honestly intended, constitutes a preference in 
the meaning of the Bankrupt Act. Sharp v. Philadelphia Warehouse Co., 
19 N. B. R. 378; 21 Fed. Cas. 11C8 (1880). 

The bankrupts turned over their stock in trade to a purchaser who 
had indorsed their note, and with the proceeds took up such note. This 
was held to be a preference, and the court sustained a bill in equity by 
the assignee to recover the property transferred. Sill v. Solberg, 6 Fed. 
Rep. 468. 

Certain creditors went to the bankrupt's store and helped themselves 
to goods, which they carried away on drays and wagons without objec- 
tion on his part. This was held to be a preference, and a sufficient 
ground for refusing a discharge. In re Bernia, 5 Fed. Rep. 723. 

The creditor of a banljrupt, having knowledge of the condition of 
his business, exchanged notes secured by a chattel mortgage for a de- 



266 The Bankbuptoy Law. 

mand note, and immediately commenced suit and levied on all the prop- 
erty of the bankrupt, including some that was not covered by the mort- 
gage. Held, that the transaction was a fraudulent preference. Waring 
V. Buchanan et al., 19 N. B. R. 502'; 29 Fed. Gas. 228. 

" A 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 his proceeds to all his creditors necessarily operates 
as a preference to him, and must be taken as conclusive evidence that 
a preference was intended unless the debtor can show that he was 
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." 
Toof V. Martin, 13 Wall. 40. 

Judge Hopkins, of the district court of Wisconsin, said: "The prefer- 
ences declared void by the second section of the Act of 1841 are such as 
were made when he contemplated becoming a bankrupt under the Act. 
There, the intent of the debtor was the principal question. Under the 
present Act (1867) a preference created by a party ' becoming insolvent ' 
is made void, and his intent or belief is not the question." Hall v. Wager 
et al., 3 Biss. 28; 11 Fed. Oas. 271. 

A. & B. as partners conveyed all their property to secure the indorsers 
of certain notes. Afterward suits were commenced on some of the debts 
so secured, but before judgment was entered A. & B. became bankrupts. 
Some of the personal property so assigned had been sold previous to the 
bankruptcy, and the proceeds applied to the payment of the secured debts. 
It was held, under the Act of 1841, that the assignment was void as a 
preference; that the judgments were not valid liens within the last proviso 
of section 2 of the Act of 1841, and that the proceeds could be followed 
by the assignee. A. & B., the bankrupts, were refused a discharge. 
Everett v. Stone et al., 3 Story, 446; 8 Fed. Gas. 898 (1844). 

Judge Drummond used the following language: " It is also claimed 
on the part of the bank that the bankrupts received a considerable fund 
at the time this contract was made which went to increase their estate 
and, therefore, it not being a security given for an antecedent indebted- 
ness, but for money actually received at the time, it ought to be held valid. 
Undoubtedly there are distinctions between a case where an effort 
is made to secure or pay a precedent debt and that where money or 
property is received at the time by the bankrupt as a part of the contract 
which is the subject of investigation; but that circumstance alone can- 
not render a contract valid as against creditors which otherwise is un- 
lawful, because that would enable one creditor to obtain a priority of 
payment over another; and to hold the contract valid in this case would 
give the bank a preference over the general creditors of the bankrupt 
which ought not to be allowed unless the contract is in all respects 
valid." Adams v. Merchants' Nat. Bank, 2 Fed. Rep. 174. 

Where the act complained of does in fact give a preference, the intent 
^vill be inferred unless the contrary is shown. In re Black et al 2 Ben 
195; 3 Fed. Gas. 495. 



Pkefeebnoes. 367 

Circumstantial evidence may be resorted to to establish the intent of 
a debtor to give, and the intent of a creditor to secure an unlawful 
preference. Giddings v. Dodd et al., 1 Dill. 116; 10 Fed. Cas. 338. 

The question of intent to prefer is one of fact to be submitted to the 
jury. In re Seeley, 19 N. B. E, 1; 21 Fed. Cas. 1007 (1879). 

In bankruptcy proceedings a surety or indorser is regarded as a debtor, 
and subject to the resti-iction of the law against making preferences 
when insolvent. In re Shoenberger, 4 Cin. Law Bui. 965; 21 Fed. Oas. 
1334 (1879). 

It was held to be corroborative of the evidence of an intent to give 
a preference that the testimony of the debtor and the creditor alleged 
to have been preferred was not produced. Darling v. Townsend et al., 
5 Fed. Rep. 176. 

The provision of the Bankrupt Law of 1867 declaring a sale, transfer, 
etc., made out of the ordinary course of business, prima facie evidence 
of fraud, throws the burden of proof on the purchaser in such case to 
sustain the validity of his purchase. Wilson v. Stoddard, 4 N. B. R. 254; 
30 Fed. Cas. 225 (1870). 

Declarations of the bankrupt at or previous to the transaction, though 
made without knowledge of the creditor, may be received in evidence 
to prove a fraudulent preference where there was evidence given tending 
to show a conspiracy between the bankrupt and the creditor. Nudd v. 
Burrows, 91 U. S. 426. 

The court considered the two clauses of section 35 of the Act of 1867, 
and held that the first was limited to a creditor of the bankrupt, or one 
who is under any liability for him, and who receives money or property 
by way of preference, and that the second applies only to the purchase of 
property of the bankrupt by a person who has no claim against him. 
Gibson v. Warden, 14 Wall. 244. 

No creditor who obtains a fraudulent preference from a bankrupt can 
retain any benefit thereby. In re Drumiaond, 4 Biss. 149; 7 Fed. Oas. 1110. 

The question being raised whether a conveyance had been made six 
months before the commencement of proceedings, it was held that the 
time was fixed by the actual execution and delivery of the deed, and not 
the date. In re Rooney, 6 N. B. R. 103; 20 Fed. Oas. 1153. 

A payment made by the debtor after the filing of a petition in bankruptcy 
is merely a nullity, and is not to be regarded as a preference. In re 
Randall et al., 1 Saw. 56; 20 Fed. Oas. 226. 

" Insolvency Is merely the opposite of solvency. A man who Is unable 
to pay his debts out of his own means, or whose debts cannot be col- 
lected out of such means by legal process, is insolvent; and this is so 
although it may be morally certain that with indulgence from his creditors 
in point of time he may be ultimately able to satisfy his engagements in 
full. The term Insolvency imports a present inability to pay." In re 
Randall et al., 1 Deady, 557; 20 Fed. Cas. 222. 

Insolvency, as the term is used in the bankrupt law, means the condi- 
tion of a person unable to pay his debts as they fall due or in the usual 
course of business, although he may be able to pay his debts at a future 



268 The Bankhuptct Law. 

time upon the winding up of his business. Morgan et al. v. Mastick, 2 N. 
B. K. 521; 17 Fed. Cas. 752. 

A debtor made a conveyance of his property to a creditor who agreed 
to hold the property to such uses as might be designated on or before a 
certain day in a composition between the debtor and his other creditors. 
It was further agreed that If no composition was made by the time 
fixed, the grantee should hold the property absolutely in discharge of 
the grantor's indebtedness to him. No composition having been made, 
the creditor took possession of the property. It was held that the date 
of the payment to the creditor was the day when the title vested in him 
absolutely. Haskill v. Fry, 14 N. B. E. 525; 11 Fed. Cas. 777. 

It is the primary object of bankrupt laws to secure an equal distribution 
of a debtor's assets among his creditors. Under section 39 of the Act of 
18G7, a debtor makes a preference if he pays one creditor before another. 
But two things are necessary to make such claim fraudulent: First, the 
debtor must be insolvent; and, second, he must intend to prefer the cred- 
itor. Morgan et al. v. Mastick, 2 N. B. R. 521; 17 Fed. Cas. 752. 

" The ' preference ' must be an advantage actually given to one or more 
of its creditors over the others, with the knowledge of his situation, and 
the intent to accomplish this end. The ' intent ' Is an element of the ob- 
jectionable transaction according to the letter of the law, and though one 
is presumed to intend the actual results of his acts, the intent is essential, 
and must be shown by his acts and the circumstances." Miller v. Keys, 
3 N. B. R. 224; 17 Fed. Cas. 328. 

When a debtor sells his property to his father-in-law, who knows him 
to be insolvent, and applies the purchase money to pay a mortgage on 
his wife's property, the transaction is a transfer of the debtor's property 
to his wife in fraud of his creditors. Andrews v. Graves, 1 Dill. lOS; 1 
Fed. Cas. 878. 

Where a bankrupt transferred all of his property to a creditor three 
weeks before filing his petition, leaving many debts unpaid, the transac- 
tion was held to be a preference unless explained, and It could not be 
excused because it was done under the Influence of threats. When the 
necessary effect Is to prefer one creditor, the intent will be presumed. 
In re Batchelder, 1 Low. 373; 2 Fed. Cas. 1012. 

It is an illegal preference for a creditor to release the goods of an in- 
solvent debtor from an execution, and at the same time take a transfer of 
other assets from the debtor in payment of the debt. Clark v. Iselin et al., 
10 Blatchf. 204; 5 Fed. Cas. 881. 

A conveyance to his wife by a member of a firm in embarrassed cir- 
cumstances is fraudulent where existing debts were all paid by others 
resulting in bankruptcy. Antrim v. Kelly, 4 N. B. R. 587; 1 Fed. Cas. 
1062. 

A creditor who purchases goods of an insolvent debtor is entitled to 
retain them or their value, as against the assignee, to the extent that he 
had paid for the goods; but he cannot credit such goods on a pre-existing 



Prefeeences. 269 

debt. Such credit will be considered a preference and in fraud of tlK^ 
bankrupt law. Scammon v. Bowers, 1 Hask. 406; 21 Fed. Oas. 623 (1873). 

Where securities are given in pursuance of a promise made when the 
debt was contracted, the transaction is none the less void if It was other- 
wise a preference. Graham v. Stark et al., 3 Ben. 520; 10 Fed. Oas. 939. 

Judge Blatchford decided that to malce a transaction between a debtor 
and his creditor void, six elements must coexist: " The insolvency, the 
intent to give the preference, aiid the doing or suffering the thing which 
works the preference, are the elements on the part of the debtor. The 
elements on the part of the creditor are the receiving or being benefited 
by such thing, the having reasonable cause to believe the insolvency of 
the debtor, and the having reasonable cause to believe that a preference 
is Intended." Kohlsaat v. Hoguet et al., 4 Ben. 565; 14 Fed. Oas. 835. 

Under the provisions of the Act of 1867 (section 5128, R. S.) there must 
be a concurrence of the following facts to avoid an illegal preference: 
" First, the debtor must be insolvent, or acting In contemplation of in- 
solvency. Second, his purpose must be to give a preference. Tfcird, 
when a preference has been obtained by legal process, the seizure or 
attachment must have been procured or suffered by the debtor. Fourth, 
the creditor must have reasonable cause to believe the debtor to be in- 
solvent. Fifth, he must know that the. seizure is a fraud on the provi- 
sions of the Bankrupt Act; and. Sixth, in voluntary cases, the preference 
must have been given within four months of the filing of the petition in 
bankruptcy." In re Blabon et al. v. Hunt et al., 2 N. J. L. J. 179; 3 Fed. 
Oas. 493. 

In construing the provisions of the Law of 1841 respecting fraudulent 
preferences, Judge Woodbury used the following language: "But tte 
greatest error hao been in considering almost every sale or payment, just 
before stopping payment, as an illegal preference. The payment or con- 
veyance must be for the purpose of preferring a creditor. There had been 
numerous decisions upon this point; and a number of instances might be 
mentioned, as illustrating the question of intent. Thus, if a debtor went 
to a particular creditor, hunted him up, picked him out from the rest, and 
paid him more in proportion than he could pay the others; if he elected to 
pay a relative to whom he was indebted; if the transfer or conveyance was 
done secretly; if it was out of the usual course of business, in a new, 
extraordinary, or unusual manner; if it was just in the hurry of going into 
insolvency, a day or two or an hour or two before making the petition; if 
payment of a debt was made before it became due; or if a debtor should 
convey away the whole of his property on the eve of bankruptcy. Any 
of these circumstances would tend to show his intention to prefer the 
creditor to whom the payment or transfer was made. On the other hand, 
if the creditor had pressed hard for his debt; if payment was made under 
the pyessure of importunity, or threats of legal process; if it was in the 
ordinary course of dealing between the parties; these would be circum- 
stances tending to show that some other motive actuated the debtor, 
rather than the intention to prefer a creditor. And where the conse- 



270 The Bankettptct Law. 

fluences of an act are penal, and a fair and honest motive is as consistent 
with the act as a fraudulent one, the former Is, of course, to be presumed 
to have been the real and true one." Ashby v. Steere, 2 W. & M. 347; 
2 Fed. Gas. 15. 

Transactions Held to be Valid. 

Payments to a retiring partner in satisfaction of his Interest in the co- 
partnership is not a preference of one creditor over another. In re Emery 
& Leeds, 1 Fed. Gas. 786 (1843). 

Held, that section 35 of the Act of 1867 did not forbid the exchange of 
one security for another of equal value vrlthln the four months before the 
commencement of proceedings, notwithstanding one of the parties knew 
that the other was insolvent. Sawyer v. Turpin, 91 U. S. 114. 

It was held not to amount to an Intent to defraud for a debtor to prefer 
his individual creditors over persons who had claims against him for a 
statutory liability for the debts of a corporation of which he was a 
stocliholder. Cookingham v. Ferguson et al., 8 Blatchf. 488; 6 Fed. Gas. 
450. 

An assignee in bankruptcy sued the indorsers of an accommodation note 
which was paid at maturity by the maker, who had received all the pro- 
ceeds for the money so paid. It was held that he could not recover as the 
payment was not a preference under section 35 of the Act of 1867. Bean 
V. Laflin, 15 N. B. K. 333; 2 Fed. Gas. 1139. 

Where no fraud was intended or effected, an Insolvent debtor may 
borrow money and give security therefor on his property. GafCney's 
Assignee v. Signaio, 1 Dill. 158; 9 Fed. Gas. 102a 

gV bank having called upon a depositor to make good an overdraft, or 
secure it, he sent them securities to the amount of $1,527.39. Before it 
received them, other credits had been made upon his account which gave 
him a balance. Subsequently, he drew out the balance and the $1,527.39. 
A few days later, proceedings in bankruptcy were commenced against 
him, and the assignee brought suit against the bank to recover the 
$1,527.39. It was decided that the transaction involved no violation of the 
Bankrupt Act. French v. First Nat. Bank, 8 Ben. 248; 9 Fed. Gas. 787. 

The giving of a mortgage to secure a debt which amounts to more than 
the value of the mortgaged premises is not a preference, and the mort- 
gagee, after deducting the value of the security, may prove the balance of 
his debt. Coxe et al. v. Hale et al., 10 Blatchf. 56; 6 Fed. Gas. 689. 

Where an insolvent corporation gave a mortgage that was intended as an 
unlawful preference, but the proceeds of which were subsequently diverted 
to another purpose, it was held that it did not amount to a preference 
within the terms of the Act of 1867. Gorbett v. Woodbury, 5 Saw. 403; 
6 Fed. Gas. 531. 

Planters, who were indebted to their commission merchants, shipped 
cotton to them in consideration of further advances. The shipments were 
held to be a sale, and not a preference. Harrison v. McLaren, 10 N. B. R. 
244; 11 Fed. Gas. 654. 



Peefeeences. 271 

A payment to a secured creditor is not a fraud upon the Bankrupt Act. 
Halleck et al. v. Tritch, 17 N. B. R. 293; 11 Fed. Cas. 286. 

The payment by an insolvent debtor of a percentage to some of his cred- 
itors, under circumstances that would not prevent other creditors from 
receiving an equal percentage, Is not an unlawful preference. In re Hap- 
good et al., 2 Low. 200; 11 Fed. Oas. 473. 

A debtor, though he is known to be embarrassed, can make an honest 
sale of his property for the purpose of providing funds to pay his debts 
and avoid Insolvency. Darby v. Lucas, 5 N. B. R. 437; 1 Dill. 164; 6 Fed. 
Oas. 1183, 1184. 

It appeared that within a month before the filing of a petition the cred- 
itor had executed two assignments conveying his real and personal prop- 
erty to be distributed among his creditors pro rata. It was held, under the 
Act of 1841, that these assignments were not preferences, and would not 
bar his discharge. In re Ely, 1 N.. Y. Leg. Obs. 343; 8 Fed. Oas. 599. 

It is not an illegal preference to give security for a present loan of 
money. Olark v. Iselin et al., 10 Blatchf. 204; 5 Fed. Oas. 881. 

It is not presumptively a fraudulent preference for a debtor to assign 
his books of account to a creditor within two months prior to the com- 
mencement of proceedings in bankruptcy. In re Broich et al., 7 Biss. 303; 
4 Fed. Oas. 205. 

When an insolvent debtor makes a payment not knowing that he is in- 
solvent, the law will not presume that he thereby Intended a preference, 
though such was its effect. In re Oregon Bulletin Printing & Pub. Oo., 13 
N. B. R. 506; 18 Fed. Oas. 773 (1876). 

It was held that bonds and coupons of a railroad were not commercial 
paper within the meaning of the Act of 1867; also that the payment of 
interest coupons by a railroad, after suit was brought or threatened 
thereon, was not a preference of creditors within the meaning of the law. 
In re Oplousa & G. W. R. Oo., 3 N. B. R. 31; 18 Fed. Oas. 751 (1869). 

Where a creditor accepts a compromise without deceit having been 
practiced upon him, he cannot be heard in a petition alleging a preference 
because other creditors received more than he did. In re Hunger et al., 
4 N. B. R. 295; 17 Fed. Oas. 986. 

To make a payment voluntary on the part of the debtor, it must originate 
with him, and this cannot be said to occur where the first step was taken 
by the creditor. In re Rowell, 2 N. Y. Leg. Obs. 285; 20 Fed. Cas. 1288. 

Where a depositor gave a check against his balance in a bank in pay- 
ment of a note held by the latter, the transaction was held not to be a 
fraudulent preference within the meaning of section 5128, R. S. Robinson 
v. Wis. M. & F. Int. Oo. Bank, 9 Biss. 117; 20 Fed. Oas. 1053. 

Under the Act of 1841 a conveyance made two months before the com- 
mencement of proceedings was held not to be void where the grantee 
acted in good faith, without knowledge of the bankrupt's intention to 
defraud creditors. McLean v. LaFayett© Bank et al., 3 McLean, 587; 
16 Fed. Oas. 264 (1846). 

A second chattel mortgage had been given to correct an error in a 



373 The Bankruptcy Law. 

previous mortgage executed more than four months previous to the pro- 
ceedings in bankruptcy. It was held that it was not an illegal preference 
under the Law of 1867. Player v. Lippincott et al., 4 Dill. 124, 125; 19 Fed. 
Cas. 862, 863. 

Held, that a mortgage by a railroad company to secure all its creditors 
equally out of its earnings, or to pay such as refused the security their 
ratable proportion of the proceeds, is not a violation of the Bankrupt Act. 
In re Union Pac. R. Co., 10 N. B. R. 178; 24 Fed. Oas. 624. 

Where the maker of a note pays the holder, the payee and indorser is 
not chai'geaWe with receiving a preference, although he had knowledge 
of the maker's insolvency; but the court held that the contrary would be 
true if the indorser procured such payment to be made with intent to give 
a preference. Thomas v. Woodbury, 1 Hask. 550; 23 Fed. Cas. 982. 

The maker of a note paid an indorser a part of the principal and bor- 
rowed from him the balance necessary to complete the payment, where- 
upon the indorser paid it. Held, that the indorser was not chargeable 
with receiving a preference except as to the amount paid by the maker. 
Ibid. 

Creditors conspired with the aid of their debtor to secure an advantage 
over other creditors. Held, under the Act of 1867, that if the means used 
were not unlawful, and the preferences were made more than two months, 
before the commencement "of proceedings in bankruptcy, the transaction 
may be valid. Van Kleeck v. Miller et al., 19 N. B. R. 484; 28 Fed. Cas. 
1025. 

The treasurer of a building and loan association, having in his hands a 
sum of money belonging to an association, deposited it in a bank, taking 
a certificate of deposit payable to himself as treasurer. Sixty days later a 
petition in bankruptcy was filed against him. The deposit was held not 
to be an unlawful preference, the association having no cause to believe 
him to be insolvent. Lindsey v. Lambert B. & L. Ass'n, 4 Fed. Rep. 48. 

A creditor is not to be held as unduly preferred by a bankrupt unless 
at the time the creditor understood himself to be dealing direct with him 
or with his agent for a conveyance, security, transfer, or payment out of 
the funds of the debtor; thus withdrawing funds appropriated by law for 
the benefit of all creditors. Winsor v. Kendall, 3 Story, 507 ; 30 Fed. Cas. 
320 (1844). 

Members of a firm in New York were also members of a firm in Canada, 
and the latter mortgaged its property for a loan to carry on its business 
and pay existing debts. Held, that this was not a preference on the part 
of the New York firm. In re White, 18 N. B. R. 107; 29 Fed. Oas. 966. 

An exchange of security, even after the debtor is known to be insolvent. 
Is perfectly valid if the creditor receives no more in value than he gives 
up. Such new security, being substituted within four months of the 
filing of the petition in bankruptcy, is not invalidated by the Bankrupt 
Act. Sawyer v. Tarpin, 1 Holmes, 226; 21 Fed. Cas. 589 (1873). 

It is not necessarily a violation of the bankrupt law for a creditor to 
receive payment or take security in dealing with a person whom he might 



Prefeeences. 273 

suspect to be In embarrassed circumstances. Stucky v. Masonic S. Bank, 
108 V. S. 74. 

The constitution of a stoclc exchange provided that where a member 
became insolvent he might sell his seat for the benefit of members to 
whom he was indebted. Held, that a sale under this provision was not a 
violation of the Banlirupt Act of 1867. Hyde v. Woods, 94 U. S. 523. 

An insolvent debtor gave a mortgage on real estate to secure a bona fide 
indebtedness to his wife, who had no linowledge of his insolvency. The 
court refused to set aside the mortgage at the suit of the assignee in 
banltruptcy. Medsker v. Bonebrake, lOS U. S. 6S. 

The execution of a new mortgage for an existing debt already secured 
by a mortgage on the same property, although given within four months 
before the adjudication, is not a preference. Burnhisel v. Firman, 22 
Wall. 170. 

A creditor had acquired a lien by execution on the stock of his debtor 
exceeding in value the amount of his claim. Prior to proceedings in bank- 
ruptcy, the debtor transferred to him bills receivable, and he thereupon 
satisfied the judgment. This transaction was held to be valid. Clark v. 
Iselln, 21 Wall. 360. 

The borrowing of money by an insolvent debtor, and the pledging of 
property to secure the loan is held not to violate the Act of 1867 where the 
debtor entertains the hope of overcoming his difficulties. Tiffany v. 
Boatman's Institution, 18 Wall. 375. 

Where the bankrupt regarded a certain debt as in the nature of a trust, 
his settlement of the same was held not to be a fraudulent preference. 
In re Frantzen, 20 Fed. Rep. 785. 

The bankrupt had turned over certain materials of little value, which 
he had procured for family use, to secure a small debt. This was held not 
to be a fraudulent preference. In re Scott, 11 Fed. Rep. 133. 

After the failure of the bankrupt, he returned to the seller a lot of goods 
received a few days previous. This was held not to be a payment or 
transfer of property. In re Aspinwall, 11 Fed. Rep. 156. 

Under the circumstances of the case, the court held that delivery by a 
debtor four days before the commencement of proceedings of a tannery 
and the hides contained therein for the purpose of finishing them, did not 
amount to a fraudulent preference. Hauselt v. Harrison, 105 U. S. 401. 

The debtor gave a deed of trust to secure a debt previously secured by 
a mechanic's lien. This was held to be mere change of securities, and not 
a fraudulent preference. In re Weaver, 9 N. B. R. 132; 29 Fed. Cas. 845. 

Held, under the circumstances of the case, that an assignment made by 
the bankrupt about one year before his failure was not made in contem- 
plation of bankruptcy. In re Smith, 9 Fed. Rep. 592. 

Executing a chattel mortgage more than four months before, with an 
agreement that it be not recorded, and it being not in fact recorded until 
within prior to the bankruptcy, is not a void preference under the Act of 
1867. Matthews v. West (Cir. Ct.>, 48 Fed. Rep. 664. 

The Act of 1800 went Into effect on June 2d of that year. A deed was 
18 



274 The Bankkttptcy Law. 

dellT-ered on the 30th of May, but not acknowledged until June 14th. It 
was held th^t the deed was made on the former day, and that it was not 
within the contemplation of the Act. Wood v. Owings, 1 Oranch, 23&. 

The court of bankruptcy upheld a settlement which was made with a 
proviso that no other creditor should receive better terms, notwithstand- 
ing the debtor afterward paid some of his other creditors in full. In re 
Sturges et al., 8 Biss. 79; 23 Fed. Cas. 307. 

A transfer of real estate by the debtor to his daughter ten years before 
the adjudication was held not to be a fraud upon creditors within the 
meaning of section 14 of the Act of 1867. Warren v. Moody, 122 U. S. 132. 

Under the Act of 1841, a sale of property to a creditor more than thirteen 
months before the debtor filed his petition in bankruptcy, made In good 
faith, and without knowledge on the part of the grantee that the grantor 
contemplated going into bankruptcy, is valid as to the grantee, even 
though it might prevent the bankrupt from getting his discharge. Ashby 
V. Steere, 2 Woodb. & M. 342; 2 Fed. Oas. 15 (1846). 

Where the vendee had no notice of a previous act of bankruptcy by the 
vendor, or of his Iniiention to go into bankruptcy, a bona fide conveyance 
of property for an adequate consideration, more than two months before 
the debtor filed his petition, is not volid, though the vendor was in fact 
insolvent at the time. Bennett v. Mitchel, 6 Law Rep. 16; 7 Fed. Cas. 
462 (1842). 

A man who believed himself solvent pledged his property to another 
whose money he had unlawfully used. It was held that such a transaction 
was not a preference under the Act of 1867, and that money paid to re- 
deem the property thus pledged could not be recovered by the assignee 
in bankruptcy. Jenkins v. Meyer, 2 Biss. 303; 13 Fed. Cas. 529. 

It is not a fraud within the meaning of the Act of 1867 (section 5021, R. 
S.), to endeavor to secure a bona fide debt from a creditor in embarrassed 
circumstances. In re Bonsfield & Poole M. Co., 16 N. B. R. 489; 3 Fed. 
Cas. 1013. 

" Reasonable Cause to Believe." 

Judge Lowell held under the Act of 1867 that the illegality of a prefer- 
ence depended upon the actual knowledge of the creditor. Peckham v. 
Cozzens, 6 Fed. Rep. 598. 

Judge Dillon affirmed a decision by the register that the word " knowl- 
edge " in section 35 of the Act of 1867, as amended, means actual knowl- 
edge, and not such as is to be inferred from notice of a state of facts that 
should put the person on inquiry. In re Hauck et al., 17 N. B. R. 158; 11 
Fed. Cas. 831. 

To defeat a preference the creditor must have knowledge of such facts 
as are calculated to produce a reasonable belief of the debtor's insolvency. 
It is not sufficient that he have cause to suspect simply. Claridge v. Kul- 
mer et al., 1 Fed. Rep. 399. 

It is immaterial what a creditor thinks or knows of his debtor's inten- 
tions if he has reasonable cause to believe that he is insolvent when he 



Pkefekbnces. 375 

takes a preference from him. Webb v. Sachs, 4 Saw. 168; 29 Fed. Cas. 
523. 

It was held, under the Act of 1867, that a creditor who held protested 
paper of the bankrupt at the time he received the reference should be 
presumed to have knowledge of the Insolvency. Swan et al. v. Robinson, ' 
5 Fed. Rep. 287. 

" Reasonable cause to believe " means a state of facts or circumstances 
which would lead any prudent man to the making of Inquiries. In re 
McDonough, 3 N. B. R. 221; 16 Fed. Oas. 68. 

The question to be answered as to a preferred creditor is whether he 
had reasonable cause to believe the debtor insolvent, not what he did 
believe. Hall v. Wager et al., 3 Biss. 28; 11 Fed. Cas. 271. 

Security may be enforced although the debtor was in fact insolvent at 
the time it was given, and although it was given out of the ordinary 
course of business, if the creditor had no reasonable cause to believe the' 
debtor insolvent. So held under the Act of 1867. Lee v. Franklin Ave. 
German Sav. Inst, et al., 3 N. B. R. 218; 15 Fed. CJas. 155. 

Knowledge of the law^ by a preferred creditor is not necessary to avoid 
the preference, if he knows the insolvency of the debtor, or such facts as 
should put him upon his inquiry. Lloyd v. Strowbridge, 16 N. B. R. 197; 
15 Fed. Cas. 731. 

Parties having knowledge of the insolvency of a debtor are bound to 
inform themselves whether or not the condition continues, and an 
erroneous belief that tBe debtor has settled with his other creditors will 
not validate a transfer -which amounts to a preference. Curran et al. v. 
Hunger et al., 6 N. B. B. 33; 6 Fed. Oas. 982. 

It was held not to be a fraudulent preference where a debtor gave a 
mortgage to secure a prior loan, when there was no reason at the time 
to suppose that the debtor would not be able to pay his liabilities. Nash 
V. LeClercq et al., 17 Fed. Oas. 1171. 

It constitutes reasonable cause to believe a debtor insolvent that the 
creditor knows that he has failed to pay its commercial paper at maturity. 
Warren et al. v. Tenth Nat. Bank et al., 10 Blatchf. 493; 29 Fed. Oas. 287. 

A bank had received checks which were dishonored when presented at 
the bank on which they were drawn. It was held that this put the bank 
on inquiry as to the solvency of the drawers. Warren et al. v. Tenth 
Nat. Bank et al., 5 Ben. 395; 29 Fed. Oas. 284. 

A creditor having knowledge that his debtor was unable to pay his debts 
at maturity is put upon his inquiry at once, and, if he receives a prefer- 
ence, must surrender the property so received to the assignee. In re 
Forsyth et al., 7 N. B. R. 174; 9 Fed. Cas. 465. 

One member of an insolvent firm was president, and another cashier of 
a bank. Their knowledge of the insolvency of the firm was held to be 
knowledge of the bank. Nesbit v. Macon B. & T. Co., 12 Fed. Rep. 686. 

" A creditor may be said to have reasonable cause to believe his debtor 
to be insolvent when such a state of facts is brought to his notice respect- 
ing the affairs and pecuniary condition of his debtor * * * as would 



376 The Bankruptcy Law. 

lead a prudent business man to the conclusion that his debtor is unable to 
meet his obligations as they mature in the ordinary course of business." 
Buchanan v. Smith, 16 Wall. 277'. 

A party cannot be said to have reasonable cause to believe that his 
grantor or mortgagor is insolvent unless such was the fact; but if it 
appears that the party making the conveyance was actually insolvent, 
and that the means of knowledge upon the subject were at hand, the 
party receiving the assignment and omitting to make the inquiries should 
be held to have reasonable cause to believe that the grantor was insolvent. 
Scammon v. Cole, 5 N. B. E. 257; 21 Fed. Cas. 627; 3 N. B. R. 393 (1871); 
21 Fed. Oas. 632 (1869). 

The execution creditors knew that their debtors had previously com- 
promised with creditors at forty-five cents on the dollar. Held, that this 
did not constitute reasonable cause to believe that they intended to give 
a preference by suffering an execution to be levied upon their property. 
Warren et al. v. Tfenth Nat. Bank et al., 5 Ben. 395; 29 Fed. Oas. 284. 

A client is chargeable with knowledge possessed by his attorney of facts 
which would make the collection of a debt a preference. Mayer v. Her- 
mann, 10 Blatchf. 256; 16 Fed. Cas. 1240. 

To defeat a conveyance by an insolvent debtor it is not necessary that 
the creditors should have absolute knowledge that their debtors were in- 
solvent nor even that they should have had any belief on the subject It 
is only necessary that they should have had reasonable cause to believe 
that such was the fact; and they must be considered to have had 
reasonable cause when a state of facts was brought to their notice as 
would have led prudent business men to conclude that their debtors 
could not meet their obligations. Toof v. Martin, 13 Wall. 40. 

The court concurred in the decision in Jones v. Howland, 8 Mete. 377, 
as follows. " That though insolvency in fact exists, yet if the debtor 
honestly believes he shall be able to go on in his business and with such 
belief pays a just debt without a design to give a preference, such pay- 
ment is not fraudulent though bankruptcy should afterward ensue; and 
on the other hand, if the debtor being insolvent and knowing his situation 
and expecting to stop payment shall then make a payment or give security 
to a creditor for a just debt with a view to give him a preference over the 
general creditors, such payment or giving security is fraudulent as against 
the creditor; and property that is transfen-ed in making such payment or 
giving the security may be recovered by his assignee and the debtor will 
not be entitled to a discharge under the statute. It rests upon the intent 
with which the act was done, and the intent is to be proved as a fact 
either by direct evidence or as the necessary and certain consequence of 
other facts clearly proved." Morgan et al. v. Mastick, 2 N. B. R. 521; 17 
Fed. Cas. 752. 

A client is chargeable with the knowledge of his attorney as to the 
insolvency of a debtor when the attorney takes a warrant in his own 
name, and enters judgment thereon. Vogle v. Lathrop, 4 N. B R 439- 28 
Fed. Oas. 1246. 



Pkefeeences. 21/7 

An attorney who had knowledge of the defendant's insolvency defended 
a suit on a just debt. Later, as attorney for another creditor, he obtained 
a judgment by default against the same debtor. Held, that his knowledge 
of the debtor's insolvency was chargeable to the plaintiff in the second 
action, and that the judgment in that case amounted to a preference. 
Wight V. Muxlow et al., 8 Ben. 52; 29 Fed. Oas. 1174. 

The words " knowing," and " having reasonable cause to believe," are 
considered In the cases cited. Singer v. Sloan et al., 3 Dill. 110; 22 Fed. 
Cas. 201; s. c, 11 N. B. R. 433; 22 Fed. C^s. 202. 

The renewal of commercial paper by a merchant carrying on a large 
business, or the payment under peculiar circumstances at a large discount, 
does not convey notice of insolvency. Golson v. NeihofC, 2 Biss. 434; 10 
Fed. Cas. 569. 

A creditor who has commenced an action on the commercial paper of a 
trader is chargeable with reasonable cause to believe that the debtor is 
Insolvent. Dunning v. Perkins, 2 Biss. 421; 8 Fed. Cas. 104. 

The existence of a panic may, of itself, afford reasonable cause to be- 
lieve debtors who are known to be in embarrassed circumstances to be 
insolvent. In re Clarke et al., 2 Hughes, 405; 5 Fed. Cas. 939. 

It was held necessary in order to set aside a preference under the Act 
of 1867 that the debtor had reasonable cause to believe that a fraud on the 
Bankrupt Act was intended. Castle v. Lee, 11 N. B. B. 80; 5 Fed. Cas. 
281. 

Notice to the creditor of an act of bankruptcy does not vitiate a con- 
veyance made to him except so far as it tends to charge him with reason 
to believe that the transfer was a fraud on the Bankrupt Act. Catlin v. 
Hoffman, 2 Saw. 286; 5 Fed. Oas. 307. 

A contingent Interest in an estate of a decedent became absolute in 
A. B. O. after his bankruptcy. The executor drew a check for the money 
and gave it to A. B. 0:'s attorney, who delivered It to A. B. O. The 
attorney had knowledge of his bankruptcy. It was held that the exec- 
utor had constructive knowledge of the bankruptcy by reason of the 
actual knowledge of his attorney, and that the assignee in bankruptcy was 
entitled to a decree against the bankrupt and the executor. Beecher v. 
Gillespie et al., 6 Ben. 356; 3 Fed. Cas. 57. 

Held, that the knowledge of an attorney of the Insolvency of a debtor 
against whom he procures a judgment by default is chargeable to his 
client, who was the plaintiff in such action. Rogers v. Palmer, 102 V. S. 
363. 

A married woman who engages in business for herself, and intrusts the 
management to her husband, is chargeable with his acts, knowledge, and 
intentions respecting such business. Graham v. Stark et al., 3 Ben. 520; 
10 Fed. Gas. 939. 

Actions to Set Aside Preferences, Etc. 
An assignee may recover payments made in fraud of the Bankrupt 
Act. Morgan et al. v. Mastick, 2 N. B. R. 521; 17 Fed. Oas. 752. 



378 The Bankeuptct Law. 

In the case cited, the provisions in the Bankrapt Act of 1867 which 
authorized the assignee to recover unlawful preferences were held not to 
be penal in their nature. Tinker v. Van Dyke et al., 14 N, B. R. 112; 23 
Fed. Cas. 1297. 

A preference of a bona fide creditor made more than four months before 
commencement of proceedings in bankruptcy cannot be attacked by the 
assignee. Shearman v. Bingham, Holmes, 272; 21 Fed. Cas. 1212 (187.3). 

The insolvent debtor is a necessary party to a suit by an assignee to set 
aside a fraudulent preference. Loving v. Arnold, 84 Fed. Rep. 214. 

An assignee cannot set aside a settlement made by a bankrupt less than 
four months before the adjudication by which a bankrupt returned goods 
fraudulently obtained by him. Montgomery v. Bucyrus M. W., 92 U. S. 
257. 

Held, under the Act of 1867, that an assignment by an insolvent debtor 
of all his property for the benefit of his creditors is not fraudulent. In 
this case the assignment was made six months before the filing of the 
petition in bankruptcy, and it was held that the assignee in bankruptcy 
could not recover the assigned property. Mayer v. Helman, 91 U. S. 496. 

A suit to recover money paid to a creditor of a firm under circumstances 
amounting to a preference must be brought by the assignee of the firm, 
and not by the assignee of an individual partner. Amsinck v. Beau, 22 
Wall. 395. 

The bank held stock in an insolvent corporation, and took security 
from it for money due and for advances, and thereafter made advances 
on such security. Held, that the bank was bound to account to the un- 
secured creditors for their pro rata proceeds of such securities. Stout v. 
Yaeger Mill Co., 18 Fed. Bep. 802. 

An assignee in bankruptcy may recover money paid by a debtor whom 
the defendants have reasonable cause to believe to be insolvent, or ob- 
tained by them on a judgment within four months next preceding the 
commencement of the bankruptcy proceedings. West Phil. Bank v. 
Dickson, 95 U. S. 180. 

The day on which the petition in bankruptcy is filed should be excluded 
in computing the four months under the Act of 1867. Dutcher v. Wright, 
94 U. S. 553. 

The day on which a petition in bankruptcy is filed must be excluded in 
computing the period of four months within which an assignment of 
property is void under certain circumstances. Ibid. 

An insolvent debtor transferred certain securities to a creditor with 
intent to give him a preference, the latter having reasonable cause to be- 
lieve that the debtor was insolvent. Held, under the facts of the case, that 
the assignee in bankruptcy could recover the securities or their value from 
such creditor. Merchants' Nat. Bank v. Cook, 95 U. S. 342. 

When an assignee has elected not to attack a deed of the bankrupt, he is 
estopped by such election from afterward proceeding to set it aside. 
Lauglin v. Dock Co., 65 Fed. Rep. 

Held, that in an action by an assignee in bankruptcy to recover property 



Peefeeenoes. 279 

under section 30 of the Act of 1807, he must prove that the transfer was 
made with intent to give a preference, and that the creditor has reasonable 
ground to believe his debtor to be Insolvent. Mays v. Fritton, 20 Wall. 414. 

A debtor in Georgia conveyed property to his children. It constituteil 
only a small part of the grantor's estate, and there was no fraud and no 
purpose to hinder or delay creditors. Held, that an assignee subsequently 
appointed in banliruptcy proceedings could not impeach the conveyance. 
Adams v. Collier, 122 U. S. 82. 

An assignee in banliruptcy can recover from an acceptor the amount of 
a draft drawn by a creditor with intent to give a preference. Fox v. 
Gardner, 21 Wall. 475. 

In this case the petition was filed at 9 a. m. on the 14th of March, 1874. 
It was held that a payment made on the 14th of November, 18(73, was not 
made within four months. Warren et al. v. Garber, 1 Hughes, 367; 20 
Fed. Gas. 275. 

One partner of a firm died, and within four months the remaining part- 
ners, but not the firm, were individually adjudged bankrupts. Held, that 
the assignee cannot recover any property previously transferred by the 
firm to a firm creditor by way of preference or otherwise. Withrow v. 
Fowler, 7 N. B. R. 239; 30 Fed. Oas. 402 (1892). 

Certain shares of stocli were delivered to the creditor under circum- 
stances which constituted a preference. Held, that the assignee could not 
retain moneys paid by the preferred creditor to increase the value of the 
stock, nor actual advances made by him which increased the assets of the 
bankrupt's estate. Swan et al. v. Robinson, 5 Fed. Rep. 287. 

Until after the passage of the Bankrupt Act, nothing but fraud in ob- 
taining a preference could invalidate it, no matter in what manner 
obtained. In re Wynne, Chase, 227; 4 N. B. R. 23; 30 Fed. Gas. 752 (1868). 

The bankrupt had conveyed certain property to his wife, through a third 
person, when he was insolvent. Certain money belonging to the wife's 
separate estate had been used in building and furnishing a house upon 
the land conveyed. It was held that the conveyance must be set aside, 
but that she was to be regarded as a preferred creditor as to the money 
of her own expended upon the property. In re Wheeler et al., 5 Fed. Rep. 
299. 

The assignee in bankruptcy brought a suit to set aside a sale, and 
enjoin the vendee from prosecuting an action in a state court against the 
attaching creditor of the bankrupt vendor for the taking of the goods sold. 
As it appeared that the assignee already had possession of the property, 
the court said: " The bare fact that the sale was void is no reason for 
setting it aside as long as the assignee has the property and all that he 
could obtain in any event by the most successful litigation." Maine v. 
Bromley et al„ 6 Fed. Rep. 477. 

A creditor lends money to a debtor believing him solvent, taking as 
security what may be regarded as a chattel mortgage. He takes posses- 
sion of the mortgaged goods after he has reason to believe the debtor 
Insolvent, both transactions being within four months of the adjudication 



380 The Bankbuptct Law. 

of the debtor a bankrupt. Held, that the assignee in bankruptcy could 
not recover the goods so taken. Sherman r. Traders' Nat. Bank, 9 Biss. 
216; 21 Fed. Cas. 1282 (1879). 

Held, that an assignee in bankruptcy seeking to set aside a transaction 
on the ground that it constitutes an illegal preference, must show by a 
preponderance of testimony that the debtor was Insolvent, or in con- 
templation of insolvency; that the security was intended to give a prefer- 
ence, and that the creditor had reason to believe the debtor to be insolvent, 
and that the security was designed as a preference. Crane et al. v. 
Penny et al., 2 Fed. Rep. 187. 

In an action by an assignee in bankruptcy to recover a jmyment alleged 
to have been a fraudulent preference, the court said: " It was necessary 
for the plaintiff to prove inter alia that the defendants had reasonable 
cause to believe that the firm of A. B. & Oo. was insolvent, and also that 
the defendants knew that a fraud on the Bankrupt Act was intended by 
the payment to them. These are independent facts, and both must concur 
to sustain the verdict." Metcalf v. OflScer et al., 2 Fed. Rep. 640. 

The grantee In a conveyance made by an insolvent debtor took the title 
in trust for a third person, and derived no profit from the transaction, 
and did not share in the bankrupt's fraudulent intent. Held, that he was 
not liable to the grantor's assignee in bankruptcy for the value of the land. 
AUeman v. Kneedler, 2 Fed. Rep. 671. 

Payments made by an insolvent debtor to an attorney for necessary 
services actually rendered cannot be recovered by the assignee in bank- 
ruptcy. Triplet v. Hanley et al., 1 Dill. 217; 24 Fed. Oas. 203. 

" On a petition in bankruptcy being filed against the bankrupts, who 
were merchants, they consulted the defendants as attorneys and agreed 
to pay, or did pay them in cash, merchandise and notes over $1,500 for 
advice and services in opposing the petition. The bankrupts were known 
to the attorneys to be hopelessly insolvent and to have committed acts of 
bankruptcy, and they knew or must be taken to have known that it was 
useless to oppose proceedings or to incur expense in doing so. We held 
that the assignee is entitled to judgment against the defendants for the 
amount thus paid to them less the sum of $200, that being shown to be a 
fair compensation for all necessary advice and expenditure and services." 
Ibid. 

A creditor will be compelled by proceedings in bankruptcy to return 
money and property received from his debtor when he knew him to be 
insolvent; and if he fails to surrender it, he must pay the costs of the 
proceedings by the assignee, and, under the Act of 1867, could not prove 
his claim. In re Forsyth et al., 7 N. B. R. 174; 9 Fed. Cas. 465. 

In the case of a mortgage made in good faith within four months before 
the commencement of proceedings in bankruptcy to secure a present loan, 
it was held that to" invalidate it there must be proof that the mortgagee 
knew that it was made to give him an advantage over other creditors. 
Campbell v. Waite et al., 9 Ben. 166; 4 Fed. Oas. 1205. 

Judge Lowell used the following language: " A preference is valid at 



Peefeeences. 281 

common law and in equity, and Is voidable only by an assignee in bank- 
ruptcy, and only when proceedings in banliruptcy are begun within four 
months, or, according to another construction of the statute, within six 
months, after the act is committed." In accordance with this principle, 
it was held that the payment of a firm debt does not become a voidable 
preference unless the partners both become bankrupt within the time 
limited by the statute. Forsaith v. Merritt et al., 1 Low. 336; 9 Fed. Cas. 
46i. 

Under the Act of 1867, it was held necessary for the assignee to show 
that a preference was given within four months before the filing of the 
petition to enable him to recover back the money paid. Hubbard et al. 
V. Alaire Works, 7 Blatchf. 284; 12 Fed. Cas. 776. 

Sections 35 and 39 of the Act of 1867 are to be construed together, and 
were held to impose a limitation of four months before the filing of the 
petition in bankruptcy in proceedings to avoid preferences. Collins v. 
Gray et al., 8 Blatchf. 483; 6 Fed. Cas. 125. 

A creditor who held several notes of the bankrupt exchanged them for 
notes of like amount given by the firm of which the bankrupt was a 
partner. The court said that while this might be a fraud upon joint 
creditors, it could not be set aside as the bankraptcy of the firm occurred 
more than four months later. In re Lane et al., 2 Low. 333; 14 Fed. C&s. 
1070. 

One partner transferred his interest in the partnership effects to his 
partner who assumed all the debts of the firm. Five days later, the latter 
filed a petition in bankruptcy. The transfer was held to be void. In re 
Byrne, 1 N. B. E. 464; 4 Fed. Cas. 951. 

Where the condition of Insolvency exists it is not obviated by an agree- 
ment of creditors to extend the time of payment. Rison v. Knapp, 1 Dill. 
187; 20 Fed. Cas. 835. 

An assignee in bankruptcy brought a suit in equity to recover money 
fraudulently paid by the bankrupt to obtain the signatures of certain 
creditors to a composition. The court held that. the suit could be main- 
tained, though he might have brought an action at law. Bean v. Brook- 
mire et al., 1 Dill. 151; 2 Fed. Cas. 1130. 

On the same day that he filed his petition in bankruptcy, the bankrupt 
mortgaged his property to a creditor, and the creditor assigned to other 
parties all his interest in the property. It was held that it was immaterial 
whether the first grantee did or did not know that a fraudulent preference 
was intended, if it were actually given, and as the second grantee had 
notice that the grantor had failed, and received it only as collateral 
security for old claims, it could be recovered by the assignee in bank- 
ruptcy of the first grantor. Morse v. Godfrey et al., 3 Story, 364; 17 Fed.' 
Cas. 854 (1844). 

A fraud by a bankrupt does not operate as an estoppel upon his assignee 
In bankruptcy, but a fraud that he can act upon must be one injurious to 
creditors. Mattox v. Baker, 2 Fed. Rep. 455. 

A few days after their suspension, the bankrupts, V. & B., who were 



282 The Bankeuptct Law. 

private bankers, left a draft with P. & S., who were also private bankers 
at the same place, for collection. P. & S. sent it to New York, and upon 
learning of its payment there, paid the proceeds to one of the bankrupt 
firm. The assignee brought suit to recover the amount of the draft from 
P. & S. under the second clause of section 35, Act of 1867. Held, that he 
could not recover. Borland et al. v. Phillips et al., 2 Dill. 283; 3 Fed. Cas. 
909. 

Section 39 of the Act of 1807 does not give the assignee any greater 
rights to recover back money than he has under section 35. Hubbard et 
al. V. Alaire Works, 7 Blatchf. 284; 12 Fed. Cas. 776. 

In an action by an assignee in bankruptcy under section 35 of the Act of 
1867 to recover property fraudulently conveyed, the assignee can only 
recover on the case stated in his pleading, and not on the ground that the 
conveyance was void at common law or under the statutes of the state. 
Cragin v. Carmichael et al., 2 Dill. 519; 6 Fed. Cas. 706. 

[For a large number of additional notes pertinent to this section, see S§ 3, 67 and 70.] 



CHAPTEE 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 b© 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. 

An assignee failing to deposit money as ordered by the court is liable for 
interest thereon. In re Newcomb, 32 Fed. Rep. 826. 

It was held, under the Act of 1841, that assignees were chargeable with 
Interest on money not paid into the registry of the court within sixty 
days after it was received. In re Thorp, 4 N. Y. Legs. Obs. 377; 23 Fed. 
Cas. 1153. 

ESPENSES. 

§ 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 dis- 
approved by the court. If approved, they shall be paid or allowed 
out of the estates in which they were incurred. 

Where the assignee Is an attorney-at-law, he cannot claim professional 
compensation for the ordinary duties of his trust. In re CJook, 17 Fed. 
Rep. 328. 

A marshal having served notices in proceedings brought by an officer of 
a corporation in its name, applied to the bankrupt court for an attachment 
to compel such officer to pay his fees. The application was denied, and 
it was held that he must proceed by an action at law. In re Atlantic M. 
L. I. Oo., 9 Ben. 337; 2 Fed. Cas. 169. 

Charges for the employment of a bookkeeper will only be allowed so far 
as they were necessary in conducting the business of the estate. Where 
charges are made for a bookkeeper employed partly in the personal busi- 
ness of the assignee and partly in conducting the business of the bank- 
rupt's estate no apportionment will be approved without distinct proof of 
the necessity and reasonable value of the services rendered to the estate. 
In re Barnes, 18 Fed. Rep. 158. 



284: The Bankruptcy Law. 

Chai-ges for rent of offices used by the assignee will only be allowed so 
far as they were necessary in the conduct of the business of the estate. 

Ibid. 

The court allowed the expenses of the assignee in finishing the goods for 
sale when it was clear that the estate would be benefited thereby and 
that the work would be done in a reasonable time. Foster v. Ames, 1 Low. 
313; 9 Fed. Cas. 527. 

Under the Act of 1867 an assignee was only allowed to charge for pro- 
fessional and clerical services upon an allowance by the court. In re 
Noyes, 6 N. B. R. 277; 18 Fed. Cas. 465. 

An allowance for services will only be made upon the presentation of a 
bill after they have been rendered. In re Hughes, 2 Ben. 85; 12 Fed. Cas. 
S29. 

Fees for the services of an attorney may be allowed but not without 
satisfactory evidence showing that they were actually rendered and that 
there was a necessity for legal aid. In re TuUy, 3 N. B. R. 82; 24 Fed. 
Cas. 315; In re Cook, 17 Fed. Rep. 328. 

It is discretionary with the court whether it shall allow the assignee 
additional compensation for his services as attorney where such services 
were rendered in preserving the estate for the creditors. In re Welge, 1 
Fed. Rep. 216. 

It was held, under the Act of 1867, that where creditors brought a suit 
against the assignee and were defeated and the estate was insufficient 
to pay both their costs and the costs and counsel fees of the assignee, the 
latter was entitled to preference, notwithstanding the creditors proceeded 
in good faith. Gazin v. Norton, 38 Fed. Rep. 200. 

A creditor on whose petition a debtor is adjudged bankrupt is entitled to 
receive the amount paid his attorney for prosecuting In the proceedings 
out of the assets of the estate before a dividend is declared; but he is not 
entitled to expenses for time and money spent in traveling to and from the 
court and attending the trial. In re King, 4 Biss. 319; 14 Fed. Oas. 503. 

[Notes respecting the expenses of administering estates will be found under section 64.] 

Provable Claims. 

§ 63. Debts Which May be Proved.— (a.) Debts of the bankrupt 
may be proved and allowed against his estate wMch are (1) a fixed 
liability, as evidenced by a judgment or an instrument in writing, 
absolutely omng 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 bankrupt who was at the time 
of the filing of the petition against him plaintifE in a cause of action 
which would pass to the trustee and which the trustee declines to 



Estates. 285 

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 consideration of the bankrupt's application for a dis- 
charge, 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 
application to the court, be liquidated in such manner as it shall 
direct, and may thereafter be proved and allowed against his estate. 

Claims Whioh. Caa be Proved. 

A claim for Infringement of patent is provable in bankruptcy. In re 
Boston Iron Worlis, 29 Fed. Rep. 783. 

Liability for stock subscription is a provable debt in bankruptcy against 
the subscriber. Glenn v. Abell, 39 Fed. Rep. 10. 

Rent accrued at date of filing the petition may be proved as a debt 
against the estate. From that time to the surrender of the possession, 
the assignee should pay the rent. In re Hufnagel, 12 N. B. R. 554; 12 Fed. 
Cas. 819. 

Under the circumstances of the case cited the landlord was permitted 
to prove against the estate of his.tenant's assignee in bankruptcy damages 
for the breach of the covenant of the lease to pay rent subsequent to 
adjudication. In re Orne, 12 Fed. Rep. 779. 

A debtor in contemplation of bankruptcy procured a friend to buy up a 
part of his indebtedness at ten cents on the dollar. Held, that the cred- 
itors could prove up such claims against the bankrupt's estate, notwith- 
standing these transactions. In re St. Ins. Co., 16 Fed. Rep. 756. 

The bankrupts themselves, as administrators of an estate, may prove 
an equitable debt arising from a loan of funds from the estate of their 
decedent, notwithstanding the loan was unlawfully made; and the amount 
for which the administrators are liable should first be ascertained by 
a proceeding in probate. Warner v. Spooner, 3 Fed. Rep. 890. 

Dealing in " puts " being held in Illinois to be gaming, money actually 
paid to the bankrupt for " puts " was held to be recoverable on proof 
of claim in bankruptcy. Ex parte Young, 6 Biss. 53; 30 Fed. Oas. 828 
(1874). 

The United States court for Maine allowed the proof of a claim for liquor 
sold to the bankrupt in New York to be resold by the bankrupt in Maine 
in violation of the prohibitory liquor law, notwithstanding the claim 
could have been recovered in the courts of Maine. In re Murray, 1 
,Hask. 267; 17 Fed. Cas. 1041. 

The bankruptcy court has nothing to do with rent which accrued after 



286 The Bankkuptcy Law. 

the bankruptcy. For that which accrued before the commencement of 
proceedings, the same being a provable debt and secured by hen, the 
court should entertain jurisdiction. Wylle t. Smith, 2 Woods. 673; 30 
Fed. Gas. 782 (1875). 

Every debt which a person can, either in his own name or in the name 
of any other person, recover at law or in equity is a provable debt in 
bankruptcy. In re Jordan et al., 2 Fed. Eep. 319. 

A balance found due on accounts curaent between merchants is a debt 
that may be proved in bankruptcy. In re Stanton, 22 Fed. Gas. 106i. 

Where a dividend has been declared in favor of a creditor, and he has 
received it, or has a present right to receive it, under a trust for the 
benefit of creditors prior to the filing of a petition in bankruptcy, he can 
prove the full amount of his claim against the estate of the bankrupt. 
In re Hamilton, 1 Fed. Rep. 800. 

A debt arising from the fraud or embezzlement of the debtor is prov- 
able in bankruptcy. In re Rundle, 2 N. B. R. 115; 1 Ghi. Leg. News, 30; 
21 Fed. Gas. 5 (1868). 

The purchaser of claims against a bankrupt who bought them with the 
intention of stopping the proceedings, and to give the debtor further 
time, may prove such claims and participate in the dividends. It is 
necessary, however, that he should take an assignment; a receipt of pay- 
ment is not sufficient. In re Strachan, 3 Biss. 181; 23 Fed. Gas. 212. 

Subscriptions in aid of a college may be proved in bankruptcy where 
the donee had performed its part of the undertaking. Sturges v. Colby 
et al., 2 Flip. 163; 23 Fed. Gas. 308. 

A wife may share in the estate of a bankrupt husband for money that 
she had allowed him to use in his own business. Van Kleeck v. Miller 
et al., 19 N. B. R. 484; 28 Fed. Gas. 1025. 

It was held in Massachusetts that a woman who lived in that state 
separate and apart from her husband could become guarantor as to a 
debt not connected with her business, and that the debt could be proved 
against her in bankruptcy. In re Ruddell, 2 Low. 124; 20 Fed. Gas. 1305. 
Held, under section 19 of the Act of 1867, that a bill for merchandise 
might be proved, although the debt were contracted by fraud and would 
not be covered by a discharge under section 83. In re Rosenberg, 3 Ben. 
14; 20 Fed. Gas. 1194. 

The foundation of voluntary proceedings is indebtedness due and pay- 
able under the Act against the debtor. Whatever debts may be proved 
in voluntary, may be proved in involuntary cases. In re Nickodemus, 2 
Ohi. Leg. News, 49; 18 Fed. Gas. 222. 

After, and not before, the original debt has been proved, the creditor 
may prove the costs of an attachment suit commenced in good faith, 
and with no intention to defeat the Act, before the filing of the petition; 
but costs incurred after the commencement of the bankruptcy proceed- 
ings were disallowed. In re Preston, 5 N. B. R. 298; 19 Fed. Gas. 1289. 

The claimant had entered into a contract to serve the bankrupt com- 
pany for ten years, and had taken a bond in the sum of $10,000 for the 



Estates. 2S7 

performance of the contract on the part of the corporation. It was held 
that he could have his damages proved and allowed against the estate of 
the company in bankruptcy, and that it was no objection that they were 
difficult of assessment. Ex parte Pollard, 2 Dow. 411; 19 Fed. Gas. 942. 

A debt existing at the time of the adjudication, though not then due, 
was held to be provable under the Act of 1867. Phelps v. Olasen, Woolw. 
204; 19 Fedj, Gas. 445. 

A creditor was allowed to prove a claim in bankruptcy that he had 
set up in defense to an action brought against him by the bankrupt, in 
which action he offered no evidence in support of his defense, and the 
bankrupt recovered judgment. In re People's Safe & Savings Inst, 10 
Ben. 38; 19 Fed. Gas. 212. 

The father-in-law of the bankrupt undertook to buy up all of the 
claims against him to prevent further proceedings. Failing in this, he 
offered to prove up one of the claims that he had purchased, and the 
court allowed him to prove it. In re Pease et al., 6 N. B. R. 173; 19 Fed. 
Gas. 67. 

A bankrupt having been discharged by a composition, subsequently gave 
a note to one of his creditors for his old debt. Having contracted new 
debts, and gone into bankruptcy again, it was held that the former debt 
was discharged by operation of law, and hence was a sufficient considera- 
tion for the new note; and that the holder of the note should participate 
in dividends equally with new creditors. In re Merriman, 18 N. B. R. 411; 
17 Fed. Gas. 131. 

An equitable debt was held to be provable in bankruptcy, under the Act 
of 1867. In re Blandin, 1 Low. 543; 3 Fed. Gas. 669. 

The plaintiff deposited some wheat with the bankrupt before the filing 
of his petition, and the latter converted it to his own use. Such a debt 
is a claim or demand provable against the bankrupt's estate, and for 
which the assignee, as such, cannot be sued, except the same be re- 
jected by the district judge on objections by the assignee, as prescribed 
in section 23 of the Bankrupt Act of 1867. Adams v. Meyers, 1 Saw. 396; 
1 Fed. Gas. 137. 

The wife of the bankrupt had received money from her father's estate 
and placed it in her husband's hands. Subsequently she drew all but 
$700. Under the circumstances of the case, it was decided that she could 
prove a claim for that amount, but without interest. In re Bigelow et 
al., 3 Ben. 198; 3 Fed. Gas. 347. 

An insuree of a fire insurance company is entitled to share in the divi- 
dends for any loss occurring before the final dividend, notwithstanding 
the loss occurred after adjudication. In re American P. G., etc., Ins. Cto., 
12 N, B. R. 56; 1 Fed. Ca,s. 716. 

An insurance policy contained a covenant to repay part of the premium 
in the event of the cancellation of the policy. A claim founded upon 
this covenant was held provable in bankruptcy. In re Independent Ins. 
Co., 2 Low. 187; 13 Fed. Gas. 20. 

An administrator who had used the funds of the estate In business of 



388 The Bankeuptcy Law. 

the firm died, and the firm became bankrupt. Thereafter an adminis- 
tratrix de bonis non was appointed. It was held that she could prove 
the claim against the separate estate of the former administrator, and 
against the firm. In re Jordan et al., 2 Fed. Eep. 319. 

Where the funds of an estate were used by a partnership of which the 
administrator was a member, with the knowledge of the other partners, 
it was held that the firm and its members became jointly aqd severally 
liable for such funds. Ibid. 

A partner who has received a preference may nevertheless be allowed 
to make proof of firm debts that he has paid or assumed. In re Stephens, 
3 Biss. 187; 22 Fed. Cas. 1275. 

A firm may prove against the separate estate of one of the members 
a claim for property of the firm fraudulently converted by such partner; 
but to warrant such jproof there must be something more than a mere 
abstraction of funds. In re Hamilton, 1 Fed. Rep. 800. 

A firm indorses the note of one of its members and becomes bank- 
rupt before its maturity. Held, that no protest or notice of protest is 
necessary to make the note provable in bankruptcy against the firm, on 
the ground that the knowledge of the maker is notice to^ all the parties. 
In re Paul, 16 N. B. R. 476; 21 Fed. Cas. 30 (1877). 

A member of a former copartnership can prove a claim for the fraudu- 
lent misappr'opriation of firm funds as if no partnership existed. Sigsby 
V. Willis, 3 Ben. 371; 22 Fed. Cas. 112. 

The circuit court for the district of New York decided that the owner 
of several notes all made for firm debts, but some executed by the firm 
and Indorsed by the partners, and others made by the partners, may 
prove the former against the firm, and the latter against the individual 
assets. Mead v. National Bank of FayettevlUe, 6 Blatehf. 180; 16 Fed. Cas. 
1277. 

Whether or not there are any firm assets, a copartnership debt can be 
proved against a single member of the firm on his separate petition. In 
re Freear, 2 Ben. 467; 9 Fed. Cas. 738. 

A. held a note of a bankrupt firm, which it had secured by delivering 
to him notes of third persons, indorsed by the bankrupts, for an amount 
greater than the secured note. The firm, and the makei-s of the notes 
given as security, became bankrupts. The court decided that the holder 
might surrender the note of the bankrupt firm, and prove on their indoi-se- 
ments of the collateral notes for the amount of the debt of the bankrupts 
to him. He might also prove the full amount against the makers of the 
collateral notes, receiving in dividends only the amount due on the original 
note. Ex parte Farnsworth, 1 Low. 497; 8 Fed. Cas. 1055. 

The general rule in bankruptcy is that there can be no proof of claims 
between the joint and separate estate of partners, unless there is a sur- 
plus of the joint estate to be divided. "In re Lane et al., 2 Low. 333; 
14 Fed. Cas. 1070. 

A maiTied woman furnished the money which was her husband's con- 
tribution to the capital stock of a partnership. Under the terms of the 



Estates. 389 

partnership agreement, he received from the firm a note for the amount, 
and transferred It to her. Held, that she could prove the note as against 
her husband in bankruptcy, and participate in the dividends of his 
separate estate, but not in the firm estate. In re Frost et al., 3 N. B. R. 
736; 9 Fed. Cas. 967. 

Creditors filed separate proofs of the same debt against tvs^o former 
members of a copartnership, vrhich was the original debtor. A motion 
of the assignee that the proofs be stricken out was denied. In re Beers 
et al., 5 N. B. R, 211; 3 Fed. Gas. 64. 

When a member of a firm converts to its use funds which belong to a 
corporation Of which he was agent, and the misappropriation Is known 
to the firm, the claim of the creditor corporation may be proved both 
against the individual and the partnership assets in bankruptcy. In re 
Baxter, 18 N. B. R. 62; 2 Fed. Cas. 1044. 

A note signed by a firm and indorsed by one of the partners can be 
proved against the assets of both in bankruptcy. In re Bradley, 2 Biss. 
515; 3 Fed. Cas. 1135. 

The owner of negotiable paper who had purchased It after the com- 
mission of bankruptcy had been issued under the Law of 1800, may prove 
it under the commission, subject to all legal offsets. Humpfrles v. 
Blight's Assignee, 1 Wash. C. C. 44; 2 Fed. Cas. 875 (1803). 

Under the Act of 1800 It was held that where bankruptcy occurred 
between the making of a note and the time when it became payable, and 
the indorser took it up before the final discharge of the bankrupt maker, 
the indorser could prove it up under the commission. Baker et al. v. 
Vasse, 1 Cranch C. C. 194; 2 Fed. Cas. 480. 

H. & Co. held notes made by the bankrupts in pledge to secure a debt 
due to them from M. for a much smaller amount than their face value. 
Held, that they could prove up the full amount of the notes and receive 
dividends thereon to the extent of their debt which was secured by the 
notes. Bailey v. Nichols et al., 2 N. B. R. 478; 2 Fed. Cas. 381. 

The holder of a bill of exchange may prove his debt in bankruptcy 
against the drawer, acceptor, and the payee, and receive a dividend from 
all their estates until his debt is fully paid. If only one is a bankrupt, 
he njay prove his debt against him and proceed against the others at law. 
In re Babcock, 3 Story, 398; 2 Fed. Cas. 289 (1844). 

The holder of two drafts settled with the acceptor for 50 per cent., 
expressly reserving his rights against all other parties. The acceptor 
subsequently released the drawer from all liability to him. It was held 
that the holder could prove the whole amount of the drafts against the 
estate of the drawers in bankruptcy and receive dividends to the amount 
of the unpaid balance of 50 per cent. In re Baxter, 18 N. B. R. 497; 2 Fed. 
Cas. 1045. 

The holder for value of an accommodation bill of exchange before 
maturity is entitled to prove his claim in bankruptcy against all the pavtie? 
whom he could have sued on the bill. Downing v. Traders' Bank, 2 Dill. 
136; 7 Fed. Cas. 1008. 

19 



290 The Bankeuptcy Law. 

An accommodation acceptor of a bill drawn by the banlirupt made a 
partial payment to the holder after the bankruptcy of the drawer. Held, 
that the acceptance of this payment by the holder of the bill did not 
impair his right to prove his claim against the estate of the drawer in 
bankruptcy for the full amount due at the time of the adjudication. Ibid. 

Accommodation notes indorsed by the bankrupt had been deposited 
with a creditor as collateral security before they were due, and without 
notice that there was any defense. Held, that the creditor was a bona 
fide holder for value before maturity, and that the notes could be proved 
against the estate of the indorser in bankruptcy. Fogg v. Stickly, 11 N. 
B. R. 167; 9 Fed. Cas. 334. 

The holder of an indorsed note had received part payment from the 
indorser. He was allowed to prove the whole amount of the note against 
the maker in bankruptcy, the court holding that any surplus he received 
over the amount of the note, he held in trust for the indorser. In re 
EUerhorst et al., 5 N. B. B. 144; 8 Fed. Cas. 522. 

Held, that a creditor to whom property had been transferred to secure 
a debt on an extension of time to the debtor had a claim that might be 
proved in bankruptcy before the expiration of such time. Ecfort et al. 
V. Greely, G N. B. K. 433; 8 Fed. Cas. 279. 

Where promissory notes were hypothecated for value before maturity, 
the pledgee can prove them for their full amount against the makers in 
bankruptcy. If, however, such equities exist that the pledgor could not 
have proved them, then the pledgee can receive in dividends only the 
amount which they secured. Ex parte Kelty et al., 1 Low. 394; 14 Fed. 
Cas. 277. 

The agent of a company indorsed certain acceptances belonging to the 
company to the use of the bankrupt firm, of which he was a member. 
The latter indorsed the same, and had them discount it, making use of 
the proceeds. Held, that both the company and the bank which dis- 
counted the paper might prove claims in bankruptcy against the firm, 
and that the bank must give credit for whatever it received, and if it 
recovered the whole amount from the maker or acceptor of the paper, it 
should stand as trustee to the estate of the bankrupt for so much as it 
had obtained. In re Morse et al., 11 N. B. R. 482; 17 Fed. Cas. 850.- 

G. & H. had made notes which were Indorsed by the bankrupts. The 
makers (G. & H.) were adjudged bankrupts and effected a composition 
with their creditors for certain payments to be made in three, six, and 
nine months. The creditor was offered the composition notes, but re- 
fused to accept them. The indorsers having been adjudged bankrupts, 
the holder of the notes proved their claims for the whole amount against 
the estate of the indorsers. Later he accepted cash for the first note, 
which had fallen due, and the two other notes. A motion was made to 
reduce the proof of debt. The court denied the motion on the ground 
that the creditor had not received or become entitled to receive anything 
in part payment of the debt at the time of his proof against the estate of 
the indorsers. In re Heck et al., 19 N. B. R. 299; 12 Fed. Cas. 113. 



Estates. 391 

Held, that a bank could prove its claim directly against the company 
for moneys which a stockholder had fraudulently drawn out of the bank 
by collusion with the cashier, and given to the company. In re Eureka 
Mfg. Co., 1 Low. 500; 8 Fed. Oas. 832. 

A firm borrowed money and gave its note which was also signed by 
three persons, not members of the copartnership, as sureties. It was 
held that this could be proved against the joint estate of the firm in 
bankruptcy; but that another note which was signed by the members of 
tlie firm as individuals, and by three others, could not be proved as a 
claim against the firm. In re Holbrook et al., 2 Low. 259; 12 Fed. Oas. 317. 

The claim of an attorney for services rendered before adjudication 
must be proved up against the bankrupt in the usual form. The assignee 
may pay for services rendered after the adjudication, if they were prop- 
erly and necessarily rendered in the interest of the general creditors. In 
re Jay cox et al., 7 N. B. R. 140; 13 Fed. Gas. 398. 

It was held in Illinois that after the adjudication of the maker of a 
promissory note in bankruptcy, the holder could proceed at once against 
the indorser. The court so held, notwithstanding the contention of op- 
posing counsel that the holder should pursue the estate of the maker in 
bankruptcy, in analogy to the practice where the principal's estate is in 
the hands of a probate court. National Bank of Commerce v. Booth, 
5 Biss. 129; 17 Fed. Oas. 1202. 

Claims ■Which. Canuot be Proved. 

Held, under the Act of 1867, that a debt incurred after the commence- 
ment of proceedings could not be proved. In re Merrell, 19 Fed. Rep. 874. 

Held, that a tax is not a provable debt under the Act of 1867 (section 
5101, R. S.). In re Duryee, 2 Fed. Rep. sa 

Claims arising under a right of dower while the husband is still living 
were held not to be provable, under the Act of 1841. Riggin v. Magwire, 
15 Wall. 549. 

An engagement that left it uncertain whether an actual liability 
would ever arise between the parties was held not to be prova.ble under 
section 5 of the Act of 1841. Ibid. 

An assessor of internal revenue sought to collect from an assignee in 
bankruptcy taxes for selling goods of the bankrupt in the course of his 
trust. Held, that he could not recover. In re Whipple File Co., 1 Low. 
477; 29 Fed. Oas. 944. 

Under the Act of 1867 a broker was not allowed to prove a claim for 
losses which he had suffered on contracts made as the agent of the 
bankrupt, but in his own name, which contracts the bankrupt had refused 
to carry out. In re Smith, 6 Ben. 187; 22 Fed. Oas. 388. 

Costs and counsel fees Incurred and paid by the petitioning creditors 
are not a provable debt, and cannot be added to raise their claim to the 
Jurisdictional limit. In re Skelly, 3 Biss. 260; 22 Fed. Oas. 272. 

The claimant had taken an assignment of a proved claim as security 



393 The Bankruptcy Law. 

for an existing debt due to him from tlie creditor. Held, tliat he was 
not a purchaser for value, and could not prove the claim against the true 
owner. In re Sime et al., 3 Saw. 305; 22 Fed. Cas. 147. 

Where a creditor obtained judgment after the commencement of pro- 
ceedings in bankruptcy without leave of the court of bankruptcy, he 
cannot prove the claim founded upon such judgment. In re Maybln, 15 
N. B. B. 468; 16 Fed. Cas. 1221. 

A creditor had loaned money to the bankrupt to enable him to leave 
the state with intent to defraud his creditors. Held, that such a claim 
could not be proved. In re Hatje, 6 Biss. 436; 11 Fed. Cas. 823. 

The United States, in seeking to enforce a claim against a vessel, toot 
a release bond, and subsequently entered judgment on the same. It was 
held that it thereby waived its right to prove its claim in bankruptcy 
against the obligor. In re Mansfield, 6 N. B. R. 388; 16 Fed. Cas. 660. 

A petitioner in voluntary bankruptcy reported upon his schedule only 
two debts which were in the form of judgments, one for seduction and 
the other for the support of his bastard child. It was held that these 
were not debts within the first section of the Bankrupt Act of 1841. 
In re Cotton, 2 N. Y. Leg. Obs. 370; 6 Fed. Cas. 617 (1843). 

An obligation as surety on a bond was held not to be a liability within 
section 85 of the Act of 1867, prior to its forfeiture. Corbett v. Woodbury, 
5 -Saw. 403; 6 Fed. Cas. 531. 

A court of bankruptcy will not stay proceedings to enforce the pay- 
ment of alimony for the reason that it Is not a provable debt In re 
Lachemeyer, 18 N. B. R. 270; 14 Fed. Cas. 914. 

A party who purchased a note of the bankrupts for less than its face, 
acting as their agent, cannot prove the balance. In re Lathrop, 3 Ben. 
490; 14 Fed. Cas. 1170. 

A claim for the price of liquor sold to the bankrupt in violation of a 
state law is not provable in bankruptcy. In re Paddock, 6 N. B. R. 132; 
18 Fed. Cas. 973 (1872). 

An option, commonly known as a "put," is a gaming contract, and 
void as against public policy, and cannot be proved as a debt in bank- 
ruptcy. In re Chandler, 9 N. B. R. 514; 5 Fed. Cas. 443. 

Contracts of sale that are Intended to be settled, not by the actual de- 
livery of the property, but by paying the difference In price at some 
future time, are gambling contracts, and the proof on a note for an 
indebtedness growing out of such transactions was expunged on motion 
of the assignee in bankruptcy. In re Green, 7 Biss. 338; 10 Fed. Gas. 1084. 

A court of bankruptcy will not allow proof of a claim of brokers carry- 
ing stock on a margin who might have sold at a profit at the time of the 
commencement of the proceedings, but had subsequently closed it out 
at a loss. In re Daniels, 6 Biss. 405; 6 Fed. Cas. 11G7. 

To charge an indorser on a demand note, demand must be made within 
a reasonable time. After a lapse of four years, a claim of this kind can- 
not be proved against the estate of a bankrupt indorser. In re Craw- 
ford, 5 N. B. R. 301; 6 Fed. Cas. 771. 



Estates. 393 

A creditor was allowctl to prove bis original debt as a claim, notwith- 
stauding the entry ol' a judgment in his favor by a justice of the peace 
for the same indebtedness. In re Vickery, 3 N. B. R. 696; 28 Fed. Cas. lltS. 

Judgments for torts or in aitious cr contractu were held to be provable 
In bankruptcy, under tlie Act of 1S41. In re Oomstock, 5 Law Rep. 163; 6 
Fed. Cas. 231 (1S42I. 

A judgment against the principal debtors and a surety will not pre- 
vent the creditor i)roving his claim against the principal debtors in banlt- 
ruptcy. In re Kintzinger ct al., 19 N. B. R. 152; 14 Fed. Cas. 709. 

Before the filing of a petition, a judgment had. been recovered against 
the bankrupt in a state court and he had appealed. Held, that the judg- 
ment was conclusive as against the banlcrupt to enable the creditors to 
prove it as a debt. In re Leszynsky, 3 Ben. 487; 15 Fed. Cas. 397. 

A claim may be proved in bankruptcy, notwithstanding judgment was 
entered upon it after the commencement of the proceedings. In re Brown, 
5 Ben. 1; 4 Fed. Cas. 328. 

A debt that existed at the time of the filing of cne petition in bank- 
ruptcy was subsequently, and before the adjudication, reduced to a judg- 
ment. The district court for the eastern district of Michigan held that 
the Judgment represented the same debt in another form, and might, 
therefore, be proved in bankruptcy. In re Crawford, 3 N. B. R. 698; 6 
Fed. Cas. 766. 

An action for personal injuries was commenced against the bankrupts 
prior to the filing of the petition, and was prosecuted to judgment with- 
out leave of the court in bankruptcy. It was held that the claim was 
provable against the estate. In re Hennocksburgh et al., 6 Ben. 150;- 11 
Fed. Cas. 1136. 

An assignee in bankruptcy recovered from a creditor the amount that 
he had collected by judgment and execution, whereupon the creditor 
filed proof of his debt. The court allowed the proof to stand upon ascer- 
taining that there was more than enough money in the estate to pay 
all other creditors in full, holding that the creditor -had a right to all 
surplus as against the bankrupt. In re McGuire, 8 Ben. 452; 16 Fed. 
Cas. 133. 

Held, that the United States could prove a claim for the value of goods, 
notwithstanding a Judgment of forfeiture of the same goods for viola- 
tion of the customs revenue laws had previously been rendered. In re 
Vetterlein et al., 13 Blatchf. 44; 28 Fed. Cas. 1170. 

A creditor had recovered a judgment against the bankrupt, who claimed 
that it was less than was due. His claim to have the judgment set 
aside, and to recover the amount really due, was held to be a provable 
debt in bankruptcy proceedings. In re Van Buren, 19 N. B. R. 149; 28 
Fed. Cas. 953. 

Judge Lowell, of the district court of Massachusetts, used this language: 
" Upon a careful examination of the decisions, I am of opinion that a 
judgment obtained after the adjudication in bankruptcy creates a new debt 
which cannot be proved In bankruptcy, and that the Judgment creditor 



294 The Bankeuptcy Law. 

eannot oppose the discharge because he has no provable debt, and be- 
cause the discharge will be no bar to the judgment." In re Gallison et al., 
2 Low. 72; 9 Fed. Gas. 1009. 

" A debt upon which a judgment of law is founded is merged In that 
judgment, and extinguished by it, and the judgment constitutes a new 
debt wiiich takes its date from the time of the recovery. The debt, there- 
fore, of L. N. B. & Co., upon which their suit was brought against the 
banlirupt, was extinguished by the judgment which they obtained. It 
no longer existed. It has had no existence since the rendition of that 
judgment, and can never again be called into life. The judgment itself 
constitutes a debt, and it had no existence at the time of the adjudication 
of bankruptcy, and is not, therefore, provable against the bankrupt's 
estate." In re Williams, 2 N- B. K. 229; 29 Fed. Gas. 1325. 

A claim for damages for tort is not a provable claim in bankruptcy, 
unless put in judgment against the bankrupt individually before adjudica- 
tion, in which case it could be proved. In re Schuhardt, 8 Ben. 585; 15 
N. B. R. 161; 21 Fed. Gas. 739 (1876). 

A judgment for a fine imposed upon the bankrupt as a punishment pre- 
scribed by law for the commission of a crime of which he had been duly 
convicted, was held not to be provable in bankruptcy. In re Sutherland, 
Deady, 416; 23 Fed. Gas. 456. 

Damages for a tort cannot be proved against the estate of a bankrupt 
until they have been assessed. In re Bailey et al., 2 Woods, 222; 2 Fed. 
Oas. 362. 

A verdict in an action for tort, no judgment therein having been 
entered, cannot be proved in bankruptcy, nor can a judgment in such 
an action entered after the filing of the petition in bankruptcy. In re 
Black V. McOlellan, 12 N. B. R. 481; 3 Fed. Gas. 504. . 

Where by the terms of a lease the rent of the bankrupt is payable 
monthly, it was held that the landlord could not prove a claim for any rent 
accruing after the filing of the petition. In re May et al., 7 Ben. 23S; 16 
Fed. Gas. 1205. 

Damages for the nonperformance of the terms of a lease cannot be 
proved against an estate in bankruptcy. In re Hufnagel, 12 N. B. R. 554; 
12 Fed. Gas. 819. 

A landlord cannot prove the loss of rent accruing after the bankruptcy 
of his tenant, either as a debt or as unliquidated damages. Ex parte 
Houghton et al.; in re Fortune, 1 Low. 554; 12 Fed. Gas. 584. 

Rent which accrued after the adjudication cannot be proved or allowed 
against the estate of the tenants in bankruptcy. Bailey v. Loeb et al., 
2 Woods, 578; 2 Fed. Gas. 376. 

A landlord cannot prove against the estate of the bankrupt lessees un- 
liquidated damages under a lease which authorizes him to relet the 
premises, the lessees remainiug liable for the rent, and being credited 
with the sum actually realized. Ex parte Lake et al., 2 Low. 544- 14 Fed. 
Oas. 942. 

The bankrupt had leased a stand for five years at a fixed rental. After 



Estates. 395 

two years they demanded an Increase of the rent, and, upon the refusal 
of the tenants to pay it, they evicted them. The evicted tenants sought 
to prove a claim against the estate of the lessees in bankruptcy. The 
court held that probable profits are inadmissible as a measure of dam- 
ages. In re Leland et al., 8 Ben. 254; 15 Fed. Cas. 291. 

A landlord having re-entered and relet the leased premises under 
authority -conveyed in the lease, sought to prove a claim, not only for rent 
due at the time of the bankruptcy, but the amount of the deficiency in 
the rent for the whole term of the lease. He was only allowed to prove 
the rent due at the time of the bankruptcy; bvit the court added that 
there might be a valid claim for the value of the use and occupation of 
the premises by the assignee after the commencement of the proceed- 
ings. In re Croney et al., 8 Ben. 64; 6 Fed. Cas. '863. 

A note given to a married woman before marriage passes to her husband 
upon her marriage under the common-law rule, and the subsequent pas- 
sage of a separate property act does not abrogate his interest. When he 
collects and retains the money on such a note, the wife cannot prove the 
amount against him as a claim in bankruptcy. In re Jones, 6 Biss. 68; 
13 Fed. Cas. 927. 

Held, under the Act of 1867 (section 5070, R. S.), that the payment of 
a part of a debt by a surety does not admit proof of the same against 
the principal until the creditor is paid in full. In re Hollister, 3 Fed. Rep. 
452. 

The insolvent maker of accommodation notes can only prove the amount 
of the dividend actually paid by him against the estate of the bankrupt 
payee. In re Sterling et al., 1 Fed. Rep. 167. 

The indorser of a note made by the bankrupt proved his claim. Later 
the first note was taken up, and a new one given. The court thereupon 
ordered the proof to be stricken out. In re Montgomery, 3 Ben. 567; 17 
Fed. Oas. 621. 

The indorser paid a note made by the agent of a company, the proceeds 
of which went to the use of a bankrupt firm of which he was a member. 
The indorser proved the claim in bankruptcy, and recovered judgment 
against the company. The court held that the company could, not also 
prove the claim. In re Morse et al., 11 N. B. R. 482; 17 Fed. Cas. 850. 

B., to whom certain notes had been sent for discount, failed to pay the 
drafts drawn upon him for the proceeds. His claim in bankruptcy against 
the indorser of the notes was rejected. In re Howard, 6 N. B. R. 372; 2 
Fed. Cas. 628. 

Where a creditor accepts a sum less than the amount of his debt in 
full satisfaction, the debt is discharged by that transaction, and no 
claim can be made by his legal representatives against the estate of the 
debtor in bankruptcy. Bank of N. C. v. Dewey, 19 N, B. R. 314; 2 Fed. Cas. 
670. 

The laws of New York forbade a savings bank to discount commercial 
paper, and provided that notes so discounted should be void, and that the 
money so loaned or paid on the discount of the notes could not be recovered 



396 The Bankeuptcy Law. 

back. A savings bank that had discounted such paper proved up its claim 
before the register. The court ordered the proof to be expunged. In re 
Jaycox at al., 13 Blatehf. 70; 13 Fed. Cas. 393. 

The bankrupt, who was indebted to A., was garnished before the filing 
of the petition, and defaulted. A. proved his debt against the bankrupt, 
and later attaching creditors, having obtained judgment and issued execu- 
tion, proved up the debt due to A. against the bankrupt by virtue of the 
garnishment. On application, the proof was expunged, the court holding 
that they were not creditors of B. at the date of the bankruptcy. Ex parte 
Columbian Ins. Co., 2 Low. 5; 6 Fed. Gas. 176. 

A member of a firm procured the bankrupt to make two notes, payable 
to the firm, for his accommodation, promising that the firm would pay 
them at maturity. The notes were indorsed vrith the firm name by the 
partner who procured them, and he discounted them at the bank and 
used the proceeds. Another partner, who had no knowledge of the transac- 
tion at the time, paid the notes, and made proof of them in bankruptcy 
against the estate of the maker. The court decided tliat the latter was 
bound by the knowledge of his partner that the bankrupt had received 
no consideration for the notes, and that the proof of tie claim must be 
expunged. Capelle v. Hall, 12 N. B. E. 1; 5 Fed. Cas. 34. 

It was held to be a violation of the Bankrupt Act of 1867 for one mem- 
ber of an insolvent firm to give a note without the consent of his part- 
ners. Such a note cannot be proved in bankruptcy against the estate of 
the copartnership. In re Golder, 2 Hask. 28-; 10 Fed. Oas. 547. 

Following the recent English rule that the accommodation maker of a 
note is entitled to the rights of a surety, as respects a holder with notice, 
Judge Dillon afiirmed a decision of the district court expunging proof 
on such a note against the accommodation maker who had been discharged 
by an extension of time to the principal. In re Goodwin, 5 Dill. 140; 10 
Fed. Cas. 617. 

A note having been proved against the bankrupt Indorser, and it ap- 
pearing that an extension of time had been given to the principal, the 
proof was ordered to be expunged. In re Granger et al., 8 N. B. R. 30; 10 
Fed. Cas. 958. 

One partner signed the firm name to' a note and indorsed it individually. 
It was payable on demand. No demand was made for five years. Held, 
that the note could not be proved against the Indorser in bankruptcy. 
In re Grant «t al., 6 Law Rep. 158; 10 Fed. Oas. 970 (1843). 

L. and D. were members of a firm which was bound by the covenants 
of a lease to pay rents for several years. They retired from the firm, 
which was reorganized, and the new firm became bankrupt. L. and D. 
offered to prove a claim against the estate growing out of their liability 
on the covenants of the lease, but the proof was rejected by the court. Ex 
parte Lake et al., 2 Low. 544; 14 Fed. Cas. 942. 

When a holder of a note has received partial payment from the maker 
before proving his claim against the indorser, he can prove only the bal- 
ance. Ex parte Harris et al., 2 Low. 5CS; 11 Fed. Cas. 606. 



Estates. 397 

A partner cannot prove his claim against a bankrupt firm of which he 
is a member in competition with other creditors of the firm; nor when 
the members of one firm are all partners in another firm which becomes 
banlsrnpt can they prove their claims in bankruptcy against such firm. 
In re Savage, 16 N. B. R. 368; 21 Fed. Oas. 545 (1878). 

A member of a firm insolvent at the time drew money from its assets 
for private use. Held, that the assignee in bankruptcy of the firm could 
not prove the money so drawn as a claim against his separate estate. In 
re Jlay et al., 19 N. B. R. 101; 16 Fed. Cas. 1209. 

A member of a firm sold his interest in his business to his copartner, 
and at the same time assumed all the firm debts. Later he became a 
bankrupt. It was held that the copartner, who had not paid anything on 
such debts, could not prove any claim against the estate. In re Phelps, 
9 Ben. 286; 19 Fed. Oas. 435. 

Certain creditors signed an agreement with the debtor that if he would 
give them notes for 50 per cent, of their claims, they would release 
him from the balance, provided that the agreement was signed by all 
of the principal creditors. He gave the notes and paid two of them. 
Proceedings in bankruptcy were then commenced against him, and one 
of the signing creditors (a corporation) filed proof for the whole amount 
of its original debt on the ground that the agreement had not been 
signed by all the principal creditors. Held, that it was estopped by having 
accepted the notes, and that the proof must be reduced to^ the amount 
of the unpaid notes. In re Decker, 8 Ben. 81; 7 Fed. Oas. 324. 

The holder of an indorsed note signed a consent to the discharge of 
the maker, who was not able to pay the percentage of his debts required 
by the Bankrupt Act of 1867. Subsequently, the indorser was adjudicated 
a bankrupt, and the holder sought to prove the note as a claim against his 
estate. The proof was rejected on the ground that he had released the 
indorser. Quoting section 5118, E. S., the court said: " I think that this 
section of the bankrupt law only applies to a discharge in bankruptcy 
merely, and cannot be held to refer to or have in view any of the parties 
having a release of liabilities at common law or in equity." In re Mc- 
Donald, 14 N. B. R. 477; 16 Fed. Oas. 36. 

The assignee in bankruptcy sought to expunge the proof of a claim 
arising on notes which the holder had purchased at a discount exceeding 
lawful interest, and set up that the notes were accommodation paper. 
One member of the bankrupt firm had stated to the holder that the notes 
were commercial paper. The court held that there must be very clear 
proof that the notes were made or indorsed for accommodation only, 
and that at all events the firm, and their assignee in bankruptcy, were 
estopped from setting up that it was accommodation paper by the repre- 
sentation of one of the partners to the contrary. In re Many et al., 17 
N. B. R. 514; 16 Fed. Cas. 676. 

The bankrupt had been in the habit of indorsing accommodation notes 
for C. To secure these indorsements, C. gave him five notes, 'amount- 
ing to over $5,000. The bankrupt, who had paid nothing on the notes 



398 The Bankeuptct Law. 

indorsed for O., indorsed and transfeiTed C.'s notes to D. H. for about 
$1,000, and D. H. sold them to B. for property of about that value. At 
that time they were all past due except one. B. seeking to prove up 
the notes against the estate of the bankrupt, the court held that until the 
bankrupt had been called upon to pay the notes he 'had indorsed for 
O.'s accommodation, they could not be proved up by any one holding 
them without paying a valuable consideration, or with notice that there 
was no consideration therefor; that D. H. was chargeable with notice 
under the particular circumstances of the case, and that B. did not stand 
in any better position than D. H. In re Hook, 11 N. B. R. 282; 12. Fed. 
Cas. 463. 

The plaintiff brought suit against the assignee in bankruptcy of E. & B. 
on an accommodation Indorsement. Held, the fact that the maker dis- 
counted the note at the plaintiff bank was notice that the indorsement 
was for accommodation only, and that it was obligatory upon the bank to 
ascertain whether one partner was authorized to sign the firm name as 
an accommodation indorser. Lemoine v. Bank of North America, 3 Dill. 
44; 15 Fed. Cas. 809. 

A bankrupt who had bought oats for customers on margins, and agreed 
to hold it, sold it without their knowledge. Soon after he became bank- 
rupt. About a year afterward, the customers brought a suit against the 
assignee in bankruptcy for damages. The question being upon the measure 
of damages, it was held that the plaintiffs could not recover for any rise 
in price subsequent to the bankruptcy. Lehman et al. v. Smith, 15 Fed. 
Cas. 258. 

A note given by a partner in the course of his separate business, the 
proceeds of which were not received by the firm, cannot be proved in 
bankruptcy against the joint estate even though it was signed in the firm 
name. In re Forsyth et al., 7 N. B. R. 174; 9 Fed. Cas. 465. 

A creditor who has sold a note of the bankrupts to a purchaser in their 
behalf, at a discount, cannot prove the balance against the estate. In re 
Lathrop, 3 Ben. 490; 14 Fed. Cas. 1170: 

Statutes of Limitations. 

A court of bankruptcy will be governed by state statutes of limitation 
where they are properly applicable. In re Eldridge et al., 2 Hughes, 256; 
8 Fed. Cas. 414. 

A debt cannot be proved in bankruptcy which is barred by the law of 
the state in which the petition is filed. In re Kingsley, 1 Low. 216; 14 
Fed. Cas. 587. 

The law of the state where the bankrupt resides fixes the limitations, 
without respect to the residence of the creditor. In re Hardin, 1 Hask. 
163; 11 Fed. Cas. 488. 

The law of limitations of a state where the bankrupt resides is held to 
apply to proof of a claim in bankruptcy. Nicholas v. Murray, 5 Saw. 320; 
18 Fed. Cas. 174. 



Estates. 299 

A demand being barred by the statute of limitations of tlie state where 
the banlirupt resides and thereby extinguished, is, therefore, not provable 
against the estate of the bankrupt. (Citing In re Kingsley, Fed. Oas. 
No. 7819; In re Hardin, id. 60i8; In re Sheppard, id. 1273; In re Ray, Id. 
11589.) In re Noesen, 7 Ohi. Leg. News, 419; 18 Fed. Cas. 294. 

No debt can be proved in bankruptcy on which an action could not be 
maintained against the bankrupt iu the state where the petition is filed 
if proceedings in bankruptcy had not been instituted. So held in a case 
where the claim sought to be proved consisted of two notes barred by the 
statute of limitations of Minnesota. In re Doty, 16 N. B. B. 202; 7 Fed. 
Cas. 957. 

Judge Blodgett said: " I shall allow the defense of the state statute of 
limitations by the assignee to the claim of a creditor seeking to prove his 
debt in bankruptcy wherever that defense might have been made in a 
suit in the state where the debtor resides." In re Reed, 6 Biss. 250; 20 
Fed. Cas. 408. 

Federal courts sitting within their respective states regard their statutes 
of limitations, and give them the interpretation and efifect which they 
received in the courts of the state. In re Noesen, 7 Ohi. Leg. News, 419; 
18 Fed. Cas. 294 (1875). 

It was held in the case cited that a debt might be proved in bankruptcy 
though barred by the statute of limitations of the state where the bank- 
rupt resides. In re Shepard, 1 N. B. R. 439; 21 Fed. Cas. 1250 (1868). 

Referring to the Law of 1867, Judge Blatchford said: " No provision 
is found in the act which destroys the provability of a debt because it is 
barred by the statute of limitations of one state." In re Ray, 2 Ben. 53; 
20 Fed. Cas. 322. 

A debt which is barred by the statute of limitations, but which was 
included in the debtor's schedules, may be proved and allowed. In re 
Hertzog, 18 N. B. R. 526; 12 Fed. Cas. 59. 

The fact that a bankrupt entered a debt on his schedule which was 
barred by the statute of limitations will not revive it. In re Kingsley, 1 
Low. 216; 14 Fed. Cas. 587. 

A debt barred by the statute of limitations is not revived by entering 
it on the bankrupt's schedule of liabilities. In re Hardin, 1 Hask. 163; 
11 Fed. Oas. 488. 

The period between the commencement of proceedings and the order 
denying a discharge is not included or considered in determining the 
statutoiy limitation of claims against the bankrupt. Hall v. Greenbaum, 
33 Fed. Rep. 22. 

The statute of limitations will not run against a party having a cause 
of action against the bankrupt while the right of action was suspended 
on account of proceedings in bankruptcy. Greenwald v. Appell, 17 Fed. 
Rep. 140. 

Where the bar of a statute of limitations is not complete before adju- 
dication, it does not commence to run. In re Graves, 9 Fed. Rep. 816; In re 
McKinney, 15 id. 912. 



300 The Bankruptcy Law. 

The running of the statute of limitaUons is stopped by the filing of a 
petition in baulsruptcy. In re Maybin, 15 N. B. E. 4(j8; 16 Fed. Cas. 1221. 

The court put the proposition that the statute of limitations ceases to 
run against the creditor of a banlirupt at the commencement of the pro- 
ceedings on two grounds: First, that the filing of the petition, and the 
including of the debt in the schedules by the debtor, is a new promise; 
second, that the effect of the adjudication in bankruptcy is to vest the 
assets in the assignee as a trust, against which the statute of limitations 
will not run. In re Bldridge et al., 2 Hughes, 256; 8 Fed. Gas. 414. 

Claims provable and not barred by the statute of limitations when the 
proceedings in bankruptcy are commenced must remain provable after the 
period of limitation has expired. In re Wright, 6 Biss. 317; 30 Fed. Cas. 
661 (1875). 

The statute of limitations may be waived, and when relied on as a 
defense must be set up by the debtor; hence a claim may be proved in 
bankruptcy notwithstanding it appears on its face that it is barred by the 
statute. In re Knoepfel, 1 Ben. 398; 14 Fed. Gas. 783. 

Usury as a Defense. 

A defense on the ground of usury is not open to an assignee In bank- 
ruptcy. In re Kintzinger et al., 19 N. B. R. 152; 14 Fed. Cas. 709. 

Notes given for excess of interest over legal interest are not provable in 
bankruptcy. Shaffer v. Fritchery, 4 N. B. R,. 548; 21 Fed. Cas. 1147 (1871). 

When an assignee seeks relief from a contract of the bankrupt on the 
ground of usury, he must tender the amount borrowed, and he will then 
be released from the usurious overplus. Under the laws of Wisconsin the 
right to avoid such a contract was held to be confined to the borrower. 
Bromley v. Smith et al., 2 Biss. 511; 4 Fed. Cas. 209. 

A creditor seeking to prove a debt is in the position of one who brings 
a suit in an action at law. Upon the tender of such proof, the assignee 
can oppose the same on the ground of usury. It was held under the laws 
of Illinois, if the debt was usurious, the claimant forfeits the whole 
interest. In re Prescott, 5 Biss. 523; 19 Fed. Cas. 1286. 

Where a bank charged a higher rate of interest than its cliarter allowed, 
but the charter failed to prescribe a penalty, it was held that a contract 
with excessive interest was only void as to the excess. Where the note 
was paid, neither the borrower nor his assignee in bankruptcy could re- 
cover the principal. Darby v. Boatman's Sav. Inst., 1 Dill. 141; 6 Fed. 
Cas. 1179. 

In the case of a claim founded on a note tainted with usury under the 
laws of the state, Judge Deady, of the district court of Oregon, used this 
language: "Because this court may not have jurisdiction to enforce all 
the penalties consequent upon this illegal transaction by the laws of the 
state, it by no means follows that it cannot inquire into its legality when 
the question arises in a proceeding duly before it. This court has express 
jurisdiction to allow or disallow claims against the estate of a bankrupt, 



Estates. 301 

and in so doing must determine their legality. According to the law of 
this state, this claim is illegal, and must, therefore, be rejected." In re 
Pittock, 2 Saw. 416; 19 Fed. Gas. 745. 

When Interest Will be Allowed. 

Interest will be allowed upon a claim which accrued after the com- 
mencement of proceedings. In re Bonsfield & Poole M. Co., 17 N. B. R. 
153; 3 Fed. Cas. 1016. 

When creditors objected to a claim, and thereby caused delay in the 
payment of. a dividend, the creditor should be allowed interest from the 
time the dividend became payable. In re Kintzinger et al., 19 N. B. R. 
238; 14 Fed. Cas. 713. 

When there is sufficient money belonging to the estate for the payment 
of all the debts, any surplus may be applied to the payment of interest 
from the filing of the petition to the time when the principal was paid. In 
re Hagan, 6 Ben. 407; 11 Fed. Cas. 154. 

The assignee having sold certain real estate of the bankrupt discharged 
of liens, the court ordered him to allow interest on the lien claims to the 
date of making his report of distribution. In re Devore, 16 N. B. R. 56; 7 
Fed. Cas. 570. 

A surplus in the hands of the assignee after the payment of all debts 
will be applied to the payment of interest, computed from the day of 
adjudication. In re Town et al., 8 N. B. R. 40; 24 Fed. Cas. 85. 

As a general rule, interest on a claim ceases with the adjudication in 
bankruptcy; but a secured creditor can apply the proceeds of his security 
to the payment of principal and interest until paid, when it is so provided 
In the contract. In re Haake, 2 Saw. 231; 11 Fed. Gas. 134. 

Under the Act of 1867 the provable debts against a bankrupt include 
Interest from maturity until adjudication, and when the interest is not 
payable until after the time of adjudication. Interest from that time until 
maturity should be deducted in making proof of claim. In re Orne, 1 N..' 
B. R. 79; 18 Fed. Cas. 821 (1867). 

Miscellaneous. 

The court considers and construes section 14 of the Act of 1867 relating 
to contingent liabilities of the bankrupt. U. S. v. Throckmorton et al., 
8 N. B. R. 309; 28 Fed. Cas. 158. 

Courts of bankruptcy will respect the statute of frauds of the states 
where the transactions occur. Edmondson v. Hyde, 2 Saw. 205; 8 Fed. 
Cas. 324. 

The finding as a jurisdictional fact that the petitioning creditor has a 
valid claim to a certain amount does not conclude the assignee or cred- 
itors from contesting his right to participate in the assets. In re Cleve- 
land Ins. Co., 22 Fed. Rep. 200. 

Where a note is given in renewal of another, the bankrupt will be per- 



303 The Bankeuptcy Law. 

mitted to show how and when the indebtedness represented by the first 
note originated. In re Perldns et al., 6 Biss. 185; 19 Fed. Oas. 237. 

A certificate of deposit issued by private bankers ceases to be negotiable 
paper upon the commencement of proceedings in bankruptcy. In re Sime 
et al., 3 Saw. 305; 22 Fed. Gas. 147. 

A waiver of the performance of conditions by a fire insurance company 
while solvent is binding on its assignee in bankruptcy. In re Firemen's 
Ins. Co., 3 Biss. 462; 9 Fed. Gas. 72. 

Where a loss by fire has been adjusted by the company and the insuree 
before the filing of a petition in bankruptcy against the former, it operates 
as a waiver of the limitation. Ibid. 

A provision in a policy of fire insurance limiting the right of action. to 
one year, is binding upon the bankrupt company; but it is complied with 
by proof of the debt in bankruptcy within that period. Ibid. 

The holder of a note who has received a partial payment from an 
indorser should prove the note in full against the bankrupt maker. Any 
dividends that he receives above the balance due, he must hold for the 
benefit of the indorser. In re Souther, 2 Low. 320; 22 Fed. Gas. 815i 

The bankrupt had made a contract by which he purchased certain goods 
to be delivered in installments and paid for as delivered. While insolvent, 
he called for an installment with no intention to pay for the same. It 
was held that the indebtedness accrued when the goods were delivered. 
Aimes v. Moir, 138 U. S. 306. 

A bankrupt indorser is liable only for the balance due on notes indorsed 
by him after deducting the amount paid by the original debtor. In re 
Pulsifer, 14 Fed. Rep. 247. 

On the foreclosure of a first mortgage on the property of the bankrupt, 
it was bought by the second mortgagee. The court refused to order the 
assignee to pay to the purchaser, out of the bankrupt's estate, money 
collected as rents of the mortgaged premises prior to the foreclosure, and 
also rejected a claim of the purchaser for taxes paid out of his purchase 
money. In re Foster, 6 Ben. 268; 9 Fed. Gas. 523. 

Claims of attorneys for services in prepai-ing a petition and schedules 
should be proved against the estate in the same manner as other claims 
against the bankrupt. In re Gies, 12 N. B. R. 179; 10 Fed. Gas. 339. 
[See notes to §§ 59 and 64.] 

Debts Having Priority. 
§ 64. Debts which have 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 dividends to creditors, and upon filing the receipts 
of the proper pubHc officers for such payment he shall be credited 
with the amount thereof, and in case any question arises as to the 
amount or legality of any such tax the same shall be heard and deter- 
mined by the court. 



Estates — Peiokities. 303 

(b.) The debts to have priority, except as herein provided, and to 
be p